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Civil Petition No. 612 of 1978, decided on 2nd April, 1979.

(On appeal from the judgment and order dated 8‑11‑1978 of the Lahore High Court at Lahore in S. A. O. No. 614 of 1978).

‑‑ S. 13(6) read with Constitution of Pakistan (1973), Art. 185(3) Leave to appeal‑Contention that petitioner tenant being under bona fide impression that according to order passed by Rent Controller on 20th April, 1977 last date for deposit of monthly rent could be 15th of each succeeding month and due to such bona fide mistake he deposited rent for month of October, 1977 in good faith on 15th of November, 1977‑Also contended that order passed by Rent Controller on 20th April, 1977 for deposit of future monthly rent before 15th of each succeeding calendar month could only mean that rent should be deposited before the expiry of 15th day of month, i.e., by midnight of night between 15th and 16th day of succeeding calendar month Questions of considerable general importance having been raised for a more authoritative pronouncement, leave to appeal granted.‑[Leave to appeal].

Sarfaraz Khan v. Muhammad Abdul Rauf P L D 1969 Kar. 176 ; Fazal Haque v. Abdul Latif Akhund P L D 1975 Kar. 681 and Muhammad Hussain v. Mian Mahmood Ahmad and 3 others P L D 1970 Lah. 140 ref.

Mian Hidayat Ali Talib, Advocate Supreme Court and Muhammad Naazar Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 2nd April, 1979.

‑‑This is a petition for special leave from the order dated 8th of November, 1978, passed by a learned Judge of the Lahore High Court at Lahore whereby he dismissed the S. A. O. No. 614 of 1978 filed by the petitioner against the respondent herein.

Briefly stated the relevant facts are these : The respondent brought a petition for ejectment of the petitioner herein from a house in dispute under section 13 of the Urban Rent Restriction Ordinance, 1959. In the course of the proceedings on the 20th of April, 1977, the learned Rent Controller passed an order under section 13(6) of the Ordinance directing petitioner to deposit the monthly rent for the premises before the 15th of every succeeding month. However, it appears that the rent for the month of October, 1977, was in fact deposited by the petitioner only on the 15th of November, 1977. Therefore, on the 20th of November, 1977 the learned Rent Controller proceeded to strike off the defence of the petitioner and ordered the ejectment from the premises. This order was upheld in appeal rejected by the Additional District Judge, Lahore, on the 8th of October, 1978, and the second appeal against the order was likewise dismissed by a learned Judge of the High Court on the 8th of November, 1978. Hence this petition for special leave from the order passed by the High Court.

We have heard the learned counsel for the petitioner. In his statement recorded by the Rent Controller on the 20th of November, 1977, the petitioner explained that he was under bona fide impression that according to the order dated 20th of April, 1977, passed by the Rent Controller the last date for the deposit of the monthly rent was 15th of each succeeding month and that due to this bona fide mistake on his part he had deposited the rent in question for the month of October, 1977, in good faith on the 15th of November, 1977 thinking it to be within time.

But in the opinion of the learned Rent Controller the petitioner was wilful in not depositing the rent for the month of October, 1977, before the 15th of November, 1977. This finding was upheld by the higher Court.

Before us the learned counsel for the petitioner submitted that in the circumstances of this case the omission in the payment of the rent was not wilful and was due to a bona fide mistake only and the petitioner could not be said to have "defaulted" in the deposit of the rent. In this connection the earned counsel relied on Sarfaraz Khan v. Muhammad Abdul Rauf P L D 1969 Kar. 176 in which in similar circumstances he tenant had by a mistake in interpreting the Controller's order deposited the rent not before but on the 15th day and the High Court held that such a bona fide mistake on the part of the tenant could not be made a ground to hold that he was in default. Similarly, in Fazal Haque v. Abdul Latif Akhund P L D 1975 Kar. 681 the tenant deposited the rent on the 15th of month and not before it and the High Court found that the default was not wilful and his defence was not liable to be struck off. In this connection the learned counsel has also advanced an ingenious argument before us to contend that the order dated 20th of April, 1977, passed by the Rent Controller under section 13(6) of the Ordinance for the deposit of the future monthly rent before the 15th of each succeeding calendar month when properly interpreted could only mean that it should be deposited before the expiry of the 15th day of the month, in other words by the midnight of the night between the 15th and 16th day of the succeed in calendar month. But in this connection our attention has been drawn to Muhammad Hussain v. Mian Mahmood Ahmad and 3 others P L D 1970 Lah. 140 which does not support this contention.

We find that in this case questions of considerable general importance have been raised before us for a more authoritative pronouncement. We therefore, grant leave to appeal to the petitioner.

Security Rs. 1,000.

Appeal to be made ready on the present record for an early date of hearing. In the meantime the execution of the ejectment order is stayed on the condition that the petitioner shall regularly deposit the future monthly rent with the Rent Controller before the 15th of each succeeding calendar month.

Leave granted.

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