' This appeal is directed against the order dated 14-2-1982 by which the four applications made by appellant for striking off defence of the respondent were dismissed.
2. Relevant facts are that the respondent is the tenant of the appellant in respect of seven shops at North Nazimabad at the rate of Rs,2,250 per month. Since the respondent was alleged-to be in arrears and the premises were required by the appellant for his personal use therefore, he applied for ejectment.
3. On t5-11-1980 rent deposit order was passed by the Rent Controller directing the respondent to deposit Rs,39,200 being the arrears of rent for May, 1979 to October, 1981 at the rate of Rs,2,250 per month (minus an adjustment of Rs,1,300) in Court before 15-2-1981. The appellant was not to withdraw .Rs,20,000 from Court till further orders, The more important expression used in the said order was to the following effect:- "The opponent will be entitled for the adjustment of the amount he as already deposited in Court."
' The respondent was also directed to deposit future monthly rent from 10th December, 1980 onwards.
4. On 10-12-1980 respondent filed application for review of order 15-11-1980 to the extent of payment of Rs,20,000 which was alleged to have been paid as advance by the respondent to the appellant.
Respondent had requested that security may be allowed to be furnished for the said amount.
' On 14-2-1981 by consent of parties accordingly the matter was adjourned and period was also extended up to 16-2-1981 for deposit of rent. On 16-2-1981 the arguments were heard on application of review. Period of deposit of Rs,20,000 was extended by Court till 28-2-1981. On 28-2-1981 the review application of the respondent was rejected but time for deposit of Rs,20,000 was extended till 28-2-1981. On the same date Rs,20,000 plus Rs,2,250 were deposited by the respondent.
5. The Rent Controller rejected the application for striking off defence on the ground that he had extended the time for depositing the arrears of rent till 28-2-1981.
' In respect of the dispute that there was stay of deposit of only Rs,20,000 and not of Rs,2,250 the Rent Controller observed that the stay granted on 14,72-1981 was without any mention of the amount and the order of 16-2-1981 was passed in continuation of the order of 14-2-q961 and, therefore, he did not consider that there was any default committed.
6. Mr. S.M. Abbas, learned counsel for the appellant, has submitted that the Rent Controller had no jurisdiction to extend the time which he had granted in respect of the deposit of rent. The submission is not justified, in view of the fact that the Rent Restriction Ordinance allows the Controller to fix the time of the deposit of arrears as the Rent Controller may fix. It is, therefore, the discretion of the Rent Controller as to how much time he allows for deposit of the arrears, And once it is his discretion and the order of deposit is passed by him it appears to be reasonable to conclude that the Rent Controller should have the jurisdiction to extend the time for the deposit if any reasonable' ground is shown to him by the tenant.
7. The counsel then contended that 'at least to the extent of Rs,2,250 there was a clear default inasmuch as the stay granted on 16-2-1981 was in respect of Rs,20,000 only and not in respect of Rs,2,250 which was the amount due to be deposited. The contention of the learned counsel would have been of some force but the difficulty appears to be that The stay granted on 14-2-1981 was without any limit of money and, therefore, it could be possible that in view of the stay granted on 14-2-1981 the respondent might have been under the impression that the stay granted on 16-2-1981 was in continuation of the stay of 14-2-1981 and, therefore, he had the time extended till 28-2-1981 for this purpose. It is correct that the written order of 16-2-1981 clearly mention the stay in respect of Rs,20,000 only, however, the confusion in the' mind of a litigant could not be completely ruled out.
Of course, he. Was represented by a counsel and, therefore, he should have been more cautious but mistakes can be committed by every one and, therefore, a mistake and confusion could be possible in this respect. In any case, there was a clear conflict between the order of stay of 14-2- 1981 ,and the order of stay of 16-2-1981 and, therefore, the benefit should go to the party which is being punished.
7-A. There is another aspect of the case which is probably more important and that is that section 16 of Sind. Rented Premises Ordinance, 1979 requires the Rent Controller to determine the arrears which are deposited but in the present case the Rent Controller did not determine the final amount which was to be deposited by the respondent but allowed the adjustment of the amount already deposited by the respondent from the amount of Rs,39,200 calculated as the arrears, ' The result is that the calculation of the amount which was to be deposited eventually by the respondent was left with the respondent and to that extent there was a clear illegality in the order of the Rent Controller and this illegality made the order as one which was not passed under the provisions of section 16 of Sind Rented Premises Ordinance, 1979. Since the non-compliance of the stay order entails penal consequences of the striking off the defence, therefore, the order passed under section 16 has to be strictly in accordance with the provisions of the said section and in case the departure is made by the Rent Controller then the order looses the sanctity.
8. The view that I have taken finds support from the judgment of this Court reported in PLD 1982 Kar. 108 (110). Consequently, I find that the order passed by the Rent Controller on 4-2-1982 was not in accordance with law and, therefore, its non-compliance could not deserve in the striking off defence of the respondent.
' I may state here that this point had not been taken by the respondent before the Rent Controller but since it is a legal point and I have already decided a case on this basis only recently, therefore, I cannot deviate from the view that I have already taken in F.R.A. 594 of 1982.
9. This appeal is, therefore, found to be without merit and is hereby dismissed. The case would now go back to the Rent Controller for decision on the application filed by the appellant on merits.
' Since it is a matter of 1980 and the appellant has sought the ejectment on the ground of personal need, therefore, I would direct the Rent Controller to decide the case within six months.