1. ' SHAHID ANWAR BAJWA, J.--- Application under Section 15 of the Sindh Rented Premises Ordinance, 1979 was filed by the present respondent No,1 against Messrs Roots School Network through its administrative/owner Muhammad Yaminullah Pervez Malik. Ejectment was sought on grounds of personal need, default and impairment. Written statement was filed by the respondent and it was pleaded in the written statement that application was not maintainable and the property in question had been sold by the owner of the property to the opponent by way of sale-agreement and opponent had paid Rs,15,00,000 towards sale consideration. Since a copy of the agreement of sale was enclosed, that agreement of sale stated that it was an agreement by present petitioner, his brother and their father on one side and Mr. Muhammad Yaminullah Pervez Malik on the other side. In para-2 of the agreement' consideration was specified at Rs,82,00,000. It was stated that Rs,25,00,000 was paid at the time of agreement, another Rs,25,00,000. Would be paid in December, 1997 and balance Rs,32,00,000 shall be paid six months after receipt of the second payment and at the time of execution and registration of sale-deed. In para-15, it was stated that the vendee shall pay to the vendors a sum of Rs,15,000 per month, out of grace at the will of the vendor from January, 1998 onwards till last and final payment of Rs,32,00,000 is made. Affidavit-in-evidence was filed and cross-examination was conducted on 22-3-2001.
2. ' In the meanwhile Civil Suit No,695 of 2000 was filed by the said Muhammad Yaminullah Pervez Malik against the present petitioner and his brother and father. The suit was for Specific Performance. Subsequently names of brother and father of the present petitioner were deleted. A counter-Suit bearing No,108 of 2000 was filed by the present petitioner against Muhammad Yaminullah Pervez Malik for Declaration, Permanent Injunction, Cancellation of documents and Damages. Both these suits were decided by this Court vide order dated 09.03.2006. Suit filed by the present petitioner was dismissed and the suit filed by the present respondent No,1 was decreed except in respect of Damages, for which relief the suit was dismissed. High Court Appeals were filed and the same are still pending.
3. ' On 23-12-2001 a statement was filed by both the parties in the rent case and it was prayed that matter may be kept sine die till the Civil Suits are decided by the High Court. On this statement an order was passed by the Rent Controller that ejectment application is adjourned sine die. However tenant will continue to deposit rent with the Court and landlord would be entitled to withdraw it.
4. ' On 22-11-2000 an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 was filed. On this application on 7-2-2001 order was passed. It was held by the Rent Controller that there were no arrears. However Rept Controller directed the present petitioner to pay future rent on or before 10th day of each calendar -month. The tenant continued to deposit rent. However in respect of months of June and July, 2001, July, 2002 and October, 2003 the tenant did not deposit rent in the ejectment case, but deposited it in the Miscellaneous Rent Case. On application under section 16(2) learned Rent Controller observed as under: "It appears that there is default committed by the opponent for the months of June and July, 2001.
5. The opponent also committed default in payment of month of July, 2002. He has also committed default in payment of rent for the month of October, 2003.
6. ' Besides to the above, the opponent made payment in Misc. Rent Case No,386 of 2000, thereby he has committed violation of the tentative rent order without any appealable explanation. Though the direction was to make deposit in main rent case. It is crystal clear that the rent for the months of November, 2003 and January, 2004 to May, 2004 in terms of the order of Rent Controller. As such technical default has been committed by the opponent.
7. ' In support of version of the applicant, he has placed reliance upon: 2000 MLIA 133 Karachi, (2) 2001 SCM R 130, (3) 2000 M LD 82 Karachi.
8. ' In light of citations, it is also proved that tenant had not deposited rent in terms of order of the Rent Controller and there had been deliberate and wilful non-compliance of the tentative rent order, which invited penalty of striking off the defence of the tenant contemplated under section 16(2) of the Sindh Rented Premises Ordinance, 1979.
9. ' The plea/explanation took by the learned counsel that on the request of the applicant/landlord, representative of the opponent has made the deposit in M.R.0 has no weight, because there is controversy between the parties, and in the circumstances of the case, there is no such exception. I am of the humble view that such act and `omission on the part of the opponent/tenant would be wilful, deliberate and contumacious.
10. ' Upshot of the above discussion, applicant/landlord has proved his version taken in the application under consideration, therefore, same is allowed with no order as to costs. However, the opponent/tenant is directed to vacate the premises within 60 days and hand over its peaceful and vacant possession to the applicant:"
11. ' Being aggrieved by the order of Rent Controller an appeal was filed. That appeal was dismissed.
12. The relevant observations were as under:--- "It is admitted fact that appellant had deposited the rent for the month of October, 2003 in M.R.C.
13. And thereafter started depositing rent in M.R.C. From January, 2004 till May, 2004 instead of depositing rent in Rent Case as per direction of Rent Controller but no plausible explanation has been provided by the learned counsel for the appellant for depositing the same in M.R.C.
14. ' In view of above and from perusal of record/vouchers reveals that the opponent has deposited the total amount of Rs,10,32,000 and the rent for June and July, 2001 and July, 2002 as mentioned above was deposited in Rent Case and not in M.R.C. No,386/2000. However he deposited the rent for the month of October, 2003 in M.R.C.. No,386/2000, which shows that the appellant has deposited the total amount of Rs,10,32,000 and not Rs,9,36,000. It is admitted fact that the opponent made payment in M.R.C. For the month of October, 2003 and thereafter from January 2004 till July, 2004 instead of depositing rent in Rent Case as per direction of Rent Controllet, therefore, the tenant/opponent has committed default for the month of June and July, 2001, July, 2002 and October, 2003."
15. ' Being aggrieved by this order, this Constitution Petition has been filed.
16. ' Learned counsel for petitioner made the following submissions:
(1) That there was agreement of sale between parties and question relating to agreement of sale has not been decided by the Rent Controller or the Appellate Court.
(2) There was no default, because deposit had been made in the M.R.C. If at all there was a default, it was technical default. Learned Rent Controller has held it to be technical default. No one should be knocked out on technical grounds.
(3) That the High Court in its Judgment in the Civil Suit has held that Mr. Muhammad Yathinullah Pervez Malik is statutory tenant. No order has been passed by the Court below against said Muhammad Yaminullah Pervez Malik. Learned counsel relied upon Mst. Kulsum Bai v. Zari Bai 1987 CLC 1738, Jawaid Ashraf Khan v. Mst. Suriya Begum 1999 M LD 2886, Major (Rtd.) A.S.K. Samad v. Lt.- Col.(Rtd.) A. Hussain and another 1987 SCM R 1013, Dr. Aftab Ahmed Khan v. Mst. Zaibun Nisa, 1998 SCM R 2085 and Ashiq Ali and another v. Mehar Elahi and 13 others 2001 SCM R 130. The last case learned counsel for the petitioner sought to distinguish on the ground that there was specific directions in that case.
17. ' Learned Advocate for the respondent No,1 submitted that this is writ petition and question of fact cannot be looked into in writ jurisdiction. Learned counsel referred to Section 16 of Sindh Rented Premises Ordinance, 1979 and stated that words used are "shall be". He further submitted that this is not a question of technical default but the question is whether order is complied with or not.
18. Section 16 deals with question of compliance and not whether the default is wilful or not. After the order was passed by High Court in Civil Suits the rent is being deposited by Roots School Network and not by Mr. Muhammad Yaminullah Pervez Malik and in any case Roots School Network is not a legal person. He relied upon Ashiq Ali and another v. Mehar Elahi and 13 others, 2001 SCM R 130, Mst.
19. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45, Mst. Husna Bano alias Mst. Bibi Hussan Bano and others v. Faiz Muhammad through Legal Heirs and others 2002 SCM R 667, Saifullah v. Muhammad Bux and 2 others 2003 M LD 480, 2004 YLR 3278, Hafiz Shafatullah v. Mst.
20. Shamim Jahan and another PLD 2004 Kar. 502 and Mst. Fauzia Irfan v. Mst. Sabeeha Ishrat and 2 others 2008 CLC 1087.
21. ' I have considered submissions made by the learned counsel and I have also gone through the record as well as the case-law.
22. ' The ejectment application was filed as is evident from the title of the ejectment application against Roots School Network through its administrator/owner Muhammad Yaminullah Pervez Malik. Roots School Network is not a legal person: it is neither a company incorporated under the Companies Ordinance nor a society registered under the Societies Registration Act, 186Q nor a registered legal person under any other statute. Therefore it is only a name for its owner Mr. Muhammad Yaminullah Pervez Malik. Whether Mr. Malik wants to have a business name or mark of Roots School Network or not is a question of his choice. But the opposite party cannot be compelled to accept that person with mask and person without mask are two separate persons: they are one and the same.
23. ' The next submission by learned counsel for .Petitioner was that there has not been any agreement of sale and the Rent Controller has not taken this thing into consideration. Firstly a tentative rent order is only a tentative order and is not a final determination. No person can be allowed to get out of a tentative rent order and claim that a tentative rent order vitiated by stating that such and such question of fact or even such and such question of law had not been decided by Rent Controller. All these questions are to be decided when final order is passed. Therefore non-referring to agreements of sale in the tentative order does not vitiate the tentative rent order. Consequently ownership is a question which is in litigation in the two civil suits and learned counsel for the petitioner has himself stated that suit has been dismissed and present respondent's suit has been, except to the extent of damages, decreed and that two appeals are pending. Therefore question of ownership or sale agreement can be decided only in the High Court Appeals. The Rent Controller and the Appellate Court did not commit any faux pas by not alluding to the sale agreements.
24. ' Learned counsel for respondent is perfectly right in arguing that a tentative rent order must be obeyed by parties and the question would be whether there is a default or not. The Court has not to go into reasons for default. Learned counsel is also right in saying that a petition is not a second appeal and therefore evidence cannot be appraised in exercise of writ jurisdiction. However in this case I will have to see that whether without examining evidence this petition can be decided. It is admitted position that rent has been deposited all along in the rent case except for four months when rent was deposited not in the rent case but in the M.R.C. According to Mr. Azad this is not a default but it is a technical default. What should be the course of decision in such-like cases?
25. ' In Mst. Kulsum Bai's case (supra), ejectment application was filed. Tenant denied default. She stated that since landlord refused to accept rent and was insisting on enhancing the same she tendered rent by money order which was refused. Consequently she started depositing rent with the Rent Controller in M.R.C. It was pleaded that rent should have been deposited in the rent case and not in the M.R.C. High Court held that by depositing rent in the M.R.0 she had substantially complied with tentative rent order and that there was no specific directions that rent, thenceforth, be deposited in the rent case and not id the miscellaneous application.
26. ' In Jawaid Ashraf Khan's case (supra), facts were that during proceedings in the rent application tentative rent order was passed for payment of arrears and future rent. In the same order the Rent Controller observed that rent already deposited by the opponent in the miscellaneous application would be adjustable in the rent case. Application under section 16(2)' was filed which was allowed by the Rent Controller. The High Court observed that if the Rent Controller had properly applied his mind, he would have noticed that amount of Rs,16,000 was deposited prior to passing of the rent order and such deposit should have been taken into consideration by the Rent Controller.
27. ' In Major (Rtd.) A.S.K Samad's case (supra), facts were that as account of dispute between the parties, the opponents started depositing rent in Court in M.R.C. When ejectment order was passed the Rent Controller directed the tenant to deposit rent in the Rent Case. The tenant continued to deposit it in the M.R.C. Ejectment was ordered. The Supreme Court held that act committed by the tenant was depositing rent in M.R.0 rather than in the rent case and therefore tenant cannot be condemned for having been guilty of disobedience of the order of the Rent Controller so as to entail penalty of his eviction from the demised premises.
28. ' In Dr. Aftab Ahmed Khan's case (supra), the Honourable Supreme Court held that tenant, in all appearance, was not in any manner motivated by disregard of orders of the Rent Controller and the deposit in essence and in substance had been made by him in M.R.C. And therefore, landlord was in no way justified to claim noncompliance.
29. ' Case of Ashique Ali's case (supra), was strongly relied upon by Advocate for the respondent. Facts of this case were that an application for ejectment on ground of default was filed. Thereafter application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 was filed. Rent Controller passed an order directing landlord to withdraw amount of rent deposited in M.R.0 and to deposit the same and the future rent in the ejectment case. Thereafter application under section 16(2) was filed which was allowed, defence was struck off and eviction was ordered. F.R.A was dismissed by High Court and the matter went to the Supreme Court. The Honourable Supreme Court observed as under:--- "Admittedly, the petitioners neither withdrew rent amount deposited by them in Miscellaneous Rent Case No,273 of 1994 for the purpose of depositing the same in Rent Case No,313 of 1994, nor they deposited rent in terms of the order, dated 23-12-1997 passed under section 16(1) by the Rent Controller, therefore, there was non-compliance of the order of the Controller by the petitioners.
30. There appears to be no ambiguity or confusion with regard to the order, dated 23-12-1997 is specific and unambiguous, therefore, there was no justification for the petitioners not to deposit arrears and future rent in terms of,the order passed, consequently, non-compliance of it was wilful and deliberate: the circumstances, it cannot be said that the default in payment of "rent was a technical one."
31. ' Saifullah's case, Hafiz Shafatullah's case and Waqas's case (supra), are on the question of scope of interference in writ jurisdiction. In Mst. Fauzia Irfan's case, the following was observed:--- "6. I have given consideration to the arguments advanced by the learned counsel for the petitioner and have gone through the impugned orders as well as other material available on record. Under section 16(1) of the Ordinance, 1979 the Rent Controller has to make summary enquiry and pass tentative rent order directing the tenant to deposit the arrears of rent as well as future rent. In the present case also the learned Rent Controller had passed tentative rent order after considering the objections of the petitioner and after hearing both the Advocates. He had even mentioned in his order that the respondent/ landlord shall not withdraw the rent of the disputed period till the final disposal of the case. The learned Additional District Judge in his order, dated 24-9-2007 had also taken all the aspects of the case into consideration and after hearing the parties dismissed the appeal as the petitioner had failed to comply with the orders of the learned Rent Controller. I do not see any illegality or irregularity in both the orders. The impugned orders are not passed without jurisdiction. The order passed by the learned Rent Controller was tentative in nature, therefore, no evidence was required to be recorded for deciding the pleas taken by the petitioner. In the circumstances, it was binding upon the petitioner-tenant to comply with the orders which he has failed to do."
32. ' In the present case, it is not case of respondent No,1 that tentative rent has not been absolutely complied with. Contention of the learned counsel for respondent No,1 was that it was deposited in M.R.0 (albeit for four out of forty three months) rather than in the ejectment case. Learned counsel for petitioner argued that it is a technical default and learned counsel for the respondent argued that default is default, question of wilfulness and intent cannot be gone into while question of default is looked out. This case is completely answered by Dr. Aftab Ahmed Khan's case, where the Honourable Supreme Court has held that if the rent is deposited though in wrong case i,e, rather than in ejectment case, in M.R.C, the interest of the landlord is no way jeopardized and deposit in essence and in substance has been made. Case of Ashique Ali (supra) is distinguishable. In that case the Rent Controller had specifically directed party to take out of M.R.0 the amount deposited and then to deposit it in the ejectment case and this order had been disobeyed by the tenant. In the present case there has been no such direction.
33. ' Purpose of litigation is to deliver justice and not to engage in litigation on the basis of mere technicalities particularly so when violation of technicality has not caused any prejudice to the other party. If the tenant had intention of disobeying the order of the Rent Controller, he would not have deposited Rs,9,36,000 in one case and Rs,96,000 in the other case. The tenant had dutifully deposited Rs,10,32,000 and therefore, in the words of Mr. Justice Wajihuddin Ahmed, in essence and in substance, is in compliance with the tentative rent order.
34. ' Consequently this writ petition is allowed and order dated 13-9-2004 passed by learned Rent Controller and Judgment dated November 6, 2008 passed by the Appellate Court are set aside.
35. Tenant is directed to take the money out of the rent case and deposit it in the ejectment case within a period of fifteen days of the date of this order.