MAULVI ANWARUL HAQ, J.---For purposes of this order reference to the pleaded facts would not be necessary. I Suffice it to say that on 9-4-20051 respondent filed an application for ejectment of the appellant from a shop located in Faisalabad urban area. The ejectment was sought on the ground of default as explained in the application, impairment of the value and utility of the building and bona fide personal requirement was also pressed. The reply was filed denying the said allegation.
On 17-1-2006 the learned Rent Controller heard the parties and passed an order in terms of section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959. He tentatively fixed the monthly rent at Rs,1,09,376 and directed that the future rent is to be paid before 15th day of every succeeding month. Thereafter he worked out the arrears as Rs,23438 per month representing difference between the said tentative rate of rent and amount being actually paid by the appellant as rent and directed that the arrears at the said rate per month be deposited with effect from institution of the application till the date of the order. The case was adjourned to 2-2-2006 for evidence of the respondent. On this date the learned Rent Controller noted that receipt for arrears has not been presented. He then proceeded to direct the appellant to deposit the amount in accordance with order dated 17-1-2006 up to 16-2-2006. However, it appears that in the meanwhile the learned District Judge transferred the case to another learned Rent Controller. On this date the application for deposit of rent filed by the appellant was taken up. Somehow or the other the application was contested by the respondent. The learned Rent Controller allowed the said application filed by the appellant and kept the case pending. It was called again and it was reported that due amount has been deposited with Civil Nazar as Bank time was over. The Civil Nazar was directed to deposit the amount in treasury in the concerned account. On 4-5-2006 the respondent filed an application for striking off the defence of the appellant. The precise ground was that since the said amount of arrears was deposited in the Bank on 17-2-2006, the non-compliance of the order under section 13(6) of the said Ordinance has occurred. The application was replied by the appellant. It was dismissed by the learned Rent Controller on 5-4-2006. Against this order the respondent filed an appeal, which was heard by a learned Additional District Judge, Faisalabad, who allowed the same on 24-1-2007. He proceed to strike off the defence of the appellant and to pass an ejectment order.
2. Mr. Shahid Karim, learned counsel for the appellant contends that the order passed on 17-1-2006 was violative of section 13(6) of the said Ordinance, 1959 inasmuch as a date for deposit of the arrears, which were not even calculated, was not fixed. It was only on 2-2-2006 that the date was fixed and a direction was issued. The appellant approached the Court well in time on 16-2-2006 to deposit the amount but the application was contested and ultimately was allowed. The amount was deposited with Nazir who was directed by the Court to deposit the amount in the Bank on the following day. According to him there is no default and certainly not wilful default. Mr. M. Shahzad Shaukat, learned counsel for the respondent, on the other hand, while conceding that order dated 17-1-2006 is not in accord with the provisions of section 13(5) of the Ordinance contends that the defect was removed on 2-2-2006 and direction was issued to deposit the arrear up to 16-2-2006.
According to the learned counsel the appellant ought to have been on its guard to have deposited the amount well in time and amount having been paid into the Bank on 17-2-2006 i.e, after the said date would not save the appellant from the consequence of the non-compliance of order. He relies on the case of Muhammad Jan v. Khadim Hussain (1973 SCM R 243).
3. I have gone through the record of the learned Rent Controller with the assistance of the learned counsel for the parties. The detail of the proceedings that took place before the learned Rent Controller have already been stated above. The order passed by the learned Rent Controller on 17- 1-2006 does not disclose determination of the amount of arrears and more particularly learned Rent Controller failed to fix the date for purpose of deposit of arrears. There is, thus, no question of any non-compliance of the said order, which is wholly violative of section 13(6) of the said Ordinance. The mistake was realized on 2-2-2006 and a direction was issued for deposit up to 16- 2-2006. However, the amount of arrears was still not worked out and calculation was left to the tenant. Be that as it may, it is matter of record that the appellant did go to the Court on 16-2-2006.
It appears that in between 2-2-2006 and 16-2-2006 the learned District Judge had passed an order transferring the case to another learned Rent Controller. The parties first appeared in the former Court and were informed and directed to appear in transferee Court on the same day.
The case was taken up in the transferee Court, of course, on the same day. The application for permission to deposit the amount was taken up by the transferee Court. It was contested by the appellant. The order reveals that the learned transferee Court perused the record after hearing the learned counsel for the parties. The arguments are noted in some detail in the order. Thereafter he recorded his decision and directed the appellant to make the deposit before the close of Court time and kept the case in waiting. It was called again when it was reported that the amount has been deposited with Civil Nazir as Bank time was over. Section 13 (6) of the said Ordinance, 1959 is silent as to where the amount is to be deposited and so is the case with the orders passed on 17-1- 2006 and 2-2-2006. Explanation to section 13(2) (i) of the said Ordinance provided that rent remitted by money order to the landlord or deposited in the office of the Collector having jurisdiction in the area where the building or rented land is situated shall be deemed to have been duly tendered. To my mind, law contemplates deposit of rent in the office of the Controller. This being so, deposit made with Nazir under the orders of learned Rent Controller before the close of Court hours constitutes sufficient' compliance of the order passed by the learned Rent Controller on 2-2-2006.
4. Coming to the said judgment in the case of Muhammad Jan the default was in the matter of deposit of future rent of two months stated in the judgment and it was held as a fact that the tenant had come to the Court late in the day, consequently by the time the Court allowed the application the Bank had closed. In the present case, I have noted above several circumstances reflecting on the face of record i. e. Information of transfer of the case being conveyed to the parties on the same day, appearance in the transfer Court, taking up the matter and hot contest and then the need to record a reasoned decision and ultimately deposit in the office of the Rent Controller which constitute distinctive features, so far as the facts of two cases are concerned.
Needless to state that the default contemplated with reference to section 13(6) is wilful default and there is nothing on record to enable this Court to hold that even if there is some default it is wilful. It is D further matter of record that rent up to March 2006 stood deposited in advance before passing of the said order.
5. Coming to the judgment of the learned Additional District Judge. It is fraught with misstatement of facts. The learned Additional District Judge has repeatedly stated that vide order dated 17-1- 2006, the appellant was directed to deposit arrears by 2-2-2006, which is wholly incorrect. Besides, going by the said judgment particularly para-12 thereof the learned Additional District Judge has held that no default has been committed and further that appeal is not maintainable. It is rather default to make a head or tail out of the said judgment.
6. For all that has been discussed above, S.A.O. Is allowed. The impugned order dated 24-1-2007 by the learned Additional District Judge, Faisalabad is set aside. The result would be that the ejectment petition filed by the respondent against the appellant shall be deemed to be pending.
The parties shall appear in the Court of learned Senior Civil Judge/Rent Controller, Faisalabad on 14-1-2009. The record of the learned Rent Controller along with copy of this judgment be immediately remitted to the learned Senior Civil Judge/Rent Controller, Faisalabad. He shall proceed to record evidence of the parties and to decide the case on merits preferably within three months. No order as to costs.