' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed against the order of the Rent Controller, dated 4-10-1984 striking off the defence of the appellant and directing him to put the respondent in possession of the premises.
2. The admitted position in the case is that on a joint statement, dated 11-5-1983 filed by the parties before the Rent Controller a tentative rent order was passed on 5th November, 1973. In that order the tenant was directed to deposit future monthly rent before 10th of each succeeding month and arrears of water and conservancy charges from July, 1978 to July, 1983 amounting to Rs.5,865 before 30th November, 1983. It appears that while monthly rent was deposited in accordance with the order of Controller, the arrears of conservancy and water charges were deposited by the appellant on 30-11-1983 instead of before 30-11-1983. On 28-8-1984 respondent's counsel moved an application under section 16(2) of the Sind Rented Premises Ordinance, 1979, alleging non- compliance of the order by the appellant regarding arrears of conservancy and water charges. It appears that the Rent Controller when called for the report of Nazir in this behalf also found that there was default in deposit of rent for the month of August, 1984. Accordingly after hearing the counsel for the parties the Rent Controller on 4th October, 1984 held that as the amount of Rs.5,865 was deposited on 30th November, 1983 instead of before that date, the non-compliance of the order was proved and further found that the respondent also failed to deposit the rent for the month of August, 1984 in time and therefore, struck off the defence of appellant in the case. The explanation offered by the appellant before the Rent Controller that he bona fidely understood the order as. allowing him time to deposit the arrears of water and conservancy charges by 30th November, 1983 was rejected.
3. 1 have heard the learned counsel for the parties at length and after hearing them I am of the view that the order of Rent Controller cannot be maintained. On 5-11-1983 while passing the tentative order it was admitted before the Rent Controller by the respondent that the rent upto December, 1983 has already been deposited by the tenant in a miscellaneous rent case. Therefore the direction of Rent Controller in so far it related to deposit of future monthly rent was operative only from January, 1984. The following order was passed by the Rent Controller on 5-11-1983:-- "Mr. A.S. Hashmi, Advocate for the appellant and Mr. Munir Ahmad, Advocate for the opponent present in person. The relationship of the landlord and the tenant between the parties is admitted.
The rate of "rent is also admitted i.e. Rs.800 p.m. excluding water and conservancy charges.
According to the opponent Advocate he has paid rent upto December, 1983 on the above said rate in the Court in miscellaneous rent case. Learned Advocate for the applicant admits this position.
According to the applicants the water and conservancy charges have not been paid by the opponents w.e.f. July, 1978. Thus the arrears of water and conservancy charges from July, 1978 to July 1983 comes to Rs.5,865 at the rate of Rs.1,173 per annum. The opponent is directed to deposit the above amount in Court before 30th of November, 1983. The opponent is further directed to, deposit future monthly rent w.e.f. 1-1-1984 and the water and conservancy charges in Court regularly before 10th of each succeeding calendar month till final disposal of this case. Matter is adjourned to 4-12-1983."
' At page 257 of the R & P the report of the Nazir on the application for withdrawal of rent filed by the applicant shows that following deposits were made by the appellant/tenant after the tentative rent order:-- {{TABLE}} "Date L 80/83 RC.2248/82 30-11-1983 RR 28222 Amount Rs.5,900 10-12-1983 31728 Rs. 800 9-1-1984 37212 Rs. 800 6-2-1984 42112 Rs. 800 10-2-1984 49693 Rs. 800 5-4-1984 52599 Rs. 800 7-5-1984 64149 Rs. 800 9-6-1984 1251 Rs. 800 5-7-1984 8849 Rs . 2,000 12-8-1984 10796 Rs. 800 2-9-1984 Rs. 800 22-9-1984 14095 Rs.2,400 Total: Rs.17,500" {{TABLE}} ' A perusal of the above report of Nazir will show that the rent for the month of August was deposited on 5-7-1984 and this deposit was for Rs.2,000 which was far in excess of one month's rent. The learned counsel for the appellant contends that the excess amount of Rs.1,200 is the approximate amount of taxes which might be found due and payable against the appellant towards conservancy and water charges. Apart from it there is another deposit made in the month of August which is dated 12th August, 1984 and even it be presumed that the deposit made on 5-7- 1984 was not for the month of August but was towards taxes, the second deposit made on 12th August, 1984 if considered to be the rent for the month of August was well within time as the rent for the month of August, 1984 could be deposited before 10th September, 1984. To that extent the order of the Rent Controller holding the appellant as defaulter in payment of rent for the month of August, 1984, is wholly unjustified and contrary to the evidence which was before him.
4. The next question which arises in this case is whether the deposit of arrears of conservancy and water charges made on 30th November, 1983 could be said to be a default on the part of the tenant in complying with the order, dated 5-11-1983. In his objections, dated 20-9-1984 which were filed to the application for striking off the defence the apponent stated that he has been depositing the rent regularly in Court and there has been no default on his part in compliance of the order, dated 5-11-1983. This statement was supported by an affidavit which was filed subsequently on 27th September, 1984, in which he stated in paragraph 2 that the tentative rent order was passed in his presence and he understood the direction for deposit of the arrears of conservancy and water charges as directing him to deposit the same by 30th November, 1983. In paragraph 8 of the said affidavit he further stated that he understood and believed that the arrears of conservancy and water charges could be deposited by 30th November, 1983 and he also stated that neither he nor his Advocate had an opportunity to read the said order before the deposit was made. The learned counsel for the respondent contends that the order for deposit of rent was passed on 5-11-1983 which required the tenant to make the deposit of arrears of conservancy and water charges before 30th November, 1983, and therefore, the intervening period of about 24 days was quite sufficient both for the counsel and the tenant to inspect the file and obtain certified copy of the order in order to ascertain the exact nature of the tentative rent order. The contention of the learned counsel may be true but mere fact that the tenant or his counsel may be true but mere fact that the tenant or his counsel did not obtain certified copy of the order and continue to believe that they could deposit the amount of rent by a particular date instead of before that date is not sufficient to hold that the alleged non-compliance amounted to a default so as to strike of the defence of tenant in the case. The Court in such circumstances will examine whether a probability existed for entertaining such belief on the part of tenant and if it finds that it was possible that the tenant might have understood the direction of Controller as permitting him to make the deposit by the particular date instead of before that date such non-compliance will not amount to a default. It should be kept in mind the unlike the date for deposit of monthly rent which is fixed in the statute the date for deposit of arrears is to be fixed by the Controller while passing the tenative rent order and, therefore, the possibility that a tenant misunderstood the direction of Rent Controller to deposit the rent before a particular time as allowing him to make the deposit by that date cannot be completely overruled. In the light of the above discussion the statement made in the affidavit of the tenant/appellant that he bona fidely believed that he could deposit rent by 30th November, 1983, is sufficiently supported by his conduct in the case and there is no reason to disbelieve the same. In a number of decided cases such bona fide mistake on the part of a tenant in understanding the direction of Controller regarding deposit of rent has been held to be sufficient ground to condone non-compliance of the direction of Controller. If any authority is needed reference may be made to the cases of Hashim Khan v. Ghulam Nabi 1973 SCMR 112, Sarfraz Khan v.
Abdul Rauf PLD 1969 Kar. 176 and Muhammad Amin v. Mrs. Nasim Begum 1984 CLC 1745. it need not be emphasised here that the non-compliance of the direction of Controller which would result in striking of the defence of a tenant in a rent case must b deliberate and wilful. A default which is caused as a result of bona fide mistake on the part of tenant in understanding the direction of Rent Controller can neither be wilful nor deliberate so as to result in striking of the defence of a tenant in a rent case. The learned counsel for the respondent attempted to distinguish the above cited cases on the ground that in most of these cases the tenant had taken the plea that he acted on the mistaken advice of the counsel whereas in the present case no such case was set up by the appellant before the Rent Controller. I am unable to agree with the contention of the learned counsel. To me there appears to be no difference between a bona fide mistaken advice of a counsel and the bona fide mistake of the party, If a bona fide mistaken advice of a counsel can be a ground to condone the non-compliance of the direction of Controller to deposit rent by a tenant who acted on such advice I am unable to understand why a similar bona fide mistake by the tenant cannot be consider sufficient to condone the non-compliance of such a direction. It is not of much relevant while considering the default that the tenant acted on the advice of his counsel or of his own. In so far a tenant is able to show that he acted honestly and in a bona fide manner to comply with the direction of Rent Controller and the non-compliance resulted on account of such bona fide belief on his part, such non-compliance cannot be treated as a wilful default of the order, whether it be on the mistaken advice of a counsel or a bona fide mistake of the tenant.
' The learned counsel for the respondent relied on the cases of Mushtaq Hussain v. Muhammad Shafi 1979 SCMR 496; Muhammad Ashraf Khan v. Fahmida Khanum PLD 1982 SC 398; Akhtar Jehan Begum v. Muhammad Azam Khan PLD 1983 SC 1 and Sabir All v. Hashmat Ali 1982 CLC 2413 to contend that non-compliance of the order of Controller for deposit of rent on account of #TS##negligence on the part of the counsel or the party cannot be condoned and the consequences provided in the Act for striking off defence could not be avoided. There can be no cavil with the general proposition convassed by the learned counsel. However, in each case where non-compliance of the order of Rent Controller is alleged against the tenant, it has to be seen with reference to the facts and circumstances of that case whether it amounted to a default. None of the above cases cited by the learned counsel are of any assistance to him as they are distinguishable on fact. I accordingly accept this appeal, set aside the order of Rent Controller and sent the case back to the Rent Controller with the direction that the case may be disposed of on merits in accordance with the law.
' As one of the grounds urged in the application for eviction relates to the personal and bona fide requirement of the respondent the Rent Controller shall make every efforts to dispose of this case within six months from the date of receipt of R & P. There will be no order as to costs.