1. HAMOODUR RAHMAN, C. J.-This is an appeal by special leave from the judgment and order of a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, reversing the judgments of the Rent Controller, Karachi, and the Additional District Judge, Karachi, in a second appeal under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
2. Leave was granted in this case to consider whether the concurrent findings of the Courts below that there had been defaults in the deposit of arrears of rent by the respondent were open to interference in second appeal.
3. The circumstances, which led to the second appeal may briefly be stated as follows The respondent was a tenant of bungalow, No. 10, McNiel Road, Karachi, which was on the 1st of April 1960, transferred to the appellant under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The appellant served on the respondent a statutory notice under section 30 of the said Act, but before the expiry of the period of three months prescribed under the said section, filed a suit for the recovery of possession of the bungalow. This suit was later on withdrawn with permission to institute fresh proceedings and on the 25th of January 1962, the appellant applied to the Rent Controller, under section 10 of the Karachi Rent Restriction Act, 1953 (now repealed) for a certificate for filing a suit for the eviction of the respondent on the ground that the latter had sublet the bungalow and also caused damage thereto. This application also contained an averment to the effect that the respondent had made defaults in payment of the rent but this was not made a ground for eviction.
4. During the pendency of these proceedings, the Karachi Rent Restriction (Amendment) Ordinance, 1962, came into force. It gave power to the Rent Controller to treat applications for certificates as applications for eviction as also empowered him to direct the tenant to deposit arrears of rent together with the accruing monthly rent before the 5th day of each month either on the first date of hearing or as soon as possible thereafter, but before the framing of issues.
5. In exercise of these new powers, the Rent Controller commenced proceedings for fixing the rent tentatively and for ordering the deposit of arrears as well as accruing rent. The respondent objected to these proceedings on the ground that the issues having already been framed and evidence partly recorded in the certificate proceedings, the Rent Controller had no jurisdic--tion thereafter to order the deposit of any arrears. This objec--tion was rejected and the Rent Controller, after inspecting the bungalow on the 3rd of January 1963, tentatively fixed the rent at Rs. 90 per month as also directed the respondent to deposit the arrears amounting to Rs. 2,970 in three equal instalments payable on the 4th February, 4th March and the 4th April 1963, respectively, together with the accruing monthly rents. This order also directed that the payments should be made by cheques drawn in favour of the landlord.
6. The respondent's appeal against this order was accepted by the District Judge, Karachi, on the 31st of May 1963. He held that the Rent Controller could not direct the payment of the arrears to the landlord, as he had purported to do under the amended provisions of the law, namely, subsection
(6) of sec--tion 10 of the Karachi Rent Restriction Act.
7. The appellant then came up in second appeal from this order to the High Court where, by consent of the parties, the following order was recorded by Division Bench on the 15th of November 1963 :- "The opponent/tenant will deposit in the Court of the Rent Controller his monthly rent at the rate of Rs. 90 per month commencing from the third instalment due on 5-4-1963 within three months from today, and the papers in this case will be returned immediately to the Rent Controller so as to enable him to dispose of this matter on merits without any further delay."
8. This period of three months expired on the 14th of February 1964, but the deposit was made on the 18th of February 1964, in the Nazarath of the District Courts at Karachi. The appellant, therefore, on the 25th of February 1964, applied under sec--tion 13 (6) of the West Pakistan Urban Rent Restriction Ordi--nance, 1959, which had since been made applicable to Karachi also, for striking out the defence of the respondent. In this application it was also stated that the amount deposited even on the 18th of February 1964, fell short to the extent of Rs. 180, i.e., two months' rent.
9. In answer to this application, the respondent contended that the default, if any, was due to no fault of his because he had actually gone to the Nazir on the 12th or 13th February 1964, for making the deposit. He was then told that no deposit could be accepted without an order of the Rent Controller. He could not go to the Rent Controller on the 14th, 15th and the 16th February as these were closed holidays due to Eid. He approached the Additional Civil Judge, Karachi, who was also the Rent Controller, on the 17th of February 1964, along with his Advocate and filed an application of which a copy was subsequently produced in the Court of the Rent Controller and marked as "Exh.
10. D-1". The Civil Judge endorsed the necessary order upon this application and the respondent went with it to the Nazarath Branch. On that day the Nazir himself was on leave. He was, therefore, directed to go to one Mirza Zahid Beg, an Upper Division Clerk, in the "Nazarat" to make the deposit.
11. The latter told him to come on the following day, as the Junior Nazir was also absent and the receipt books were in the latter's custody. The respondent, accordingly, went on the 18th February 1964, and deposited the amount of Rs. 1,980 in the "Nazarat."
12. This application for striking out the respondent's defence came up for hearing on the 4th March 1964, when neither the respondent nor his Advocate was present. The 'application for striking out the defence was accordingly allowed ex parse. An application for setting aside the ex parte order filed on the 6th March 1964, was also dismissed, but on appeal, the Additional District Judge of Karachi again set aside the order of the Rent Controller and directed him to bear the case on merits. On remand, the Rent Controller again, by his order, dated the 25th of February 1965, maintained his earlier order and struck off the defence of the respondent. This order was upheld on appeal by the Additional District Judge, Karachi who not only agreed with the Rent Controller that the respondent's defence was rightly struck off but also went on to hold that he was a "chronic defaulter" and had "never deposited any amount within time".
13. On second appeal, the learned Single Judge has disagreed with the findings of the Courts below on the question as to whether there was any sufficient cause for the default committed by the respondent in carrying out the consent order recorded by the High Court and has come to the conclusion after examining the evidence that the Courts below had come to their finding that the respondent had been guilty of default on a misreading of the evidence.
14. Learned counsel appearing in support of this appeal has contended that the learned Single Judge has approached the appeal as if it was a first appeal omitting to notice that under the explanation appended to subsection (4) or section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, an appeal from an order of an appellate authority has to be treated as an appeal under section 100 of the Code of Civil Procedure. Apart from this, the learned counsel has also contended that the learned Judge in the High Court dealt only with one question, namely ; as to whether there was sufficient cause for the respondent's failure to make the deposit in terms of the consent order passed by the High Court on the 15th of November 1963. There was, it is contended, a shortfall to the extent of Rs. 180 even if the delay in making the deposit under the said order of the 15th of November 1963, could be condoned.
15. It is, no doubt, true that the learned Single Judge in the High Court has not referred to section 100 of the Code of Civil Procedure and has dealt with the facts at large as if the appeal before him was an appeal on facts, but having perused the judg--ments of the Rent Controller and the Additional District Judge, Karachi, in appeal, we have no hesitation in coming to the conclusion that there were enough grounds for the high Court to interfere in second appeal Both the learned Rent Controller and the learned Additional District Judge appear to have proceeded largely on conjectures and surmises ignoring some material evidence on the record. Thus, the finding of the Additional District Judge that the respondent was a "chronic defaulter" or a "regular defaulter" who bad "never deposited any amount within time" does not appear- to be based on any cogent evidence at all.
16. The evidence of the Upper Division Clerk, of the Nazarath, who appeared in support of the respondent's case was brushed aside purely on the surmise that it was not possible that no officer was available in the Nazarat to accept the deposit on the 17th of February 1964.
17. Even Syed Liaqat Ali, the Nazir of the District Court, on whose evidence reliance has been placed both by the Rent Controller and the learned Additional District Judge, admitted that Ahmad Ali, the Junior Nazir, who was incharge of the rent deposits, was absent on the 17th and he himself had "no personal knowledge of the practice whether the two cashiers of the Rent Controller surrendered their receipt books after the office hours to Ahmad Ali" or not. He did not also give the name of the officer, if any, who could have accepted the deposit on the 17th February 1964. As the Senior Nazir he would have known the name of the officer who in the absence of the Junior Nazir was empowered to accept such deposits.
18. Mirza Zahid Beg, who is an Upper Division Clerk in the Nazarat, on the other hand, admitted that he was told by the respondent that the 17th was the last day for making the deposit but he did not direct the respondent to go to the Nazir or any other officer. He also brought the Attendance Reg1ster of the Nazarat to show that Ahmad Ali, the Junior Nazir, was on casual leave on that date.
19. There was no question put in cross-examina--tion either to Liaqat Ali or to Mirza Zahid Beg, to suggest that the latter was giving false evidence to support the respondent. Never--theless, the Courts below took the view that Mirza Zahid Beg, had tried to support the respondent. This finding too was clearly not based upon any evidence.
20. In addition to this, there are other legal aspects of the case which have not been noticed by any of the Courts below the High Court and it appears to us that without coming to any definite finding on these points it was not possible for either the learned Additional District Judge or the Rent Controller to come to any finding as to the default, if any, by the respondent. The operative portion of the order of the Rent Controller by which the deposit was required to be made reads as follows :- "The applicant is, therefore, entitled to recover the arrears of rent from 1-4-1960.The arrears of rent come to Rs. 2,970 till January 1963. The opponent is ordered to clear off this arrear of rent in three equal instalments payable on the 5th February, 5th March and 5th April 1963, provided he also pays the current rent regularly every month till the decision of the case."
21. The learned counsel appearing for the respondent contends that this order suffers from two serious defects, namely ; that it is not clear if the rent of January 1963, is included in the arrears and that in so far as it has not fixed a definite date for the payment of the current rent it is legally defective and unenforceable.
22. In so far as the first point is concerned, it is said, that even to ascertain if there was any short-fall in the payment made on the 18th February 1964, one has necessarily to construe the order passed by the learned Rent Controller on the 3rd January 1963. If the amount of Rs. 2,970 was inclusive of the rent for January 1963, then there never was any default. In fact, the respondent, it will be found, has been paying in advance according to the calculations submitted by him. The consent order of the 15th November 1963, made no material change in this except for extending the time of payment up to a period of 3 months from the 15th November 1963. Both the orders have to be read together in order to ascertain if there has in fact been any default.
23. As regards the second point, it is contended, that this being a penal order had to be made strictly in accordance with the provisions of the law. In the absence of any specification of the date by which the current rent had to be paid no question of default could possibly arise. In support of this contention reliance is also placed on two earlier decisions of the Karachi Bench itself in the cases of Ahsan Ali v. Jaffar Ali (PLD 1964 Kar. 418) and Khair Muhammad Nizamani v. Abdul Quddus (PLD 1965 Kar. 367).
24. It is also contended that there is nothing in the consent order of the 15th November 1963, about the payment of monthly rent, for, the agreement was only with regard to the arrears.
25. In the view we have taken it is not necessary for us to express any definite opinion one way or the other with regard to these contentions except to point out that none of these aspects of the case have as yet been examined by any Court below, for, they have been concerned mainly with the question as to whether there was or was not any sufficient cause for the single day's default in making the deposit according to the order of the High Court passed on the 15th November 1963.
26. Indeed the High Court confined its decision only to this question.
27. For the reasons already given by us we are of the opinion that the learned Single Judge of the High Court had the jurisdiction in second appeal to interfere with the concurrent findings of the Courts below even on this question, because, those concurrent findings were arrived at by ignoring material evidence and on the basis of surmises and conjectures, even though the High Court has not specifically referred to these grounds. There were a number of questions of law arising in this matter which had been left unconsidered and could well have furnished a valid ground for interference in second appeal.
28. We are of the view, therefore, that no legitimate exception can be taken to the order of the High Court remanding the case back to the Rent Controller for a proper inquiry and decision as to whether there was, in fact, any default or not on the part of the respondent after treating the deposit made on the 18th February 1964 as a valid deposit.
29. We are in agreement with the High Court that there were sufficient grounds for preventing the respondent from complying with the order of the High Court, dated the 15th of November 1963. The appeal must, therefore, be dismissed and the records sent down immediately to the Rent Controller for expeditious disposal of this matter.
30. In disposing of the question of default the Rent Controller will take into account the contentions of the respondent that have been referred to earlier in this judgment.
31. There will be no order, however, as to costs in view of the special circumstances of this case.