' CH. IJAZ AHMED, J.---The necessary facts out of which the present petition arises are that petitioner had taken premises in question (House No,22/4, Fazil Road, Saint John Park, Lahore Cantonment) from Mrs. Farida J. Malik vide lease dated 1-7-1993 for five years. The said lease agreement was extended for another period of five years till 30-6-2003. The extension was recorded on the back side of the lease agreement. The lease was subsequently extended till 1-4- 2006. It was further extended till 30-5-2008. Respondent sent a letter to the petitioner on 27-6-2006 for securing vacation of the house for personal need. Petitioner being aggrieved filed an application under the enabling provisions of law seeking permission to deposit monthly rent of the premises in question before the Additional Rent Controller, Lahore, which was accepted vide order dated 2-8-2006. The petitioner deposited rent in terms of the order dated 2-8-2006 before the Additional Rent Controller, Lahore Cantonment. Respondent filed an application on behalf of attorney of Mst. Ayesha Khanna under section 17 of the Cantonments Rent Restriction Act, 1963 in the Court of Additional Rent Controller, Lahore Cantonment on the ground of default and personal need. Petitioner filed written statement controverting allegations levelled in the application. During the pendency of the ejectment petition respondent filed an application for passing the order of ejectment forthwith without framing issues on the ground that during the course of initial hearing it transpired that admittedly the respondent started tendering the monthly rent in this honourable Tribunal in the name of deceased landlady without first tendering the same to the petitioner as required under the law. Direct deposit of rent before this Tribunal is not a procedural matter rather constitute default according to the provisions of section 17 subsection 2(i) read with Explanation.
Petitioner/ respondent filed reply of the application controverting the allegations levelled in the application. The Rent Controller accepted the application vide order dated 12-2-2008 in terms of the dictum laid by this Court in Mst. Yasmeen Khan's case (2006 SCM R 1501). Petitioner/respondent being aggrieved filed FAO No, 312/2008 in the Lahore High Court, Lahore, which was dismissed vide impugned judgment dated 2-12-2009. Hence the present petition.
2. The learned counsel for the petitioner submits that trial Court had erred in law to accept the application of the respondent without framing issues in spite of the fact that the petitioner/respondent controverted allegations levelled in the application as well as in the ejectment petition. The judgment relied by both the courts below is distinguished on facts and law as the point of law in the said case is that under section 10 of the Sindh Rented Premises Ordinance 1979, the rent has to be, as far as the possible, paid to the landlord and in case of refusal or avoidance to accept the rent if need be sent, firstly, through postal money order and thereafter by a deposit with the Rent Controller. While under the provisions of Rent Restriction Act, 1963 Explanation to section 17(2), the rent may be remitted through money order or in the case of refusal to accept, the same can be deposited in the office of Controller having the jurisdiction in the area, which is deemed to be a valid tender and being so, it was mandatory to allow the petitioner with an opportunity of evidence to prove the circumstances justifying deposit with Rent Controller, therefore, no outright eviction without opportunity of evidence was permissible. This course was not adopted by the courts below, therefore, the assumption of jurisdiction by both the courts below is not sustainable in the eyes of law.
3. The learned counsel for the respondent has supported the impugned judgment and stated that the learned High Court had taken note of agreements which are reproduced in para 3 of the impugned judgment and had come to the conclusion that the petitioner/respondent had malafidely filed application for deposit of rent before the Additional Rent Controller. He further urges that both the courts below having concurrently decided the case against petitioner and this Court does not interfere in the concurrent conclusion arrived at by the courts below while exercising jurisdiction under Article 185(31 of the Constitution.
4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce section 10 of Sindh Rented Premises Ordinance 1979 and section 17(1)(2)(i) of the Cantonments Rent Restriction Act 1963 and Explanation which is as follows:-- ' Sindh Rented Premises Ordinance 1979 "10. Payment of rent.---(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant be paid not later than the tenth of the month next following the month for which it is due.
(2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing.
(3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate.
(4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: ' Provided that nothing contained in this section shall apply in the case pending before the Controllers on the commencement of this Ordinance.
' Cantonment Rent Restriction Act 1963
17. Eviction of tenant. (1) After the commencement of this Act, no tenant, whether before or after termination of his tenancy, shall be evicted from the building in his possession or occupation in execution of a decree passed after such commencement, except in accordance with the provisions of this section.
(2) A Landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf and the Controller may, after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that:--
(1) the tenant has not paid or tendered the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is due; or ' Explanation.---For the purpose of clause (i) the rent remitted by money order to the landlord or, in case landlord refuses to accept the rent, deposited in the office of the Controller having jurisdiction in the area where the building is situate, shall be deemed to have been duly tendered.
' Mere reading the aforesaid provisions of law clearly shows that they are not exactly the same.
Therefore, both the courts below erred in law to rely upon the dictum laid down by this Court in Mst.
Yasmeen Khan's case (supra). It is also appropriate to reproduce para 3 of the said judgment and portion of para 5, which are as follows:-- Para 3 "We have heard the learned counsel for the parties and perused the record. The contention of the learned counsel for the appellant is that rent for the month of January, 1991 to April, 1991 was not paid by the respondents- tenants and in view of section 15 read with section 10 of the Sindh Rented Premises Ordinance, 1979, the rent for the month of January, 1991 became due on 10-4-1991 but the respondents deposited rent in the office of Rent Controller on 29-4-1991 without tendering the same to her by 10-4-1991 as such there was a deliberate and wilful default at least for the month of January, 1991. The learned counsel, however, has not pressed the ground of personal need."
Portion of para 5 "It may also be observed that the Rent Controller has misread the evidence on record and has not appreciated the law laid down by this Court in holding that the respondents did not commit any default in payment of rent for the period from January, 1991 to April, 1991 though it is an admitted position that rent was deposited on 29-4-1991. The learned Judge in chambers has not at all attended to the question of default in the impugned judgment. From the perusal and examination of record, it appears that there has been deliberate and wilful default in payment of rent for at least for the month of January, 1991 on the part of respondents which could not be termed to be technical default as such no case has been made out for exercise of discretion in their favour."
' It is better and appropriate to reproduce paras 1,3,4 of the ejectment petition and written statement which are reproduced herein along with para 2 of the application and reply of para 2 of the application which is to the following effect:-- Ejectment petition
1. That house No,22/ 4 Fazli Road St. Johns Park, Lahore Cantt. (hereinafter would be referred as "rented premises") was previously owned by Mrs. Farida J. Malik (late) who died in the year 1998.
During her lifetime Mrs. Farida J. Malik rented out the rented premises to the respondent vide lease agreement dated 7-7-1993 for a period of five years and the monthly rental was fixed as Rs, 18,000 per month (copy of lease agreement is annexed).
3. That after the sad demise of Mst. Farida J. Malik, the lease agreement was extended for another five years i,e, till 30-6-2003 with 20% increase in the monthly rental, which was entered into between the respondent and the petitioner who was one of the legal heir of Mrs. Farida J. Malik.
From thereon the respondent started paying monthly rent to the petitioner. Extension was recorded on the back of the lease agreement.
4. That the petitioner relinquished his share in the rented premises as a gift in favour of Mst. Ayesha Javed Malik and at present she is the sole owner of the rented premises (Copy of the letter dated 18-11-1999 issued by Military Estate Officer Lahore Circle along with the copy of G.L.R. Extract is annexed herewith).
Written statement reply
1. Para No,1 of the petition is admitted to the extent that the respondent got on lease the house in dispute from Mst. Farida J. Malik on 1-7-1993 for a period of five years and Mst. Farida J. Malik got the signature on the stamp paper with a promise with the respondent that the certified copy of the same shall be given to the respondent after registration with the registrar of assurances but the same was never handed over to the respondent and instead in the year 1996 before the expiry of the lease period asked for the vacation of the house for her own purposes, the rest of the para is denied for want of knowledge.
3. Denied the document is forged, manipulated and engineered by the present petitioner taking advantage of his official position.
4. Emphatically and categorically denied, the documents are forged, fabricated and engineered by the petitioner by using influence on the relevant department in order to misappropriate the advance rents received by the agents.
' Application for passing order of ejectment
2. That the petitioner in his ejectment petition sought eviction of the respondent on various grounds including default in payment of monthly rent. During the course of initial hearing, it transpired that admittedly, the respondent started tendering the monthly rent in this honourable tribunal in the name of deceased landlady without first tendering the same to the petitioner as required under the law. Direct deposit of rent in this honourable tribunal is not a procedural matter rather constitute default according to the provisions of section 17 subsection 2(i) read with Explanation.
The dicta of superior court is clear on this point as in case reported as 2006 SCM R 1501, the honourable Supreme Court of Pakistan held that direct deposit of rent in Court without first tendering the same to landlord and then on his refusal to accept same or issue receipt, remitting the same through money order would be a wilful and deliberate default in payment of rent on the part of the tenant, which could not be termed to be technical default." (Reliance is also place on case reported as 2008 CLC 877).
' Reply of Application
2. Para 2 of the application as stated is not admitted hence denied. It is pertinent to mention here that the petitioner in order, not to become defaulter has been depositing the rent in the name of the deceased landlady and thereafter in the name of the heirs of the deceased. Since the respondent was not aware of the death of the landlady therefore he was left with no option but to deposit the rent in court in her name, as the petitioner had not intimated the respondent with regard to the death of deceased lady, and subsequent with the direction of Hon'ble Court in the name of the petitioners. The act of depositing the rent was not tainted with any mala fide on the part of the respondent, and it was strictly in accordance with the law. The provisions of law as quoted by the petitioner/applicant and the citations quoted therein are misconceived and those are not applicable in the case pending before this Hon'ble Court. The respondent in no case can be held as a defaulter as he has been tendering or depositing the rent in accordance with law and has upto date deposited the rent of the property in question.
' In case the aforesaid principle laid down by this court and the factual assertions of the parties mentioned herein above are put in juxtaposition then it is crystal clear that the petitioner had not committed any default and the petitioner was non-suited on the basis of dictum laid down by this Court in Yasmeen Khan's case (supra) which has no bearing qua the issue in question as highlighted hereinabove. Both the courts below had erred in law to accept the application without framing issue on the divergent pleadings of the parties. It is also settled principle of law that provisions of C.P.C. Are not applicable in the rent proceedings in stricto senso. However principles of C.P.C. Are applicable in the rent proceedings. It is also admitted fact that proceedings before the Rent Controller are summary in nature. The learned Rent Controller while accepting the application of the respondent/petitioner had made more shorter procedural method than the provisions prescribed under the Rent Restriction Act, 1963.. The cited judgment is basically interpreting Section 10 of the Sindh Rented Premises Ordinance, 1979 wherein subsection (2) of section 10 is reproduced hereinabove clearly indicates that the rent shall as far as C"May be" be paid to the landlord. There is no such provision in Cantonments Rent Restriction Act, 1963. Even otherwise in the said case default has been proved whereas in the present case default has yet to be proved by the respondent/landlord, therefore, impugned judgment is not sustainable in the eye of law. It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances as law D laid down by this Court in Board of Trustees' case 1994 SCM R 2123. In the case in hand respondent has withdrawn the rent deposited by the E petitioner which was deposited by him before the tribunal.
5. In view of what has been discussed above the petition is converted into appeal and appeal is allowed. The impugned judgment is set aside and the case is remanded to the Additional Rent Controller to decide the same afresh in accordance with law. Parties are directed to appear before the Additional Rent Controller within a period of one week after receipt of the judgment of this Court who shall decide the ejectment petition within a period of three months positively even at the cost of day today hearing. In case any of the party/counsel fails to cooperate with the Additional Rent Controller then the Rent Controller shall invoke penal provisions against the said party/counsel. The learned counsel of the parties and the parties are directed to cooperate with the Additional Rent Controller so that the matter may be finalized within the prescribed period.