1. DORAB PATEL, J.-The dispute in this petition relates to a portion of a. House in Karachi which was leased by the respondent to the petitioner many years ago. In the events that happened, the respondent sought to recover the arrears of rent due to her from the petitioner by Distress Warrant Proceedings which were filed in the Small Cause Court, Karachi in August, 1971. But these proceedings were unsuccessful because the petitioner disputed the respondent's title. Therefore, the respondent filed an eviction application against the petitioner for his eviction on the ground of non-payment of rent in the Court of the Rent Controller and IV Civil Judge, Karachi. Although, the petitioner has riot supplied a copy of the written statement filed by him in this eviction case against him, Mr. Usman Ghani admitted that the petitioner had challenged the respondent's title. Therefore, once again this question was reagitated before the Rent Controller who struck an issue about this question, but by his order dated 15-5-1972 the Rent Controller held that the respondent was the owner of the demised premises. The petitioner challenged this order in an appeal in the District Court, Karachi, which was later withdrawn by .Him. Accordingly, after the withdrawal of this appeal, the Rent Controller passed an order on 1-3-1973 for the deposit of tentative rent under subsection
(6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, (hereinafter called the said Ordinance). The petitioner was directed by this order to deposit arrears of rent amounting to Rs. 5,000 by 30-4-1973 and to deposit current rent in accordance with the provisions of subsection
(6) of section 13 of the said Ordinance. According to Mr. Usman Ghani, the petitioner only complied with the latter part of this order because he filed an appeal in the District Court, Karachi against the order directing him to deposit arrears of rent. This appeal is No. 97 of 1973. Further, together with this appeal, he filed an application for the stay of order directing him to deposit the arrears of rent and according to learned counsel, the District Court allowed this application and directed the petitioner to furnish a bank guarantee for the amount of Rs. 5,000 which had been assessed as the arrears of rent by the Rent Controller in his order dated 1-3-1973. However, although the District Court dismissed this appeal on 13-7-73, the petitioner did not deposit the arrears of rent because instead he filed a second appeal in the then High Court of Sind & Baluchistan against the Rent Controller's direction asking him to deposit the arrears of rent. But this appeal was, according to Mr. Usman Ghani, later withdrawn by the petitioner.
2. Meanwhile, on 3-5-1973 the respondent had filed an application under subsection 6 of section 13 of the said Ordinance for striking off the petitioner's defence as he had failed to comply with the Rent Controller's direction ordering him to deposit the arrears of rent aggregating Rs. 5,000. This application was contested by the petitioner but as he had admittedly failed to deposit the arrears of rent, by his order dated 28-2-1974 the Rent Controller, to whom the case had been meanwhile transferred, struck off the petitioner's defence and directed him to hand over vacant possession of the demised premises to the respondent.
3. This order was immediately challenged by the petitioner in another appeal in the District Court, Karachi, and although the petitioner has not filed a copy of this memorandum of appeal, it is clear from the order of the learned Additional District Judge who heard the appeal that the appeal was pressed inter alia on the ground that the respondent was not the owner of the demised premises.
4. Next, on the facts that the petitioner's plea appears to have been that he was not in breach of the Rent Controller's order of 1-3-1973 because of the bank gurantee furnished by him. As Mr. Usman Ghani did not press before us the petitioner's objection about the respondent's title, it is sufficient to state here that the learned Additional District Judge pointed out that the interim order passed by the .District Court for furnishing a bank guarantee in the appeal filed by the petitioner against the Rent Controller's order of t-3-1973 had lapsed with the dismissal of that appeal, therefore, by his order dated 2-5-1975, the learned Additional District Judge dismissed the appeal.
5. This order of 2-5-1975 was then challenged in a second appeal in the Sind & Baluchistan High Court and as a copy of the memorandum of this appeal has been filed, it is relevant to stress here that the appeal was pressed solely on the ground that the respondent had not proved her title to the demised premises. In the events that happened, this appeal came up for hearing before Ajmal Mian, J. On 23-12-1978 and it is clear from the order of the learned Judge that the appeal was pressed mainly on the ground that the respondent had not proved her title to the demised premises. However, the petitioner also contended that he had failed to comply with the direction in the order of 1-3-1973 for the deposit of the arrears of rent because he was "under a bona fide mistake that he was not required to deposit the arrears of rent in view of the bank guarantee furnished by him in Appeal No. 97/1973---.". This plea was repelled on the short ground that the petitioner should have deposited the arrears of rent after the dismissal of Appeal No. 97 of 1973 but as he had not he was in default of his obligation to deposit rent under the order of 1-3-1973.
6. Similarly, on the question of title Ajmal Mian, Judge rightly held that the petitioner could not be permitted to rely on this plea as an, explanation of his failure to comply with an order under subsection (6) of section 13 of the said Ordinance. Accordingly, the learned Judge dismissed the petitioner's appeal. Hence this petition for leave.
7. Mr. Usman Ghani confined his arguments to the question whether the petitioner's failure to deposit the arrears of rent amounted to a default within the meaning of subsection (6) of section 13 of the said Ordinance. And as the petitioner has made no attempt to deposit the arrears of rent after the dismissal of his First Appeal No. 97 of 1973. Learned counsel wisely limited his arguments to one point only. This was that the petitioner had furnished a Bank guarantee which had not expired on 28-2-1974 and as the bank guarantee was equivalent to the deposit of cash, the petitioner was not in default on 28-2-74 when the Rent Controller had struck off his defence.
8. We regret our inability to accept this submission. In the first place, there was some controversy between the learned counsel and Mr. Noori who' appeared on behalf of caveator about validity of this bank guarantee. Secondly, the order for furnishing a bank guarantee was an interim order which was passed to protect the petitioner's interest, pending the hearing of his appeal, therefore on the dismissal of his appeal on 13-7-1973 the interim order passed by the learned Additional District Judge automatically came to an end with the result that the Rent Controller's direction for the deposit of rent stood restored. In these circumstances, the petitioner should have deposited the arrears of rent forthwith but learned counsel relied on the fact that the petitioner had filed a second appeal in the High Court. The fact that the petitioner had filed a second appeal in the High Court, does not improve his case at all because he had failed to obtain a stay order from the High Court. Therefore, his failure to deposit the arrears of rent amounted to wilful default of the Rent Controller's order of 1-3-1973 which was valid and held the field. Accordingly, no exception can be taken to the view of the learned Judge.
9. The petition is without merit and is dismissed but we grant the peti--tioner 4 months, time to hand over vacant possession of the demised premises to the respondent provided he continues to deposit the monthly rent.