' Rent Case No, 61/65 was filed by Anis Ahmad Rushdi, appellant No, 1, for ejectment of the respondents from the premises in question on the ground of personal requirement and subletting.
It had been contended before me by the learned counsel for the appellants that the ejectment application bad also been filed on the ground of default. Learned counsel had taken me through the original rent application and I could not find any averment therein to the effect that the respondents had defaulted in the payment of rent. Furthermore, issues were framed by the consent of learned counsel than appearing for the parties and I find that no issue was framed on the question of default. The contention of learned counsel for the appellants that Rent Case No, 61/65 had been filed also on the ground of default is, therefore, not accepted.
2. On 3rd December, 1955, the Rent Controller passed the tentative order of rent under the provisions of section 13 (6) of the 1959 Rent Ordinance. The two learned counsel who appeared before me stated that there was no dispute about the rate and arrears of rent. On 11th April, 1966, the rent application was dismissed for default. On 19th April, 1966 an application, dated 14th April, 1966 was filed on behalf of the appellant No, 1 under Order IX. Rule 9, C.P.C. Praying for setting aside the order, dated 11th April, 1966 dismissing the rent case for default. By order dated 26th April, 1966 the Rent Controller ordered for issuance of notice of that application. Before the notice of this application for restoration was received by the respondents, they sent a pay order to the appellant No, 1 for six months rent from July to December, 1966 under cover of the Advocate's letter, dated 30th June, 1966. It was further mentioned in the letter, dated 30th June, 1966 of the respondents'
Advocate that rent upto 30th June, 1966 had already been deposited by the respondents in the Rent Case No, 61/65. Appellant No, 1, by his reply dated 3th July, 1966, stated as follows :- "I have to state I cannot accept the enclosed pay order for Rs, 900 from your clients Abdul Hafeez and others as a suit for ejectment is pending against them, The cheque is returned herewith."
' By order dated 15th August, 1966, the Rent Controller restored the Rent Case No, 61/65. On 15th September, 1966 an application under section 13 (6) of the 1959 Ordinance was filed for striking off the defence of the respondents. On 21st December, 1966 the respondents deposited the rent with the Rent Controller for 12 months, that is, from 1st July, 1966 to 30th June, 1967. A second application under section 13(6) of the 1959 Ordinance was filed by the appellant No, I for striking off the defence of the respondents for default in the payment of rent for September, October and November, 1966.
By order dated 19th August, 1968 the defence of the respondents was struck off by the Rent Controller Karachi. Rent Appeal No, 445/69 was filed by the respondents and by order, dated 1st December; 1969 the learned III Additional District Judge Karachi allowed the appeal and set aside the order of Rent Controller striking off the defence. The present Second Appeal No, 70/70 had been filed by appellant No, I being aggrieved with the order, dated 1st December, 1969 of the 1st Appellate Authority. During the pendency of this appeal the premises in question have been sold by appellant No, 1 to one Abdul Wadood. After the sale of the disputed property, an amendment application was filed which was allowed and Abdul Wadood was joined as appellant No, 2 in this appeal.
3. I have beard learned counsel for the appellants and learned counsel for the respondents. The 1st Appellate Authority had allowed the appeal on the ground that when the rent application was dismissed for default on 11 th April, 1966 the tentative order for deposit of rent dated 3rd December, 1965 "died its natural death" and subsequently, when the rent application was restored, on 15th August, 1966, the Rent Controller should have passed a fresh order for deposit of future rent as well as for deposit of arrears of past rent, and as no such order was passed, the question of default did not arise. Learned counsel had drawn my attention to the latest decision of our Supreme Court on this question in the case of Muhammad Saleh v. Muhammad Shafi (1) wherein it has been held as follows :- "We are, therefore, of the view that when the ejectment application was restored by the learned Rent Controller on 12th December, 1969, the order for depositing monthly rent .Under section 13 (6) of the Ordinance also stood .Revived with retrospective effect, and as such non-compliance with the same rendered petitioner's defence liable to be struck off."
The law has been laid down in very clear terms by the Supreme Court of Pakistan and that is that when a dismissed rent application is restored. The tentative order for deposit of monthly rent under section 13 (6) of the Ordinance, 1959 also stands revived with retrospective effect and it is not necessary that a fresh tentative order for deposit of rent be passed and that for non-compliance with such order the defence of the tenant is liable to be struck off.
' Learned counsel for the tenant could not cite any case law to the contrary. Learned counsel, however, referred to PLD 1972 Lab. 603, PLD 1969 Kar. 546 and 1982 CLC 1967 in attempting to argue that a different view was possible. Firstly, these authorities cited by the learned counsel for the respondents are not relevant for the point in issue, and, secondly, the law has been declared in very clear terms by the Supreme Court of Pakistan in 1982 SCMR 33 and till such time this authority of the Supreme Court rules the field all Courts in Pakistan are bound by the same. It may, therefore, be observed that on restoration of Rent Case No, 61/65 by order, dated 15th August, 1966, the tentative order of rent passed by the Rent Controller on 3rd December, 1965 stood revived and it was not necessary for the Rent Controller to have passed a fresh order in that respect.
4. It was then contended by the learned counsel for the appellant/ landlord that it was an admitted position that rent payable under the tentative rent order, dated 3rd December, 1965 was not deposited from
(1) 1982 SC 1Vi R 33 ' July, 1966 till 21st December, 1966 when the respondent deposited one year's rent, that is, for the period from 1st July, 1966 to 30th June, 1967. In my view as the rent application has not been restored till 15th August, 1966, in case the rent had not been deposited till 15th August, 1966. For the period when the rent application remained dismissed there would be no default on the part of the tenant. This is so as during this period, the rent application was lying dismissed and when the rent application was lying dismissed it cannot be said that the tentative rent order remained alive. The tentative rent order stood revived only when the rent application was restored.
5. The next question that arises for consideration, which in my view is the crucial point in this appeal, is whether the respondents by not depositing rent till 21st December, 1966 after the rent case had been restored on 15th August, 1966, had made a default for which their defence was liable to be struck off. Learned counsel for the appellant, as observed earlier had argued that this was a plain case of default as admittedly the rent was not deposited till 21st December, 1966 although the rent application had been restored on 15th August, 1966. In this regard learned counsel placed reliance on 1982 SCM R 33. It was contended that when a rent application was restored by order dared 15th August 1966 of the Rent Controller, the tentative rent order stood revived with retrospective effect, that is with effect from 3rd December, 1965. It was contended that immediately on restoration of the rent application without any loss of time the respondent should have deposited the arrears due under the tentative order of rent, dated 3rd December, 1965.
6. On the other hand, it was argued by Mr. Masood Hussain Khan, learned counsel for the respondents that the present was not a case in which the defence of the respondents was liable to be struck off. It was contended that six months' rent from July, 1966 to December, 1966 was tendered through pay order by' the respondents to appellant No, 1 at a time when the rent application was lying dismissed and the appellant No, 1 was not justified in declining to accept this rent. It was contended that if the appellant No, 1 was not justified in refusing to accept this rent for the crucial period, a case was not made out for striking off the defence of the respondents, under section 13 (6) of the 1979 Ordinance. It was further contended that the mere non-deposit would not in every case render the defence of the tenant to be struck off and there are cases where the superior Courts of this country have given relief, although technically there was a default in the deposit of rent. In this connection learned counsel relied upon Hashim Khan v. Ghulam Nabi (1) and Saeedan Bibi v. All Hussain (2). In 1973 SCMR 112 Supreme Court of Pakistan took the view that the default in depositing current monthly rent by the tenant in that case took place on account of misinterpretation of the tenantive order by his counsel and, therefore, the default was bona fide and not wilful and it was held tbat the defence could not be struck off in such circumstances. 1975 SCM R 261 is also a case about misinterpretation of the tentative order. Learned counsel also relied upon Maqbool Ahmad Muhammad Akbar All (3) wherein it was held by a learned Single Judge of the Lahore High Court that in the circumstances of that case there was no violation of the tentative order for deposit of rent and
(1) 1975 SCMR 112 (2) 1975 SCM R 261
(3) PLD 1978 Lab. 258 as such the defence of the tenant could not be struck off, although technically there was a default.
7. In my view it cannot be said as a principle of law that in each and every case where the rent has not been deposited.By the tenant strictly in compliance with the tentative order of rent, the defence of the tenant has to be struck off. There can be exceptional cases, although they are rare, where in spite of there being a technical default, the Rent Con-B troller or the Court can come to the conclusion that the facts and circumstances of that case do not justify the striking off the defence of a tenant, although there is a technical default. The three reported judgments cited by the learned counsel for the respondents, support the principle in this regard. The question is whether in the circumstances of this case, although there is a technical default, was the defence of the respondents liable to be struck off. In my view, this is one of such exceptional cases where the respondents as tenants are not to be penalized by striking off their defence on account of the technical default in the payment of rent. As observed earlier, rent had been tendered by the respondents to appellant No, 1 for six months, 1. e. For the crucial period, at a time when the rent application was lying dismissed and the notice of the application for restoration of the rent case had not been served upon the respondents. In my view the appellant No, 1 was not justified in refusing to accept the rent tendered by the respondents. Further, the possibility cannot be ruled out that the respondents had been advised by their counsel that as the rent application had been dismissed resulting in the dismissal of the tentative order also, the tentative order did not stand revived on account of the restoration of the main rent case, as at the time the position of the law was not clear and it is only recently the law on the point has been clarified by the Supreme Court of Pakistan. It was contended by the learned counsel for the appellant that there is no evidence on record that any such advice was given to the respondents. No doubt there is no such evidence on record but as observed earlier, the possibility that such advice was given, cannot be ruled out. If such advice was given, the respondents under such advice may not have deposited the rent and being under the impression that the rent had been tendered and unjustifiably refused by appellant No, 1, they were under no obligation to deposit the same in Court for that crucial period. In my view, on the basis of these facts and reasons, the respondents are not liable to be penalized with the extreme penalty of their defence being struck off.
8. This Second Appeal No, 70 of 1970 is accordingly dismissed but with no order as to costs. R and P of the case may be returned to the concerned Rent Controller forthwith. This is a very old matter and it is directed that the learned Rent Controller will dispose off the rent case in accordance with law within six months positively.
9. It may further be observed that the rent case will be decided only on the question of subletting, as it has already been conceded by the learned counsel for the appellants that the ground of personal requirement was no longer available as the property in appeal has been sold by appellant No: 1 to appellant No, 2, and no ground for default had been raised in the rent application.