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Writ Petition No.1413 of 1983, decided on 10th July, 1984.
--Ss.13 & 15(5)--Provisional Constitution Order (1 of 1981), Art.9- Default in payment of arrears of rent--Appeal against ex parte order of ejectment passed by Rent Controller--- Appellate Court fixing two dates one for making payment of arrear of rent and other for hearing of appeal but counsel for petitioner under a bona fide mistake taking only one date i.e. date for hearing of appeal as date fixed for deposit of rent as well as hearing of appeal and informing petitioners accordingly--Appellate Court dismissing appeal summarily on ground of arrear of rent having not been paid on due date and rejecting affidavit filed by counsel for petitioner--Held, case of petitioner being a case of bona fide mistake, there could not be any default on their part and appellate Court ought not to have dismissed appeal summarily--Order ..f appellate Court dismissing appeal set aside and appeal ordered to be treated as still pending for disposal in accordance with law.
Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530 rel.
Taj Muhammad Khan Langah for Appellant.
Zafar Pasha Chaudhry for Respondents Nos. 1 to 3.
Date of hearing: 10th July, 1984.
In this constitutional petition the legality of the order dated 6-2-1983 of the Additional District Judge has been called into question.
2. On 5-6-1982 a Rent Controller at Lahore made an ex parte order of ejectment against the petitioner. From this order the petitioner preferred an appeal before the Additional District Judge. On 24-10-1982 the learned Additional District Judge directed the petitioner to deposit the arrears of rent which after some deduction came to Rs.1,900 by 24-11-1982 and the future rent before 15th of each succeeding month and fixed the date of hearing of the appeal as 18-12-1982. The petitioner did not deposit the arrears by 24-11-1982 but did so on 16-12-1982. Upon this the landlords, respondents Nos.1 to 3, moved the learned Additional District Judge to dismiss the appeal of the petitioner as required by section 15(5) of the Punjab Urban Rent Restriction Ordinance, 1959. This application was allowed and by the impugned order the appeal of the petitioner was dismissed summarily and he was directed to hand over the vacant possession of the premises to the landlords within two months.
3. It is stated on behalf of the petitioner that the order of the learned Additional District Judge dismissing the appeal summarily suffers from an error of law apparent on the face of the record. It is argued that the default which entails summary dismissal of the appeal under section 15(5) of the Punjab Urban Rent Restriction Ordinance necessarily involves an element of negligence or fault and means something more than mere non-compliance and that in this case there was no default as the failure of the petitioner to make the deposit by the date fixed was entirely on account of a bona fide mistake on the part of his counsel. In support of the meaning of the word 'default' reliance has been placed upon Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530.
4. I find merit in the contention of the learned counsel. It is to be noticed that on 24-10-1982 the learned Additional District Judge had fixed two dates, one for making the deposit and the other for hearing of the appeal. An affidavit was filed on behalf of counsel for the petitioner before the learned Additional District Judge to the effect that he had misunderstood the order as announced and thought that only one date that is, 18-12-1982, had been fixed both for making the deposit and hearing of the appeal and that he had informed the petitioner accordingly. The learned Additional District Judge rejected the affidavit with the following observations:-
"I am however clear in my mind that I had very, clearly given two separate dates, one for deposit of arrears of rent and the other for arguments in the appeal. There could be no chance or misunderstanding the date for deposit ,",of arrears of rent."
No doubt the learned Judge had fixed twos parate dates, one for the deposit and the other for hearing of the appeal but this does not necessarily detract from the credibility of counsel's affidavit that he did not catch the first date 24-11-1982 and got the impression that only one date, that is, 18-12-1982 has been appointed for both purposes In Hashim Khan v. Ghulam Nabi 1973 S C M R 112 counsel misinterpreted the order of the Rent Controller with regard to the deposit of the monthly rent and advised his client accordingly. Consequently, the client did not comply with the order of the Rent Controller. It was held by supreme Court that it was a case of bona fide mistake and as such there was no default. The case before me stands on the same footing. I should, therefore, think that the learned Additional District Judge ought not to have summarily dismissed the petitioner's appeal. I would accordingly declare the order of the learned Additional District Judge as of no legal effect. The petitioner's appeal should be treated as still pending and disposed of in accordance with law within two months. If the petitioner has ceased depositing the rent after the decision of the learned Additional District Judge he shall deposit the arrears upto date by 3-9-1984, and the rent for August, 1984 and subsequent months before the 15th of each succeeding months. There will be no order as to costs in this petition.
M. Y. H. Petition accepted.
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