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Petitioner: ABDUL REHMAN VS Respondent: Haji MIR AHMAD KHAN
Court Name: Supreme Court of Pakistan Judge(s): Ali Hussain Qazilbash, Ajmal Mian Title: ABDUL REHMAN vs Haji MIR AHMAD KHAN Case No.: Civil Appeal No, 328-K of 1990Appeal No,62 of 1986 Date of Judgment:1991-04-28 Reported As: PLD 1991 Supreme Court 844 Result: Appeal allowed
JUDGMENT
JUDGMENT AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 1-12- 1988 passed by a learned Single Judge of the High Court of Sindh in ERA. No,62 of 1986, filed by the respondent/landlord against the dismissal of his application under section 16(2) of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, by the learned 1st Senior Civil Judge and Rent Controller, Hyderabad, by his order dated 4-1-1986 in Rent Application No,522 of 1979, allowing the same and striking off the defence of the appellant/tenant. Leave to appeal was granted to consider the question, whether the act of depositing of rent which was to be performed by the appellant having fallen within the notified vacations, his conduct of making the deposit on the re-opening of the Court would be deemed to be the performance of the original act on time with reference to section 9 of the West Pakistan General Clauses Act, 1956, hereinafter referred to as the Act. 2.The facts to be noted are that the respondent filed aforesaid rent application for ejectment on the ground of default. Upon respondent's application under Section 16(1) of the Ordinance, the learned Rent Controller passed a tentative rent order on 3-3-1983. The operative portion of the aforesaid order reads as follows:- "After giving the due consideration to the contentions of both the parties and after perusing the record carefully, 1, in the interest of justice, pass this order tentatively and direct the opponent to deposit Rs,1,30,500 in Court being the arrears of rent from May, 1979, to December, 1982, at rate of Rs,3,750 per month (Total amount comes to Rs,1,65,000 less Rs,34,500 already deposited by opponent in Court Rs,1,30,500 only) on or before 30th May, 1983. The opponent is further directed to deposit future monthly rent commencing from the month of January, 1983, at the same rate of
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Rs,3,750 in Court on or before 10th of each succeeding month i,e, rent of January 1983 should be deposited on or before 10th February, 1983, and so on." 3.It appears that pursuant to the above order, the appellant deposited the arrears of rent as well as monthly rent till the deposit of rent for the month of May, 1985, which was deposited on 1-7-1985 and not on or before 10-6-1985. Thereupon, the respondent filed an application under Section 16(2) of the Ordinance in or about August, 1985, on the ground of default of the above tentative rent order for the month of May, 1985. To the above application, the appellant filed a counter-affidavit on which in paras 3 to 5, the following averments were made:- "(3) That I deposited the rent for the month of May, 1985, on 1st July, 1985, the very first opening day after summer vacations of the Civil Courts under the bona fide impression in good faith that the Civil Courts are closed and the rent is not accepted in the month of June due to vacations holidays. (4) That there is thus no wilful default in depositing rent for the month of May, 1985. (5) That I have deposited very large amount in Court and have been regularly depositing monthly rent in the past as is evident on record." 4.It may be pointed out that no rejoinder to the above counter-affidavit was filed by the respondent. Be that as it may, the learned Rent Controller, after hearing the parties, dismissed the respondent's above application for the following reasons recorded in the order:- I have perused the objections of the Advocate for the opponent and report of the Nazir. The rent for month of May, 1985, was to deposited on or before the 10th of June but since in the month of June there was vacation and the rent was not acceptable and it was 1st July 1985 was the opening day. The report of Nazir clearly shows that rent for the month of May, 1985, has been deposited in Court on 1-7-1985, therefore, there is no default in the rent for the month of May, 1985. I therefore, dismiss the application with no order as to costs." Against the above order, the respondent filed aforesaid F.R.A. In the High Court, which was allowed by the learned Judge in chambers by placing reliance on the judgment of this Court in the case of Ahmad Azpez Zia v. Messrs Bisvil Spinners Ltd. And others 1987 SCMR 542 and the appellant's defence was ordered to be struck off for non-compliance with the tenative rent order. The appellant thereafter filed a petition for leave to appeal, which was granted to consider the above question. 5.In support of the above appeal, Mr.K.A.Ghani learned A.O.R. Appearing for the appellant, has vehemently urged as follows:- (i) that since during the month of June, 1985, Hyderabad District Court was closed for long summer vacations upto 30-6-1985, the appellant was justified in depositing the rent for the month of May, 1985, on 1-7-1985 on the first day of re-opening of the Court and, therefore, the learned Rent Controller was justified in declining the respondent's above application under Section 16(2) of the Ordinance and the High Court was not justified in reversing the above order of the Rent Controller; (ii) that, in any case, the appellant had been depositing rent regularly in compliance of the above tentative rent order and that if there was any alleged default for the month of May, 1985, the same was on account of the belief on the part of the appellant that the rent could be deposited on the re-opening of the Court on 1-7-1985; (iii) that since the learned Rent Controller had exercised discretion in favour of the appellant by declining respondent's above application under section 16(2) of the Ordinance, the High Court should not have interfered with the above discretion. On the other hand, Mr. S. Zaki Muhammad, learned Advocate Supreme Court appearing for the respondent, has made the following submissions:- (i) that section 9 of the Act cannot be pressed into service as it does not cover long vacations but refers to "a certain day" on which the Court or office is closed;
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(ii) that the Nazir's report indicates that the appellant had deposited rent on three occasions in the month of June, 1983 and 1984 namely, on 8-6-1983, 11-6-1983 and 10-6-1984 and the appellant's above plea that he was under the belief that he could deposit the rent on re-opening of the Court, is belied; (iii) that since there was admittedly default of the tentative rent order, the Rent Controller was obliged to order the striking off defence which he failed to do so and, hence, the High Court was justified in rectifying the above illegality. 6.Mr. K.A. Ghani, in furtherance of his above submissions, has referred to section 9 of the Act and the following cases. It may be pertinent to reproduce section 9 of the Act, which reads as follows:- "9.Computation of time. Where, by any West Pakistan Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Limitation Act, 1908, applies." A perusal of the above section indicates that it provides that where by any West Pakistan Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period and if the Court or office is closed on such day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken within the due time if it is done or taken on the next day afterwards on which the Court or office is open. It may further be noticed that the proviso to the above section excludes the application of the section to any act or proceeding to which the Limitation Act, 1908, applies. 7.We may now revert to the cases relied upon by Mr.K.A.Ghani, learned counsel for the appellant:-- (i) Akbar Ali v. Bagh Din and others (1985 SCMR 1198); in which the facts were that, while decreeing a pre-emption suit, inter alia it was ordered that the plaintiff shall deposit the balance of sale price of Rs,83,200 upto 5-2-1977, failing which the suit shall stand dismissed. It appears that 5-21977 was declared as a holiday, whereas 6-2-1977 was a closed holiday, being Sunday, and on 7-2-1977 the learned Civil Judge was on leave. The plaintiff made an application on 8-2-1977 seeking extension of time for making the deposit, which was refused on the ground that the Court had become finictus officio. The appeal filed against the above order in the High Court, also failed. A petition for leave to appeal was filed in this Court, which was declined but following observations were made with reference to section 9 of the General Clauses Act:-- The learned counsel for the petitioner invoked before us section 9 of the General Clauses Act read with Order XX, rule 14 of the C.P.C. For claiming a right of depositing the amount on 8-2-1977. Besides, it is contended that he had a good ground for being excused in the matter. The fact that the petitioner had applied for extension of time when the Court had become functus officio is not in dispute. It had become functus officio in view of this Court's decision in Shah Wali v. Ghulani Din alias Gaman and another PLD 1966 SC 983. The benefit of section 9 of the General Clauses Act could be claimed by a prayer not for extending the time for deposit but for depositing the amount or had deposited the amount on 7-2-1977. In the circumstances of the case, we consider that it is not a fit case for grant of leave to appeal. The petition is, therefore, dismissed." (ii) Messrs Bisvil Spinners Ltd. And 2 others v. Ahmad Aziz Zia and another 1985 CLC 1207; In the above case, the facts were that the landlord filed ejectment case against the petitioners in which a tentative rent order under section 13(6) of the late West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, was passed, of which default was committed inasmuch as the rent for the month of July, 1980, instead of depositing before 15-8-
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1980, was deposited on 19-8-1980. Thereupon, the landlord filed an application under section 13(6) of the late Ordinance. The learned Rent Controller by a common order disposed of the case on merits as well as the landlord's application under section 13(6) of the late Ordinance and dismissed both. Thereupon, the landlord filed an appeal which was allowed by the learned Additional District Judge on the ground of noncompliance of the tentative rent order. The above order of the Additional District Judge was assailed through a constitution petition which was allowed by a learned Single Judge of the Lahore High Court by placing reliance on section 9 of the Act. The relevant portion of the judgment reads as follows:- The principle contained in section 9 quoted above, lends support to the argument raised by the learned counsel for the petitioner. Admittedly Courts were closed and if a Civil Judge to deal with specified urgent matter was available in vacation that does not mean that the office of Rent Controller was not closed. The tenant, therefore, could legitimately rely on the concession granted to him on the rule of law enacted in section 9 of the General Clauses Act, 1957. The rent was being deposited under the direction of the Rent Controller. It is stated on behalf of the landlord that the tenant had been depositing due rent without obtaining the orders from the Rent Controller seeking his permission for the said deposit. General practice is to the contrary. Whenever a deposit is made under an order of a Court, permission is sought and then the amount is deposited. The fact that previously the tenant deposited the rent for the month of July in time in the month of August without obtaining the orders of the Rent Controller cannot he used as an argument to deprive him of a right under section 9 of the General Clauses Act. As observed in the case of Muhammad Shabbir, if the deposit had been made on 2-9-1974, argument raised would have been acceptable. 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 would have been found if the tenant had deposited the rent on the day of reopening of the Civil Court. He cannot, therefore, be penalized if he deposited the rent on 19th of August, 1980. Speaking with immense respect for the views expressed in Fahim Ansari v. Kalim Qamar Shaikh PLD 1981 Kar. 231 I prefer to rely on the rule laid down in case Muhammad Shabbir v. Haji Ghulam Sabir 1987 CLC 1189 which has received the approval of Supreme Court of Pakistan." (iii) Muhammad Shabbir v. Haji Ghulam Sabir 1987 CLC 1189; in which the facts were that the appellant/tenant's defence was struck off on the ground of non- compliance of the tentative rent order. His appeal before the learned Additional District Judge also failed and so also his second appeal before the High Court. However, Mr. KA. Ghani has relied upon the following observations, which have some bearing on the question in issue:- "5.There is no dispute that the appellants were required to deposit the rent for the month of July, 1974, before 15th August, 1974, in accordance with the order passed by the Rent Controller. In the reply submitted by the appellants to the respondent's applications for striking off their defence, it was stated by them that they could not deposit the rent in the month of August as the Civil Courts were closed and that they had deposited the rent for the month of July immediately on reopening of the Courts after summer vacation. The appellants further stated that they had not committed wilful default in depositing the rent for the month of July in the month of September. The appellants' plea that they could not deposit the rent for the month of July in August, 1974, as the civil Courts were closed on account of summer vacation, would have been acceptable if the appellants had deposited the rent immediately on reopening of the Courts. The appellants, however, deposited the rent after 10 days of the reopening of the Courts i,e, on 11-9-1974, as is evident from the photostat copies of treasury challans placed on the file by the respondent. There is no explanation why the rent was not deposited on 2-9-1974. Immediately on reopening of the Civil Courts after summer vacation. Under these circumstances, appellants' failure to deposit rent in compliance with the orders of the learned Rent Controller was obviously wilful, and the learned Rent Controller was
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justified in striking off their defence. The learned Rent Controller had no option in the matter as has been held in Ghulam Muhammad Khan Lundkhor v. Sardar Ali PLD 1967 SC 530, Messrs Ansari Brothers v. Holy Trinity Church Trust PLD 1971 SC 700 and Syed Ghulam Shah Bokhari v. Muhammad Saeed Akhtar 1972 SCM R 428." (iv) Krishna Dhan v. Ummatul Zohra Begum AIR (36) 1949 Allahabad 209; In the above case, the appellants were to deposit the security money within the period of six weeks from the date of the grant of certificate for filing appeal in the Privy Council under Order 45, Rule 7, C.P.C. The six weeks within which security could be deposited expired during the High Court vacations. The question before a Division Bench of the Allahabad High Court was, whether deposit of the security amount on the reopening day of the Court was within time. It was urged before the learned Judges of the Division Bench that since the High Court office was open, section 10 of the General Clauses Act, 1897 (which corresponds to section 9 of the Act) could not have been pressed into service. However, the above submission did not find favour with the learned Judges who, while rejecting the above contention, observed as follows:- "The six weeks within which security could be deposited expired during the High Court vacation. If the period expires on a closed holiday, it is not disputed that the time would be excluded in computing the period of six weeks. This is done under section 10, General Clauses Act (X of 1897), which provides that whereunder any Central Act any act or proceeding is directed or allowed to be done or taken in any Court or Office on a certain day or within a prescribed period, then, if the Court or Office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open. The argument against excluding the period of the High Court vacation is that during this period, or at any rate, a part of it, the High Court Office is open and it has in the past been receiving the security money and other deposits. The fact that to prevent delay the High Court Office receives deposits during the vacation cannot help in the determination of the question. Learned counsel for the respondent has urged that in section 10, General Clauses Act, the words "Court" or 'Office" have both been used and, if the money can be deposited in the High Court Office during the High Court vacation when the office is open, section 10, General Clauses Act, will not apply. The security money which has to be deposited under 0. 45, R.7, Civil P.C. Is to be deposited in the Court. The fact that the Court for its own convenience deputes certain officers to receive the money does not give them a separate existence and it cannot be urged that while the Court is closed the office is open. There may be days when the learned Judges are not sitting and yet the Court may not be closed, but if the Court is closed then it cannot be said that the Ministerial office attached to the Court are an office within the meaning of the term in section 10, General Clauses Act and they have a separate existence from the Court. (2) We are, therefore, of the opinion that the money having been deposited on the day the Court re-opened after the High Court vacation and the time for depositing having expired during the vacation the deposit was made within time. The money may be accepted. The office may proceed." (v) Rakhadoo Issoo Kohari v. Narayan and others AIR 1959 Madhya Pradesh 352; In the above case, the plaintiff filed a suit for redemption of a mortgage. A consent decree was eventually passed whereby defendant undertook to place the plaintiff in possession of the land upon his making payment of Rs,1,450 to the defendant on or before 31-5-1954, failing which the plaintiff's suit was to stand dismissed. The Civil Courts were closed on 31-5-1954 on account of summer vacation and were re-opened on 14-6-1954. The plaintiff brought the amount of Rs,1,450 on 14-6-1954 for depositing it in Court. Thereupon, the Presiding Officer sent a memo to the Nazir to receive the amount. However, the Nazir directed the plaintiff to bring the amount on the next day as it was tendered after the treasury hours. The amount was then deposited in the Court on 15-6-1954.
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The defendant raised an objection before the trial Court for the non-compliance of the terms of the decree, which objection was overruled. However, upon appeal, it was sustained by the learned Appellate Court. Thereupon, a second appeal was filed which was allowed by a learned Single Judge of the Madhya Pradesh High Court and it was held that the above tender on the first day of re-opening of the Court was a good tender in view of section 10 of the General Clauses Act. The relevant portion of the judgment reads as follows:- (6) The amount was actually tendered in Court by the appellant on 14-6-1954 when it reopened after the summer vacation. It was not through his fault that it was not accepted on that date. As he had brought the money within the Court hours, the tender was valid: see Mahbub Ali v. Bishen Singh AIR 1944 Lah. 470. Under section 10 of the General Clauses Act (Central), which is applicable to the case, the payment could be made on 14-6-1954 which was the first working day of the Court after the summer vacation. In this view, the appellant must be deemed to have satisfied his part of the decree and was properly placed in possession of the mortgage fields." (vi) ) Akhtar Bibi and others v. Rajlakshmi Debi and others 1959 CWN 684; in which the facts were that one Manjur Ahmed on 24-8-1953 obtained a Rule from the Calcutta High Court calling upon the opposite parties to show-cause why an order passed in a reference under section 18 of the Land Acquisition Act should not be set aside or such other order or orders passed as the Court may deem fit and proper. It appears that Manjur Ahmed died on 7-7-1954 leaving behind 11 persons as legal heirs, 10 of them filed application for bringing them on record in place of the deceased. The opposite side raised an objection on the ground of limitation and attempted to distinguish between closing of the Court and closing of office of the Court, but a Division Bench of the Calcutta High Court, on the basis of section 4 of the Limitation Act, held that since the Court was closed upto 21-11-1954, the said application could have been filed by 22-11-1954 which was in fact filed on that date and, therefore, was within time. It may be advantageous to reproduce the reasonings recorded by the learned Judges of the Division Bench, which read as follows:-- "This brings us to the main objection raised on behalf of the opposite party, namely, that the application is barred by limitation. Manjur Ahmed's death having taken place admittedly on the 7th of July, 1954, 90 days expired on the 5th of October, 1954. The application would, therefore, ordinarily be barred by limitation unless it was presented on or before the 5th of October. The only way in which the application can save this position is by application of section 4 of the Limitation Act which is in these words: Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.' As I have indicated earlier, the Court was closed on the 5th of October, and continued to remain closed up to the 21st of November, and reopened on the 22nd of November so that, on the face of it, the position appears to be that limitation was saved. It is, however, contended on behalf of the opposite party that the word Court in "The Court is closed" and "the Court re-opens" should be given the limitated meaning of "Court's office". So, it is argued that while the period of limitation in this case expired on the 5th of October, when the office was also closed, this application may, under section 4 of the Limitation Act, have been presented on the 29th of October, when the office re-opened and limitation cannot be escaped by making it on the date the Court as a whole re- opened, namely, the 22nd of November. Our attention has been drawn to a notification which was published in these words: "It is hereby notified that the High Court Appellate side, will be closed for the Long Vacation from Friday, the 10th September, to Saturday, the 20th November, 1954, both days inclusive----The office
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of the Appellate side will be closed from Sunday, the 26th September, to Thursday, the 28th October, 1954, both days inclusive." I must assume for the purpose of this case that this notification was issued under the authority of this Court and represents the correct state of facts as regards the period for which the High Court as a whole was closed and the period during which the office on the Appellate side remained closed. I am unable, however, to see anything in this notification to justify the conclusion that the Court was not closed within the meaning of section 4 of the Limitation Act during the period when the office was open. The offices of the Court are not the same thing as the Court. The Legislature in its wisdom used the words "the Court is closed". We shall be legislating instead of interpreting the statute if for the words "the Court is closed", we read the words "the office of the Court is closed"." (vii) Visumal Chatumal Khilnani v. Ali Bak hsh and others PLD 1968 Karachi 521; In the above case, the facts were that pursuant to a tentative rent order passed under section 13(6) of the late West Pakistan Urban Rent Restriction Ordinance, 1959, the rent for the months of May and June, 1964, was deposited on 4-7-1964. The…
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