1. ' The facts relevant for the disposal of this appeal are that on 6-12-1966 the respondents-landlords filed eviction application against the appellants tenants seeking their ejectment from the house No, C. S. 1280 to 1283 Ward `A' Larkana of which they were tenants since 1953 on the grounds of default and personal use. In the proceedings, the learned Rent Controller on 30-1-1967 passed a tentative rent order directing, the appellants to deposit arrears of rent at the rate of Rs, 5 per month before 28-2-1967 and future monthly rent before 15th of each calender month. The order reads thus .- "Present Advocate of the applicant-opponent No, 2 self and Mukhtiarkar of opponents Nos. 1 and 4 is also present. The opponents are directed to deposit in Court the arrears of rent at the tentative rate of Rs, 5 p. In. On or before 28-2-67. They should also continue to deposit in Court the future rent at the alone rate before 15th of every month failing which the defence will be struck off and the applicant will be put into the vacant possession of the premises through the process of the law, issues also on 28-2-1967."
2. ' On 27-2-1967, the appellant Muhammad Siddique however made an application for extension of time. The learned Rent Controller allowed the application and extended the time by one month by his order dated 28-2-1967. Thereafter the appellants again made an application on 28-3-1967 wherein they pleaded that the amount of arrears of rent was quite substantial which they had not been able to arrange on account of their poverty and therefore they may be given further time to make the payment. The learned Rent Controller granted this application and extended the time by one month more by his order dated 28-3-1967. Against this order the respondents-landlords, went in appeal which was allowed and the defence of the appellants was ordered to be struck off. The appellants challenged this order in second appeal before the High Court. In the second appeal, the High Court, held that the extension of time for depositing rent granted by the Rent Controller was illegal and therefore the order of the Rent Controller had been on that account rightly set aside but it went on to hold that in order to strike off the defence of tile appellants it was necessary that an application should have been made by the respondents and thereby partially allowed the appeal, set aside the order of the learned Additional District Judge and remanded the matter to the Rent Controller with the following observations :- "In the result the appeal, is partially allowed. The order of the District Judge striking off the defence of the appellant is set aside, but as I agree with his finding that the Rent Controller had illegally extended the time for complying with his order of 30-1-1967, the case is remanded to the Rent Controller for hearing. But it will be open to the respondents to file an application before the Rent Controller for striking off that defence of the appellant and if such an application is filed, it shall be disposed of within 2 months."
3. ' On remand, the respondents moved an application for striking off the defence of the appellants who had in the meantime deposited Rs, 655.66 towards the rent on 25-4-1967 within the extended time granted by the Rent Controller. The appellants contested the application and denied that they had committed any wilful default and pleaded that they did not deposit the rent on the due date as time was extended by the Court and they having actually deposited within the time so extended by the Court, they could not be penalised for the act of the Court. The learned Rent Controller after taking into consideration the relevant orders of extention of time passed by the Rent Controller gave a finding that since the rent was not deposited before the first due date on account of the Court extending time for depositing the rent; the appellants could not be said to have committed wilful default so as to be visited with the penatly of their defence being struck off and accordingly dismissed the application filed by the respondents. The order of the Rent Controller was challenged in appeal by the respondents. The learned District Judge in appeal held that the appellants had no "mood" to pay rent and therefore the default committed by them was wilful and thereby allowed the appeal and set aside the order of the Rent Controller and struck off the defence of the appellants by his order dated 5-12-1972. Hence this second appeal.
4. ' Mr. G. A. Brohi, learned counsel for the appellants, contended that the order of tentative rent passed by the learned Rent Controller on 30-1-1967 was illegal and vague and was not passed in conformity with the provisions of Order XIII, rule 6 of the Ordinance and therefore its non- compliance could not legally result in the defence of the appellants being struck off. His argument was that the rent order did not specify the period for which the arrears had to be deposited and was so worded that persons of the appellants understanding could not have understood the order properly. He next argued that the main eviction application having been filed on 6-12-1966, the appellants could not be called upon to deposit the arrears for more than three years before of the application, but according to the tentative rent order the appellants were directed to deposit rent since 1953, as claimed by the respondents and therefore the rent order being illegal the appellants were not liable to comply with such an illegal order and therefore defence of the appellants could not be struck off under the law on this account as well. In support, the learned counsel relied upon PLD 1968 SC 213 and PLD 1964 Kar.
5. 418.
6. ' The next contention raised by the learned counsel was that after the aforesaid tentative rent order was passed on 30-1-1967. The learned Rent Controller extended the time for depositing the rent before 28-4-1967 and the appellants did deposit the entire arrears on 25-4-1967, including for the period much beyond three years, and therefore the appellants could not be said to have committed wilful default in complying with the rent order, even if it was held that legally the learned Rent Controller could not extend the time, as, the appellants could not be penalised for something done by the Court, wrongly.
7. ' Both the contentions raised by the learned counsel are well founded. Bare reading of the order would indeed show that the period for which the arrears had to be deposited is not specified. The order would also appear to show that the appellants were called upon to deposit arrears from the year A 1953 i. e. For nearly 14 years as claimed by the respondents in their rent account, whereas under the law the appellants could be only called upon to pay rent beyond 3 years before filing of the application on 6-12-1966. That being so, tentative rent order was indeed both vague and illegal and as such its non-compliance could not justifiably result in the striking off the defence of the appellants. Reference in this connection may be made to PLD 1964 Kar.
418. Futhermore, it is an admitted position that the learned Rent Controller had extended the time for depositing the rent and the appellants deposited the rent before the extended date. In these circumstances, even if the learned Rent Controller be said to be not legally empowered to extend the time, the appellants could not be penalised for that and therefore their failure to deposit arrears as well as future rent, in the circumstances of this care, could not be said. Wilful, even if it is assumed that they had technically committed default. It will further be noticed that the appellants had in fact deposited Rs, 655.66 in respect of the premises of which rent was admittedly Rs, 5 per per month. Mr. A. K. Lakhan, learned counsel for the respondents, very fairly conceded that the appellants were not legally bound to deposit so much amount and were only bound to deposit Rs, 180 being the arrears of rent for 3 years before filing of the eviction application. It would thus appear that on 25-4-1967, they had deposited the rent much in excess of what they were legally bound to deposit, which only showed their willingness to comply with the order, beside the fact that they had also to be given credit for the excess amount. In the above circumstances, the learned Rent Controller was perfectly justified and within his rights to hold that the appellant could not be penalised for the wrong act of the Court and that the default on the part of the appellant was not wilful, and the learned District Judge was not justified in interfering with his order.
8. ' For the aforesaid reasons, I allow this appeal, set aside the order passed by the learned District Judge striking off the defence of the appellant and remand the case to the learned Rent Controller for deciding the main eviction application on merits within three months, as the matter is already over-delayed. The appellants shall be given credit for the rent deposited by him in excess of the rent payable by them under the law towards the arrears. In the circumstances of the case, there will be no order as to costs.