1. ' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as 'Ordinance') has been filed by tenants against the order dated 30th September, 1984, whereby VIIIth Sr. Civil Judge and Rent Controller has struck of their defence and allowed six months time to the appellant to vacate the premises. On 6-7-1984 an application under section 15 of the Ordinance was filed against the appellants by Mohammad Hassan landlord on the ground of default from 1-4-1978 to 30-9-1978, for '6 months' amounting to Rs.420. The other grounds were also taken in the rent application. The written statement was filed on 25th July, 1984. The affidavits in evidence were filed by the parties. During the pendency of the rent case the rent account was furnished by landlord and the Rent Controller on 29th March, 1979 passed a tentative rent order whereby directed the appellant to deposit the arrears of rent from April, 1978 to November, 1979, In the same order he allowed the adjustment of amount deposited in the miscellaneous rent case from the above said arrears. The appellants were further directed to continue to deposit the future rent before 15th of every succeeding month. On 31st August, 1983 an application under section 16(2) of the Ordinance was .Moved on behalf of the respondent alleging some default. The objections were filed in which appellants stated that the minors of appellant after the death of their father were not impleaded as party. It has also explained that deceased paid the rent for July, and August simultaneously on 11-2-1982 as 9th was Friday and on 10th there was heavy rain in the city while he was a constant patient of heart. However, he died and his death certificate is on the record. It is stated that all the children are admittedly minors and the rent for the month of August, 1982, was paid in advance.
2. ' I have heard Mr. Rashid Yousif Zai for the appellants, it is contended by the learned counsel that application under section 16(1) of the Ordinance was filed after the death of Ghulam Nabi and at that time his legal heirs were not made as party, and they never knew about the case, therefore, tentative rent order passed by the Rent Controller was not binding upon the appellants.The objections on the application under section 16(2) were filed on 9-4-1984 and at that time the entire evidence had come on the record. He has referred to the cases reported in PLD 1982 Kar. 532; PLD 1985 Kar. 633; PLD 1985 Kar. 47 and submitted that legal heirs were not bound by that order as they were not the party in the case. It is contended that father of the appellant died on 26-6-1983 whereas the application under section 16(2) of the Ordinance was filed after two months of his death whereas appellants were made as party in the year 1984.
3. ' I have also heard Mr. Abdul Qadir, learned counsel for the respondents. He has submitted that non-compliance of the tentative rent order renders the appellant his eviction from the premises.
4. ' During the pendency of these proceedings as it appears from the order of the Rent Controller the original tenant Ghulam Nabi and landlord Mohammad Hassan died and presently legal heirs of both are appellants as well as respondent are parties in this appeal.
5. ' The tentative rent order was passed in 1979 and deceased appellant was regular in making payments unfortunately he died on 26-6-1983. In the application under section 16(2) of the Ordinance the default as alleged as follows:-
(1) The deceased failed to deposit the rent of July, 1982, before 10th August, 1982.
(2) He failed to deposit rent of August, 1982 before 10th of September, 1982.
(3) The deceased failed to deposit the rent from December, 1982 with the Nazir.
(4) The deceased failed to deposit the rent for the months of May, 1983 June, 1983 with the Nazir.
6. ' The Rent Controller after perusing the ledger and other record has come to the conclusion that under receipt No.4530, dated 11-7-1982 only Rs.70 were deposited thereafter on 19-9-1982 under receipt No.17659 an amount of Rs.140 was deposited therefore the appellant committed default in making payment as he was supposed to deposit the rent of August and September, 1982, before 10th of every month in terms of the tentative rent order. It is also in the order that during the pendency of application the appellants filed an application on behalf of widow of the deceased for condonation of delay in depositing of rent for the months of July to September, on the grounds that her husband expired on 26-6-1983 and at that time she was in 'Idat'. Period as she cannot deposit the rent in time. The Rent Controller has not considered this application and struck of their defence.
7. ' The relationship is admitted. The rate of rent is not disputed. It is also on the record that since in 1979 when tentative rent order was passed the rent was being deposited regularly by deceased Ghulam Nabi. He never committed default.The death of Ghulam Nabi/tenant on 26-6-1983 is not disputed. The late deposit is after his death. It is also a matter of record that when application under section 16(2) of the Ordinance was filed on 31-8-1983 the legal heirs of the deceased were not brought on the record in the main rent case. However, in the year 1984 in the objections it is mentioned in Para No.4 that minors of the deceased landlord have not been impleaded as party to the proceedings legally. The proper explanation was given by the widow for not depositing the rent in time appears to be reasonable. However, actually the rent has been paid by the legal heirs.
8. ' Looking to all the circumstances of the case, I am of the view that no wilful default has been committed directly. The circumstances were beyond the control of the legal heirs to deposit the rent in time and that they were made party when these proceedings under section 16(1) started therefore in interest of justice and fairness the discretion could have been exercised in favour of the appellants when in fact there is no default but there is some delay in payment. I, therefore, allow the appeal and set aside the order of the Rent Controller and remand the case. As I have already stated that entire evidence of the parties have already been taken. The Rent Controller to proceed with the case and decide it on merits according to law.