' This is tenant's appeal against the order of ejectment passed against him by the learned Rent Controller, Ghotki, in Rent Application No.9/82. The premises in dispute is a shop bearing No.D-95 situated in Shahi Bazar, Panoon Akil which was purchased by the respondent from one Abdul Razak on 5-4-1980. At the time of its purchase by the respondent appellant was occupying this shop as a tenant of its previous owner Abdul Razak.
2. On 25-4-1982 the respondent filed Rent Application No.9/82 in the Court of the Rent Controller, Ghotki, praying for the ejectment of the appellant on grounds of default of rents for the period from 5-4-1980 to 25-4-1982. In para. 6 of the rent application it was alleged: "6. That the applicant has also sent notice under section 18 of The Sind Rented Premises Ordinance, 1979 on 24-2-1982 through his Advocate by Registered Post A/D, but the opponent has neither replied nor has paid rent."
' Notice for this application were issued to the appellant and service was held good. Appellant however remained absent. The ease before the Rent Controller was adjourned from time to time and on 15-9-82 the learned Rent Controller after recording the absence of the appellant adjourned the case for 29-9-1982 for ex parte proof. On 29-9-1982 the respondent filed affid wit of proof alongwith some documents including copies of notices and postal receipts of service on the appellant. The case was put off to 6-10-1982 for arguments. On 6-10-1982 the appellant remained absent and respondent/landlord's counsel argued the case.The case was put off to 13-10-1982 for orders. On 13-10-1982 the learned Rent Controller announced the orders allowing the rent application and directing the appellant/opponent to hand over vacant possession of the premises to the respondent/applicant within two months of the date of the order. It is against this order that the appellant has filed this first rent appeal.
3. The main grievance raised in the memo. of appeal and argued before me by the learned counsel is that the respondent has cleverly managed to obtain this ex parte order of ejectment against the appellant and the appellant has been condemned unheard. The appellant has urged in his appeal that he was purposely kept in dark and the respondent has fraudulently managed to secure the endorsement regarding service of notice to him in order to obtain the ex parte order and throw him out of the premises, that he knew nothing about the rent application till 7-1-1982 when "Bailiff of the Court of learned Rent Controller, Ghotki came to the appellant and informed that an execution application has been filed by the respondent for ejectment of the appellant from shop in question and ejectment order has already been passed." In paras. 2,3 and 4 of the grounds of memo, of appeal the appellant has produced his side of the story as under:- "(2) That, the appellant has never been served with the notice of transfer of property by the Respondent nor he has received notice and/or information regarding institution of ejectment application against him.
(3) That, the entire endorsement on the notices issued by the learned Court of Rent Controller are false, bogus and that the Respondent has managed to get the endorsed as served upon the appellant.
(4) That, the ejectment order has been passed against the appellant due to fraud played by the Respondent upon the Court as such same is liable to be set aside by this Honourable Court."
4. The learned counsel for the appellant when confronted with the endorsement of the bailiff and signatures of the appellant on the summons stated that none of them were genuine signatures of the appellant. According to the learned counsel it was either manipulated with the connivance of the process-server or through impersonation of someone else representing himself to be the appellant and signing as such. Whether the respondent had the ingenuity or the means to orchestrate the whole thing in a manner it has been done, is doubtful but such a possibility cannot be completely overruled. After all it is a question of fact. Neither the bailiff nor the postman has been called and subjected to cross-examination to conclusively prove the service of the notice and also the identity of the appellant to ensure that the person who had signed the summons or receipt were none else but the appellant. In this first appeal this point is being raised for the first time and the-appellant firmly denies any service and disowns the signatures appearing on the summons and the receipts. Neither the bailiff nor the postman are present to belief this statement.
In the circumstances the ex parte order is to be set aside and the appellant must be allowed an opportunity to contest the proceedings and put up his defence according to law.
5. This ex parte order was passed on 13-10-1982 and the appeal has been filed on 22-1-1983, it is clearly time-barred. But if the ex parte order of ejectment was passed without service of the notice of the rent application then time cannot be computed from the date of the order. The time would run from the date of knowledge of the ex parte order. As stated in appeal the appellant acquired this knowledge on 7-1-1983, when, according to him, the bailiff of the Court informed the appellant "that execution application has been filed by the respondent for ejectment of the appellant from the shop in question and ejectment has already been passed ex parte. In this view of the matter the appeal filed on 22-1-1983 would be within the prescribed period of limitation of 30 days.
6. The learned counsel for the appellant has invited my attention to a case reported in 1982 CLC 1314 where it was held "that where the Court reaches the conclusion that the ex parte order was passed without notice then the bar of limitation provided under section 21 of the 1979 Ordinance would not be applicable and the appeal would be maintainable. I fully agree with the view taken by Nasir Aslam Zahid, J, in this case and hold that this appeal does not suffer from the bar of limitation.
7. Before parting with the case it is necessary to deal with another development in this appeal which prompted the learned counsel for the respondent to move an application No.203/83 praying for the striking off the defence of the appellant and for ordering his ejectment forthwith for the reason that he has committed a default in complying with the order of depositing the arrears of rent in terms of the order dated 1-3-1983 passed by this Court in this appeal. A controversy arose whether the effect of non-compliance of this order would simply liquidate the stay of ejectment during the pendency of the appeal or would result in striking off the defence of the appellant in terms of section 16(2) of the Sind Rented Premises Ordinance, 1979. The counsel for the appellant submitted that after the appeal is filed in the High Court any interim relief by way of staying the ejectment proceedings during the pendency of the appeal is an exercise of power under Order XLI, rule 5, C.P.C. On the other hand the learned counsel for the respondent who has moved this Application No.203 of 1983 contends that such an order of stay is not an order under Order XLI, rule 5 but an order under section 16(2) of the Sind Rented Premises Ordinance, 1979 and must follow the penal consequences prescribed for a default of non compliance of such an order. The learned counsel for the respondent has relied upon 1980 SC MR 779 in which a Bench of two Hon'ble Judges consisting of Mr. Justice Dorab Patel and Mr. Justice Safdar Shah refused to grant special leave to appeal to the tenant/petitioner whose defence was struck off by the High Court on account of his failure to deposit rents in terms of the order of the High Court in second appeal. The relevant portion of this order is as follows:- "Learned counsel's only other submission was that the learned Judge had erred in striking off the defence of the petitioner, because the High Court in its second appeal did not have the power to strike off a tenant's defence even if the tenant was in breach of the order for deposit of rent. This submission was rejected in the High Court and in rejecting it, the learned Judge relied on judgments of the High Court at Karachi Roshan Din v. S.M. Badruddin and in Abdul Qayum Ansari v.
Salahuddin Qureshi. We agree with the view taken in these judgments, therefore, we see no merit in learned counsel's submission."
' The balance of authority is in favour of the learned counsel for the respondent and as such however pursuasive the contention of the learned counsel for the appellant may appear to be I cannot agree with his contention that the failure to comply the order of deposit would not result in the consequences visualized by section 16(2) of the Sind Rented Premises Ordinance, 1979. But in the present case the impact of the decisions in these cases would not effect the appellant for the reason that in my opinion there has been no default in complying the order of this Court. This order was passed on 1-3-1983 and runs as follows: "The stay is confirmed subject to the condition that the appellant shall deposit arrears of rent for the period commencing from 5-4-1980 upto 28-2-1983 at the rate of Rs.300 per month with the Rent Controller concerned within a period of three months from today and shall also deposit current rent on or before 10th of each month. The rent for the month of March is to be deposited on or before 10th April, 1983."
' It is admitted position in the case that before the expiry of three months the appellant deposited a sum of Rs.9,500 vide receipt No.410, dated 31st March, 1983 which is filed on the record. As such the order was complied with within three months. Further receipts have been filed to show that the monthly rent is being continously deposited in Court in obedience of this order and are on the record. The misfortune of the appellant however is traceable to a mathematical calculation of the amount of arrears which he was obliged to deposit in Court. As evident from the order itself no specific amount was mentioned in the order; only a period of time within which this amount was to be paid was mentioned leaving the calculations and totalling to the parties. In this situation the appellant deposited a sum of Rs.9,500 which turns out to be short by a sum of Rs.960 according to the correct mathematical calculations. I cannot do/better than to quote from the counter-affidavit of the appellant to show how he fall into the error exposing himself to this attack by the respondent.
Paras. 2, 3, 4, 5 and 6 are as under:- "(2) That, I was directed by this Honourable Court vide order, dated 1-3-1983 to deposit the arrears from 5-4-1980 to 20-2-1983 to be deposited in the Court of Rent Controller Ghotki."
(3) That, I produce the true copy in the lower Court and the Clerk of the Rent Controller prepared the details of arrears to be Rs.9,500 (Rs.Nine thousand five hundred) which I deposited.
(4) That, I am depositing the monthly rent without fail.
(5) That, I am not educated, hence the calculations were not made by me.
(6) That, it is the mistake of the lower Court's Clerk."
8. The learned counsel has argued that the penal consequences should follow if there is a conscious and wilful violation of the order. The appellant should not be visited with the harsh penal consequences for human errors and mathematical miscalculations which according to his affidavit he had entrusted to the officer of the Court by placing the order in the hands of the said officer. There seems to a ring of truth in this story because the officer to whom this money was tendered must have perused this order before accepting the amount of deposit. And it is probable that due to human error and miscalculation he made a mistake in striking a correct figure. The period involved is 5th April, 1980 upto 28th February, 1983, involving not only 34 months but also 25 days of April, 1980. Relying on the observations of Hon'ble Mr. Justice Abdul Kadir Shaikh in a case reported in 1983 SCMR 773 in the case of Major Samad v. Lt.-Col. A. Hussain and another I feel that this case also falls in those class of cases where the default is of a technical nature and amenable to be condoned. The observations of the Hon'ble Court in the above-quoted case may be quoted for ready reference:- "Since it has been shown that petitioner was depositing rent in Court in earlier proceedings, and the amount was being with drawn by respondents, learned counsel for the petitioner submits that at best, the failure on petitioner's part to deposit rent in Court in the case concerned was technical nature and should not entail penalty under subsection (2) of section 16 of the Sind Rented Premises Ordinance, 1979."
9. In the result I would allow this appeal and set aside the order dated 13-10-1982 and the case is remanded back to the learned Rent Controller for decision on merit in accordance with law. There will be no order as to costs.
' As this appeal is being allowed on a technical plea raised by the appellant it is necessary to ensure that minimum prejudice should be caused to the respondent and no further delay should occur causing prejudice to the interest of the respondent. I direct the parties to appear before the learned Rent Controller on 30th April, 1984 on which date the appellant will file his written statement. No notice will be issued by the Rent Controller for this date as this order is being announced in the presence of the counsel for both the parties. After the written statement is filed the Rent Controller will proceed to dispose of the case on merits allowing no adjournment and finalize the proceedings within a short time as far as possible not exceeding six months. R & Ps. of this case to be sent to the Rent Controller, Ghotki, within two weeks. in terms stated above.