' ZIA PERWEZ, J.---This appeal by leave of this Court is directed against the impugned judgment dated 3-10-2007 of the learned Single Judge in Chambers, Lahore High Court, Lahore passed in F.A.O. No,384 of 2006.
2. The appellant claims to be the tenant of the respondent with respect to Commercial Property No,L-5; Ph-1, DHA, Lahore, hereinafter referred to as "the premises" in pursuance of an agreement dated 7-7-1999 further extended from time to time by subsequent agreements. The last agreement was executed between the parties on 6-7-2004 and the name of appellant was substituted for Messrs Vanguard Books (Pvt.) Ltd. At the monthly rent of Rs,55,000. On 30-10-2004, respondent moved an Application No,ARC/W/1016/2004 before the learned Additional Rent Controller, Walton Cantt., Lahore seeking ejectment of the appellant on the ground of bona fide personal requirement of the landlord. The appellant in his written reply refuted the ground of personal requirement. On 29-3-2006, the learned Additional Rent Controller passed the order in pursuance of provisions of section 17(8) of the Cantonments Rent Restriction Act, 1963, hereinafter called to as "Act, 1963", directing the appellant to deposit monthly rent @ Rs,55,000 with effect from March, 2006 in advance before the fifth day of each month. In compliance of the rent order, appellant deposited Rs,52, 250 per month after deduction of Rs,2750 as advance income tax. The ejectment application and two applications under section 17(9) of the Act, 1963 for striking off the defence on failure to comply with the rent order were allowed by the learned Rent Controller vide order dated 11-11-2006 ordered for ejectment of the appellant. Appeal preferred by the appellant was dismissed by the impugned judgment of the Lahore High Court, Lahore dated 30-10-2007 followed by the appeal before this Court.
3. Leave to appeal was granted on 31-3-2008 to consider the question, inter alia, whether the appellant being a tenant was entitled to deduct advance income tax @ 5% on the gross amount of rent fixed by the Rent Controller consistent with the past practice and in view of provisions of section 155 of the Income Tax Ordinance, 2001, hereinafter called as "the Ordinance, 2001" and clause (g) of section 108 of the Transfer of Property Act, 1882 and whether the defence of the appellant was liable to be struck off.
4. Mr. Ahmad Rauf, learned Advocate Supreme Court for the appellant has advanced elaborate arguments to show that there existed a regular past practice to deduct the amount in pursuance of the provisions of section 155 of the Ordinance, 2001. Failure to deduct the tax from the amount of rent paid would have exposed the appellant to penal liability. The appellant also placed on record additional documents and payment receipts showing the amount of rent deposited in pursuance of the order of the Rent Controller at Rs,55,000 out of which after deducting 5% advance income tax amounting to Rs,2,750, the balance was deposited in the Court within time without any default. That the successive agreements entered into between the parties were in continuation of the earlier agreements, mere change of name of tenant to Naj am Aziz Sethi from Messrs Vanguard Books (Pvt.) Ltd. Would not change the nature of contract for carrying on the same business in the demised premises in view of clear terms and the purpose of occupancy by "Messrs Vanguard Books (Pvt.) Ltd." as spelt out in the rent agreement, therefore, the deduction of income tax being obligatory in nature, did not constitute a wilful default. The learned counsel further proceeded to argue that the initially ejectment was not sought on the ground of default in payment of rent but on the ground of bona fide personal use of the landlord. The ejectment application should have been adjudicated on its own merits. The ejectment order based on a mere technicality is, therefore, liable to be set aside. He further argued that the ejectment application moved before expiry of the agreed term under the agreement was not maintainable with respect to the premises used as per selling of books as provided under section 17(4)(b)(iii) of the said Act. In support of his contentions, he placed reliance on the cases of Major Ferozdin Khan and others v. Sh. Muhammad Amin PLD 1967 Lah. 966, Mehraban Ali v. Haji Muhammad Qasim PLD 1976 Lah. 1052, Abdul Rehman v. Haji Mir Ahmed Khan and another PLD 1982 Kar. 532, Muhammad Siddique v. Abdul Rasheed 1982 CLC 217, Mehboob Jewelers and others v. Nur Ahmed 1989 SCMR 1327, Noor Muhammad and another v.
Mehdi PLD 1991 SC 711, L. Hussain v. Muhammad Nawab and 4 others PLD 1992 Kar. 307, Ashiq Ali and another v. Mehr Ilahi and 13 others 2001 SCMR 130 and Niaz Muhammad and another v. Waris Hussain and 2 others 2004 YLR 1266,
5. Mr. Muhammad Yaseen Chughtai, learned Advocate Supreme Court for the respondent, while refuting the above contentions, placed reliance on the order of the Rent Controller dated 11-11-2005.
He contended that after the clear direction of the Rent Controller for deposit of the rent at Rs,55,000 per month, the appellant was required to comply the rent order. Deduction of the amount of Rs,2750 towards 5% advance income tax constituted the violation of the order of the Rent Controller, therefore, ejectment of the appellant was rightly ordered by the Rent Controller and upheld in appeal by the learned Single Judge in the High Court. The learned counsel further contended that the parties to the latest agreement dated 6-7-2004 are different. Earlier agreements were entered into with Messrs Vanguard Books, a private limited Company, whereas the present agreement was executed with the appellant as tenant, therefore, the provisions of section 155 of the Ordinance, 2001 are not attracted to the present case. In support of his contentions, he placed reliance on the cases of Sh. Hafizullah v. Capt. Muhammad Mansib Ali Ch. And 2 others 1971 SCMR 132, Muhammad Yousaf v. Muhammad Bashir and others 1990 SCMR 557, Muhammad Ibrahim v. Rab Nawaz 1997 MLD 24, Zakir Muhammad v. Mrs. Arifa Sabir and another 2000 SCMR 1328, Khadim Hussain v. Nasir Ahmad 2003 SCMR 1580, Safeer Travels (Pvt.) Ltd. v.
Muhammad Khan Shafi PLD 2007 SC 504, Muhammad Saeed v. Muhammad Asghar 2008 MLD 236, Muhammad Bisharat v. Mrs. Uzma Bhatti PLD 2008 Lah. 414, and Muhammad Nadeem Anwar and another v. National Accountability Bureau and others PLD 2008 SC 645.
6. We have heard the learned counsel for the parties and have perused the record.
7. The agreement dated 6-7-2004, while showing the appellant as tenant clearly refers to the specific business of selling of books being carried out at the demised premises. It is admitted that the business is carried out by Messrs Vanguard Books which is a private Limited Company. The premises is not sub-letted. It was obtained on rent for business of Messrs Vanguard Books. The Limited Company, never parted with the possession of the premises and continue to carry on the same business in the demised premises. Under the circumstances, the liability for payment of rent by Messrs Vanguard Books, which is a distinct legal entity, is undisputed. As a consequence, it is a duty cast upon the tenant tendering rent to deduct advance tax at the @ 5% in pursuance of the provisions of section 155 of the Ordinance, 2001, which is attracted to payments made by the Company. Ejectment was sought on the ground of personal bona fide use of the landlord. No default in payment of rent was alleged to have been committed. The deposit receipts show the amount deposited in compliance of the order of the Rent Controller i,e, Rs,55,000 out of which a deduction towards income B tax of Rs,2,750 is clearly mentioned and balance deposited in Court within the prescribed period of each month. There is no allegation as to the non-deposit of amount deducted towards the income tax from the rent was not deposited by the tenant. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found as held in case of Quinn v. Leathem 1901 AC 495, 506 as held by this Court of Trustees of the Karachi Port of Karachi v. Muhammad Saleem 1994 SCMR 2213.
' Under the circumstances, the Rent Controller and the appellate authority, while exercising jurisdiction to examine the case are required to adjudicate the matter on its own merits when the alleged default was neither wilful nor deliberate as held in the case of Abdul Rehman (supra).
8. The Rent Controller is required to exercise his. Discretion according to the law as laid down in the case of Major Feroz Din Khan (supra) where the default is neither deliberate nor wilful and the tenant parted with entire amount. The Rent Controller is not expected to act in a mechanical manner but is also to take the fact into consideration that the tenant may not be burdened with any additional liability beyond the amount of agreed rent and the provisions of other enactments are to be taken into consideration to examine whether the failure to deposit of rent strictly in pursuance of the order of Rent Controller is wilful and deliberate calling for action as laid down in the case of Ashiq Ali (supra).
' We are of the view that the payment of monthly rent was the liability of the limited Company, the deposit of the same after deduction of income tax of the premises occupied by company carrying on its business only constitutes a technical default not calling for ejectment as held in the cases of Meharban Ali, Mehboob Jewelers, Noor Muhammad and L. Hussain (ibid).
' As to the contention that the premises used for the purpose of selling books and, therefore, attract the provisions of section 17(4)(b)(iii) of the Act, 1963. We are in respectful agreement with the earlier view of this Court as to the protection available which does not include a premises where only books are sold as held in the case of Sh. Hafiz Ullah (supra).
' Ejectment was ordered where the Court came to conclusion that the default in payment of rent by the tenant was deliberate and wilful as held in the cases of Muhammad Yousaf, Zikar Muhammad, Khadim Hussain and Muhammad Bisharat (supra). However the cited cases do not pertain to deduction of advance income tax as per section 155 of the Ordinance, 2001 and are distinguishable.
9. In the light of above discussion, we are of the opinion that the Courts failed to exercise discretion vested to them. Before parting, we may observe that the order of the Rent Controller is required to be specific. Quantum of amount of increase in rent, ought to have been mentioned for deposit of increased amount of the rent, which is also not reflected in the order of the learned Cantonment Rent Controller.
10. Accordingly, by allowing this appeal, we set aside the impugned orders of both the Courts below and remand the case to the learned Cantonment Rent Controller for disposal of the same on merits.