1. ' By this appeal, the appellant has challenged the order passed by the learned Controller under section 16 of the Sind Rented Premises Ordinance, whereby his defence has been struck off. There seems to be a serious long drawn dispute between the parties, as the appellant has been depositing rent in Court from the year 1973. After the ejectment application was filed an order, dated 1-4-1980 was passed for deposit of rent in the following terms:- "I pass this rent order tentatively and direct the opponent (appellant) to deposit future monthly rent @ Rs.115 p.m. in Court commencing from April, 1980 on or before 10th of each succeeding month i.e. the rent of April, 1980 and so on."
2. ' Thereafter, the parties completed their evidence and the appellant was cross-examined on 13-1- 1983. On that date the respondent filed an application under section 16(2) stating that the appellant has committed default, and therefore, his defence should be struck off. The appellant filed objection to this application, and ultimately by the impugned order the defence has been struck off.
3. ' From the order of the learned Controller, it seems that he has taken pains to look into the report of the Nazir in respect of the deposits made in another miscellaneous rent case, and came to the conclusion that default has been committed by the appellant.
4. ' Mr. Ch. Nazir Ahmad the learned counsel for the appellant contended that the order of the learned Controller for deposit of rent, dated 1-4-1980 is illegal and, therefore, the appellant cannot be penalised for its non-compliance. The illegality pointed out by the learned counsel is that the learned Controller without taking note of the receipts and documents which were before him passed the order for deposit of rent from the month of April, 1980, although advance rent has been deposited with the Court in miscellaneous rent proceedings. The objection of the learned counsel is not justified, because before the order was passed the parties were directed to submit their statement of account, and the appellant submitted as follows:- "rent due upto date has been deposited in Court, in Miscellaneous Application No. 4384 of 1975 with permission of the Court, and there is no arrears of rent or outstanding and due from the opponent to the applicant. The last balance stands Nil."
5. ' It was on the basis of this statement that the learned Controller did not investigate into the questions how much rent has been deposited by the appellant. In fact this statement though very vaguely worded speaks only of deposits of rent upto March, 1980 and does not speak of any advance rent, which had been deposited, and as the appellant does not seem to have pressed before the Controller that the rent was deposited in advance, it is too late to challenge to the legality of the order on the ground that this plea has not been considered.
6. ' The next contention of the learned counsel is that the application filed by the respondent under section 16(2) was vague as specific default has not been stated. The application does not specify or give particulars of the defaults. It has become a practice that such applications are filed before the Controller and are even entertained and decided after notice to the other side. If the facts stated in the application are established the learned Controller will strike off the defence, therefore, whenever any default is pleaded it must be specifically stated and identified with particularity otherwise there is every likelihood that the other party may be taken by surprise and may not have even a chance to put a proper reply to the defaults, which may have been committed by him. It is always possible that a tenant may have committed default in complying with the order for reasons beyond his control, or due to sufficient cause, which he may be able to explain and if accepted default may be condoned. When the tenant has got a right to defend, it will be rather unjust to face him with an application without giving any particulars of default. The practice of filing such applications is highly declarable and should be discouraged. In the present case although such an objection was raised, the report of the Nazir was called, and the appellant has to file objection to explain the deposit made by him, and, therefore, I would not like to enter into this question, but it should be a guiding principle that the Controller should see that specific default has been pleaded in the application, because on this application, the entire case can be disposed of summarily.
7. ' Mr. Ch. Nazir Ahmad the learned counsel contended that the appellant has been depositing rent from the year 1973 and if all the rent deposited in three cases are properly accounted, the appellant has not committed any default. It may be mentioned that under the orders of this Court, the Nazir has prepared a detailed statement which is of great use for removing the confusion in the deposits. The learned counsel for the appellant has referred to the deposit case on 6-2-1982 for Rs.460 which according to him was an advance rent from March to June, 1980. Therefore, another deposit was on 8-5-1980 for Rs.345. This would represent the rent upto September. The only difficulty faced by the appellant is that after the order, dated 1-4-1980 was passed instead of depositing the rent in the ejectment case, as usual he deposited it in Miscellaneous Rent Case No. 4384/75. Therefore, if this technical objection is allowed to be taken, there is surely a default, because the appellant has not deposited the rent in the ejectment case. I am not inclined to strike off the defence on such highly technical objection, that the rent though purported to be for the same period, between the same parties has been deposited in another proceedings between the same parties in the same Court. The learned counsel has explained that had there been a specific direction by the Controller to deposit in the ejectment case, the appellant would not have deposited it in the Miscellanous Rent Application. This mistake seems to be a bona fide mistake arising from misunderstanding of the order. Now taking this amount as rent for September, 1980, thereafter the appellant seems to have deposited the rent in the ejectment case. In order to find out whether default has been committed by the appellant has to take into account the deposit made from the year, 1973, because there may be certain adjustments likely to be made from time to time. The matter was rise for argument and at this stage of enquiry has to be made to ascertain the default in deposit of rent, the proper course for the learned Controller is to decide this aspect of the case alongwith the main case. Unless the entire accounting is done, it is difficult to establish that the appellant has defaulted. The learned counsel for the respondent contended that in view of the admission made by the appellant default has been committed. The deposit made by the appellant from time to time is a matter of record and calculation. A wrong admission on the part of a witness cannot change the record. In this view of the matter the learned Controller should not have struck off the defence. The proceedings under section 16(2) being summary in nature, if the matter is fixed for final argument and in order to ascertain the default in payment of rent or deposit of rent an exhaustive inquiry and accounting Is required, then the proper course is to decide the question of default in deposit alongwith the main case.
8. ' The appeal is, therefore, allowed. The case is remanded and the learned Controller should decide the application under section 16(2) alongwith the main case.