Constitutional Petition No. S-1208 of 2011

                                                                                                                                                                                                                Date                                                         Order with Signature of the Judge                                                           


20th November, 2013.

Mr. Ghazain Magsi, Advocate

Mr. Naeem Suleman, Advocate for respondent.

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SYED MUHAMMAD FAROOQ SHAH, J.:-       Impugned is the order dated 11.10.2011, passed in FRA No. 306 of 2010, whereby the learned Additional District Judge, dismissed the appeal, by maintaining the tentative rent order dated 22.7.2010, recorded by the learned VIth Rent Controller Karachi-South, whereby the defense of the petitioner (tenant) was struck off under section 16 (2) of the Sindh Rented Premises Ordinance, 1979 and the application under section 15 of the Ordinance ibid was also allowed, directing the petitioner to vacate the demised premises within 45 days.


2.                     Precise relevant facts necessary for disposal of instant petition are that the respondent/ landlord filed Rent Case No. 1976 of 2007 against the petitioner, for his eviction, mainly on the ground of default in payment of rent. In non-compliance of tentative rent order dated 23.10.2009, passed on application under section 16(1) SRPO, 1979, the petitioner/ tenant was directed to adjust the past rent in the rent case up to 01.12.2009, which was being deposited in MRC and further directed to deposit future monthly rent on or before 10th of each English calendar month.


3.                     Heard arguments. Record perused.


4.                     Before proceeding further, it shall be advantageous to reproduce section 16(1) & (2) of Sindh Rented Premises Ordinance, 1979 as follows:


16. Arrears of rent.(1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.

(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under sub-section (1), his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf.”



5.                     By invoking the extra ordinary constitutional jurisdiction of this court, the learned counsel for the petitioner at the very outset submitted that the petitioner had made all efforts to deposit rent for the year 2010 in MRC No. 1158/1994, on 09.1.2010, as the 10th had fallen on Sunday, more-so, the file for the same could not be recovered from the concerned record room on that day and as per rules the petitioner had deposited the rent for the entire year of 2010 with the Rent Controller, on next working day. Learned counsel submitted that the rent amount could not be deposited on the 10th day of January due to the fact that this particular day fell on Sunday, hence having no recourse, the said amount was deposited on the next working day that is 11.1.2010( Monday), which was not a deliberate or intentional default on the part of the petitioner. Learned counsel submits that the Rent Controller has failed to appreciate that the respondents Nos. 1 to 4 were disputing the ownership of the property with one Mr. Shakeel Ahmed, as the petitioner also received two notices under section 18 of the SRPO, 1979. However, the petitioner attempted and adopted all necessary hectic efforts to comply the tentative rent order, but the file was not traceable in the record room, therefore, the rent was deposited for the entire year of 2010 on the next opening day. It is submitted that the learned Rent Controller has failed to appreciate that the rent could not be deposited on 09.1.2010 despite the fact that the challan had been issued on that date but the requisite bank was closed and therefore, the petitioner had no option but to deposit the rent after Sunday. Learned counsel submits that the rule of law laid down clearly implied that the rent could be deposited on the reopening day of the civil courts. In the case under consideration, no fault whatsoever would have been found if the petitioner had deposited the rent on the day of reopening of the civil courts. He cannot, therefore, be penalized if he deposited the rent on next opening day of the courts, as 10th fell on Sunday; It is next contended that the Rent Controller while passing the impugned order under section 16 of the Sindh Rented Premises Ordinance, 1979 striking off  the  defense  of  petitioner,  must necessarily look to   the  attending   circumstances  of   the   alleged   default   as   it   was   unavoidable

and was  beyond  the   control  of  the   tenant,  therefore,  the  order  of   ejectment  is 

 not tenable in law.  While placing reliance on the Apex Court ruling in the case of OBAID-UD-SALAM AND OTHERS V/S FAIZ MUHAMMAD KHAN & OTHERS (1987 SCMR 216), learned counsel submitted that the decision of the appellate court suffers from illegality and gross irregularity as under the civil court rules and by virtue of section 9 of the General Clauses Act, it was permissible that the deposit could be made on the day next after the public holiday. It is contended that according to section 10 of General Clauses Act, 1897, when any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day and within a prescribed period, then, if the court or office is closed on that day or on the last day of prescribed period, the act or proceedings shall be considered as done in due time, if it is done or taken on the next day afterwards on which the court or office is open and that period expires on holiday then the act should be considered to have been done within the period if that is done on the next day on which the court or office is open. This view was taken in the case reported as HARINDER SINGH V/S S. KARNAL SINGH (AIR 1957 SC 271). In such context, reliance has also been placed on a full bench ruling of our own Supreme Court, reported as SAFEER TRAVELS V/S MUHAMMAD KHALID SHAFI (PLD 2004 SC 690), wherein by referring plethora of rulings it is held in para 5 & 7 as follows:-


“5.       We have heard the learned counsel for the petitioner at length. We find that the monthly rent was deposited by the petitioner on 11th of December, 1999 and 11th of January, 2000 whereas the same was required to be deposited on or before 10th of December, 1999 and 10th of January, 2000. However, the delay of one day on both the occasions was on account of the circumstances beyond the control of the petitioner as 10th December, 1999 was declared to be a bank holiday and 10th of January, 2000 was a Eid Holiday. Therefore, the orders of the High Court as well of the Rent Controller were not justified.”


“7.       In our view, even where provisions of section 9 of the West Pakistan General Clauses Act 1956, or section 10 of General Clauses Act, 1897, in terms do not apply, the principles underlying said provisions can be invoked in appropriate cases in aid of justice, equity and good conscience. The legal maxim lex non cogit ad impossibilia is also attracted in such cases. The petitioner could not be penalized as it was not possible to deposit the rent on the last date fixed by the Rent Controller on account of being bank holiday and public holiday. The impugned judgment of the High Court is not sustainable at law. The deposit of rent by the petitioner on the day following the holiday would be deemed to be a valid deposit as if made on the last day fixed by the Rent Controller in terms of section 16(1) of the Ordinance, 1979.”


6.                     Conversely, learned counsel for the respondents supported the concurrent findings of both the courts below and submitted that it was an intentional and deliberate default in payment of rent within due time. In support of his contentions, reliance is being placed on cases reported as CH. MUHAMMAD SIDDIQUE V/S MUHAMMAD RASHID (1985 SCMR 21), CH. MUHAMMAD MASOOD AKHTAR KHAN V/S MUHAMMAD SIDDIQUE & OTHERS (1991 SCMR 199), ASHIQ ALI & ANOTHER V/S MEHAR ELAHI & 13 OTHERS (2001 SCMR 130) and KHADIM HUSSAIN V/S NASIR AHMED (2003 SCMR 1580).


7.                     In the case of Ashiq Ali & another (supra) there was non-compliance of the order of Rent Controller by the petitioners, passed under section 16 (1) of SRPO, 1979, as the petitioner/tenant continued depositing the rent in Misc. Rent Case.


8.                     In the case of Khadim Hussain (supra), in default, if the compliance of order of Rent Controller is established, the penal consequences in the form of defense of the tenant being struck off and the landlord being put into possession of the property by order of Rent Controller ought to be followed without taking any further proceedings. However it is held that It is in a very exceptional case, where a non-compliance of the order of Rent Controller is made for reasons beyond the control of a tenant or for other sufficient cause, that the time for such a deposit of rent may be extended by the Rent Controller” (Placitum-A) .


9.                     Learned counsel for the respondents has also placed his reliance on Ch. Muhammad Siddique (supra) wherein leave to appeal was granted on the ground whether tenant by mistake in interpreting Rent Controller’s order deposited rent not before but on 15th day of month, and therefore, in such a case it was a bonafide mistake on part of tenant and as such he could not be held to have made a default. (Page # 22 “Placitum-A”)


10.                   Reliance has been placed on the case of Ch. Muhammad Masood Akhtar Khan (supra), wherein the leave to appeal was granted to consider whether High Court was justified to interfere with the concurrent findings of both Civil Courts below, in IInd Appeal and held that the High Court’s order did not suffer from any infirmity and thus needed no interference.


11.                   Suffice is to say that the deposit of rent by petitioner/tenant on the day of reopening of the court was a valid deposit,  in light of the aforementioned citations, as the petitioner was not at fault, so as to penalize for not depositing the rent on 10th (last day) being Sunday. Admittedly, the 10th was public holiday (Sunday) and the petitioner had deposited the rent on the next day on Monday, which cannot be treated as a default. In the light of dictum as laid down by the Hon'ble Supreme Court in the cases cited above, the deposit made on the date next after the public holiday was valid but the learned courts below have seriously erred to hold that the petitioner had deposited the future monthly rent on 11.01.2010 with the delay of one day, though the petitioner/tenant could deposit the future monthly rent within time on 09.01.2010, after getting the bank rent challan, signed before the holiday and did not deposit instantly, which is non-compliance of tentative rent order on the part of petitioner/tenant is explicitly appearing willful and not a technical. It need not to reiterate that extreme penalty of striking off tenants defense would not be called for when non-compliance with order under section 16(1) SRPO, 1979 is technical default and not a willful. Unintentional and bonafide act on tenant’s part in depositing rent strictly in observance of letter and spirit of section 16 (1), cannot be equated with non-compliance with order under section 16(1), making tenant liable to eviction, as it was incumbent upon the Rent Controller before passing the tentative rent order to determine whether deliberate default had been committed in respect of rent of demised premises by the tenant or not.


12.                   Whatever mentioned above, the matter requires complete examination, including the existence of relationship of landlord and tenant in between the parties and alleged default in payment of rent, as averred in the ejectment application under section 15 of the Ordinance, 1979. It would be in the interest of justice that the matter should go back to the competent forum for decision afresh on all the legal and factual issues involved in the case. Resultantly, the impugned order dated 11.10.2011 passed in FRA No. 306 of 2010 and the order dated 22.7.2010 recorded by learned VIth Rent Controller, Karachi-South on application under section 16(2) of SRPO, 1979 are set aside. Petition is accordingly allowed with no order as to costs, with the direction to learned Rent Controller that all the questions involved should be decided according to law, applicable in the case in hand.


The Petition is disposed of in the manner indicated above





*Aamir/PS*                                                                                                                                           J U D G E