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First Appeal from Original Order No.30 of 1986, decided on 1^st December, 1986.

---Ss. 17(8)(9) & 24--Non-compliance of tentative rent order--Effect- Tenant deposited arrears of rent after about one-, month from last date given to him for such deposit, without explaining unavoidable circumstances which prevented him from complying with tentative rent order within stipulated period--Non-compliance of tentative rent order having been established, defence of tenant was struck off by Appellate Court order of condonation by Rent Controller was set aside.

Holy Trinity Church Trust, Lahore v. Ansari Brothers PLD 1963 (WP) Lah. 489; Messrs Ansari Brothers (Represented by 6 heirs) v. Holy Trinity Church Trust PLD 1971 SC 700; Syed Ghulam Shah Bukhari v. Muhammad Saeed Akhtar 1972 SCMR 428; S.J. Shah v. S.M. Aslam; 1982 CLC 622; Muhammad Ashraf Khan v. Mst. Fahmida Khanum PLD 1982 SC 398 and Fazal Ahmed etc. v. Rana Muhammad Ali PLD 1978 Lah. 1032 ref.

M. Bilal for Appellant.

Mansoor Ahmed for Respondent.

Date of hearing: 1st December, 1986.

Dispute in the first appeal directed against order dated 24-3-1986 of Rent Controller, Cantonment, Rawalpindi concerns erstwhile evacuee property bearing survey No.M/80 situate outside Massy Gate, Rawalpindi Cantt. It comprises of a shop and a residential portion at its back. It was put to auction and was purchased by appellant Mst. Zaib-un-Nisa, a little over two decades ago. Transfer documents viz. PTO and PTD were issued to her somewhere in 1960-62 by the Settlement Department. Respondent Altaf Hussain Shah, who was' in occupation of the property, was served with a notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 -intimating transfer of property as also demanding rent from him. As the occupant did not respond satisfactorily, appellant filed an application under section 17 of Act XI 1963 for his ejectment. Rent Application was contested and absence of relationship of landlord and tenant was pleaded. Respondent also brought a civil suit to challenge the validity of transfer made in favour of the appellant. Trial Court give him decree on 7-2'-1964. Against this decision, an appeal was filed in the Court of District Judge, who vide his order dated 21-9-1964 modified the trial Court's decree so as to restrain the appellant (Zaib-un-Nisa) from recovering rent of the shop until transfer in her favour was legalised. A further appeal filed in the High Court by the appellant (RSA 911/1964) was decided in her favour on 8-7-1974. The matter as to transfer of the property in favour of the appellant has attained finality and is no longer in dispute. In consequence of the result of the civil suit, appellant's ejectment petition was rejected by Rent Controller on 7-11-1964 and this order was affirmed on appeal on 27th January, 1965. After clearance of her title, she again moved an application on 30th January, 1965 for ejectment of the respondent, who in defence took up number of pleas but Rent Controller vide his well reasoned order dated 15-7-1969 rejected all, the contentions and found that relationship of landlord and tenant existed between the parties. This order was followed by another order dated 13-11-1969 passed under section 17 (8) of the Cantonment Rent Restriction Act, 1963 whereby the respondent, was directed to deposit Rs.11,266 as arrears- of rent before 12-1-1970. He was, however, also asked to deposit future rent at the rate of Rs.125 P.M. in the Court of Rent Controller It appears that order dated 15-7-1969 was assailed by the respondent in appeal before District Court. However, his appeal was dismissed by learned Additional District Judge, on 9-2-1971, and the orders passed by Rent Controller were maintained. However, Additional District Judge gave one month's time to respondent to deposit the arrears if not already deposited by him. Against order dated 9-2-1971, respondent preferred a constitutional petition (Writ Petition 289/ 1971) in this Court. It was heard alongwith Writ Petition 1615/11 /1976 and by a consolidated order passed on 15-5-1985, both the writ petitions were dismissed by this Court. After the dismissal the writ petition, rent case was taken up for hearing by the Rent Controller Cantonment. Appellant filed a miscellaneous application under section 17 (8) of the Rent Restriction Act and prayed that as the direction for deposit of arrears of rent was not complied with tenant's defence be struck off and appellant be givers possession of the property without further enquiry. This application was resisted by the respondent who claimed that the direction of the Rent Controller had been faithfully complied with and the arrears were deposited within "reasonable time". Rent Controller accepted the contention of the respondent and dismissed the application vide order dated 24-3-1986. This brings the appellant before this Court. Short point arising in this appeal is whether the direction of the Rent Controller as to deposit of arrears has been complied with and that the arrears admittedly deposited on 14-7-1985, can be deemed to have been deposited in time to save the respondent from the consequences of his default.

Facts are not in dispute. On 13-11-1969, Rent Controller directed the respondent to deposit the arrears (Rs.11,266) before 12-1-1970. Appeal preferred against the direction was dismissed by learned Additional District Judge on 9-2-1971. It is nobody's case that the appeal Court had suspended the operation of the impugned direction. However, the appeal Court, while, dismissing the appeal on 9-2-1971, gave one month to the respondent to deposit the arrears and directed the parties to appear before the Rent Controller on 23-2-1971. When the matter came up in constitutional jurisdiction in writ petition 289/1971, this Court on a miscellaneous petition moved by the respondent (C.M. No. 3/1971) suspended the operation of the order on 11-3-1971. One month given to the respondent by appeal Court expired on 9-3-1971. After dismissal of the writ petition, respondent had 29 days to his credit to avail of the facility given to him by the appeal Court and deposit the arrears. Last date fell on 13-6-1985 whereas the deposit admittedly was made on 14-7-1985, much after the afore-noted last date. It is not the case of the respondent that he was not aware of the order passed by this Court in writ petition 289/71. It is also not his case that he suffered from some misconception as to the time for the deposit of arrears. It' is also not his case that this Court extended the time for deposit of arrears. He, therefore, was obliged to deposit the rent arrears within time available to his credit after the dismissal of his writ petition viz. 13-6-1985 and had no justification legal or moral to postpone and delay the deposit till 14-7-1985. Default, therefore, was clearly established and was not condonable. Refer Holy Trinity Church Trust, A Lahore v. Ansari Brothers PLD 1963 (PW) Lah. 489, approved by Supreme Court of Pakistan in Messrs Ansari Brothers (Represented by 6 heirs) v. Holy Trinity Church Trust PLD 1971 Supreme Court 700; Syed Ghulam Shah Bukhari v. Muhammad Saeed Akhtar 1972 SCMR 428. S.J. Shah v. S.M. Aslam 1982 CLC 622 Muhammad Ashraf Khan v. Mst. Fahmida Khanum PLD 1982 SC 398, Fazal Khan etc. v. Rana Muhammad Ali PLD 1978 Lahore 1032. The contention that the default was condonable being not wilful is not easy to accept. Respondent has failed to bring any material on record either before the Rent Controller or before me to show the circumstances which prevented him from complying with the order of Rent Controller within the time allowed to him under the law. It was for him to prove some cause acceptable to the Court that he was unable to perform his duty and had failed to deposit the arrears because of some unavoidable circumstances.' This, he has failed to do. Appellant who succeeded to auction-purchase the property over twenty-four years ago was in litigation with respondent in various courts to get her title cleared and to regain possession of her property from the respondent. In this she has suffered enormously in various rounds of litigation initiated at the instance of the respondent. In the circumstances of the case when default was proved and the respondent had no justification to offer for the condonation of default, discretion cannot be exercised in his favour so as to obliterate the effects of his proved default. Respondent has suffered because of his own negligence and if somebody is to blame, he is to blame himself and no other. As to the maintainability of appeal, there is no dispute. Refer Mrs. Zubaida Begum v. Mrs. S.T. Naqvi 1986 5CMR 261. Litigation which started years ago must come to an end. It was in this background that I expressed my inability to exercise discretion in favour of the respondent. Impugned order of the Rent Controller proceed on consideration not much relevant to the point in issue and cannot be maintained. Accordingly, appeal is allowed, impugned order dated 24-3-1986 of, Rent Controller is set aside, defence is struck off and the respondent is directed to vacate and hand over the possession of the property to the appellant within four months from today. Nol order as to costs.

H.B.T./Z-18/L. Appeal allowed

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