' This appeal is directed against the order of IInd Rent Controller, Karachi, dated 28-7-1986 whereby he struck off the defence of the appellant and directed him to put the respondent No. 1 in vacant possession of the disputed premises within 60 days.
2. Briefly stated the facts giving rise to this case are that respondent No. 1 Mst. Sara Bai had filed an application under section 13 of West Pakistan Urban Rent Restriction Ordinance against the appellant with respect to a flat of which he was co-owner and the opponent No. 1 was the tenant at Rs.16 per month. The ejectment order was sought on the ground of default in payment of rent.
3. The appellant admitted that he was tenant in the disputed premises but stated that it was not clear as to who was the landlord of the said flat and that several persons were claiming to be its landlord and had served notices upon the appellant to pay the rent. He, therefore, to be on the safe side, applied to the Controller and started depositing rent with him in Rent Case No. 133 of 1971. He has stated that he is, therefore, not a defaulter in the payment of rent.
4. Respondent No. 2 Hakeem Jameel Ahmed Siddique made an application for being joined as a party as he claimed to be co-owner with the respondent No.l. The application was allowed and he was joined as party. His being co-owner of the flat has not been denied by the respondent No.l. The respondent No. 1 has however, filed a suit for pre-emption against the respondent No. 2 who had purchased half share of the property from cousin of the respondent No.l.
5. On 12-4-1976 the learned Controller passed tentative order of deposit of rent under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 which reads as under:- "Heard the Advocates for the parties. Rate of rent is admitted. It is also admitted by both the Advocates that the opponent has deposited the arrears of rent in Court upto and inclusive of March 1976. I, therefore, direct the opponent to deposit the rent for April 1976 before 15th of May, 1976 in Court at the rate of Rs.16 p.m. I further direct the opponent to deposit the future rent in Court before 15th of each calendar month."
6. On 17-12-1976 an application was made by the respondent No. 1 praying for striking of the defence of the appellant as he had committed default in depositing rent in compliance with the order referred to above. The appellant in his reply to the said application submitted that he had deposited the rent in Rent Case No. 133 of 1971 as he already been depositing the rent in that rent case. The question that came up before the learned Controller for consideration was as to whether the deposit of rent in Rent Case No. 133 of 1971 instead of deposit thereof in the present case Rent Case No. 284 of 1976 would amount to a disobedience of the order of the learned Rent Controller or not. After taking into consideration the contentions of both the parties the learned Rent Cotnroller came to the conclusion that the deposit of rent by the appellant in Miscellaneous Rent Case 133 of 1971 instead of Rent Case No. 284 of 1976 amounted to disobedience of and non-compliance with the order of the Rent Controller, dated 12-4-1976 and, therefore, he struck off the defence of the appellant as shown above. I have heard the arguments of Advocates for both the sides and have gone through the relevant record of the case.
7. Mr. Amir Malik, Advocate who appeared for the respondent No.1 referred to the case of Abdullah Ghangro v. Mst. Tahira Begum reported in 1984 CLC 3102 where Ally Madad Shah, J. Had held that where a tenant was depositing rent in miscellaneous application despite of the order passed by the Rent Controller for deposit of rent in the rent case it amounted to non-compliance with the order of the Rent Controller and the defence of the opponent ought to have been struck off. I have perused this ruling. It does not apply to the facts of the present case. In this ruling the deposit of rent alleged to be made in the miscellaneous rent case was not proved whereas it is not so in the present case. The counsel of respondent No. 1 also referred to Messrs M.A. Yahayya v. Messrs Nawab Abdul Malik 1982 SCM R 1160 which was also relied upon in the above-cited ruling. Therein the plea of the tenant that he had been depositing rent in miscellaneous rent case instead of the main rent case in which the tentative order was passed was not accepted and the order striking off the defence was upheld. This ruling is also distinguishable from the present case inasmuch as it was held that the tenants had failed to prove in support of their plea that they had regularly deposited rent in the miscellaneous rent case. Mo-reover, it was also pointed out that the deposit of rent made in miscellaenous rent case was of dates subsequent to the due dates and even if the deposits were considered to be valid the same having been made after due date amounted to disobedience of the order of deposit of tentative rent passed by the Rent Controller. In the present case the facts are quite different. The appellant has produced rent account of Miscellaneous Rent Case No. 133 of 1971 showing that he has been depositing rent regularly therein since 1971. It further shows that even the rent of April 1976 which was ordered to be deposited on or before 15th May, 1976 and for the non-compliance of which the defence has been struck off had ben deposited on 8th May, 1976 i.e. 7 days before the due date. It would, therefore, appear that the appellant has deposited the rent in accordance with the order of the learned Rent Controller though in the miscellaneous rent case and not in the main rent case in which the tentative order was passed. As against this Mr. Ataur Rehman, the learned counsel for the appellant submitted that the appellant was depositing rent in the Court regularly though in a miscellaneous rent case which he himself started depositing about 5 years before the filing of this ejectment case by respondent No. 1, therefore, he cannot be condemned for having been guilty of disobedience of the order of the Rent Controller merely because of a technical mistake of not depositing the rent in the main rent case.
He has also relied upon an unreported decision of Supreme Court in Major (Rtd.) A.S.K. Samad v. Lt.- Col. (Rtd.) A. Hussain and others Civil Appeal No. K-97 of 1982. In this ruling the tenant started depositing rent in a miscellaneous rent case after obtaining permission from the Controller.
Afterwards the landlord filed ejectment case against the tenant and during the pendency of those proceedings the Rent Controller directed the tenant by tentative order to deposit the rent in the Court. The tenant however, continued to deposit rent in miscellaneous rent case and rent was not deposited in ejectment case. An application for striking off his defence was made. The learned Rent Controller held him guilty of non-compliance and struck off his defence. The High Court dismissed the appeal of the tenant. Leave to appeal was granted by the Supreme Court to examine the plea raised by the tenant that as he was depositing the rent though in the miscellaneous rent case thus, there was no failure on his part to deposit the rent in the Court and in any case the failure was only technical in nature and should not have entailed penalty of eviction. The Supreme Court held as follows:- "It is obvious that appellant continued to deposit rent in Court, according to his earlier practice, in Miscellaneous Rent Case No. 953 of 1976, and for the only fault committed by him in depositing rent in that case, rather than in the case concerned, namely, Ejectment Application No. 1823 of 1977, he cannot be condemned for having been guilty of disobedience of the order of the Rent Controller, dated 20-9-1978 so as to entail penalty of his eviction from the demised premises."
8. Reliance was also placed by the appellant's counsel in Moosa v. Khairunnisa First Rent Appeal No. 1080 of 1984 in which in similar circumstance this Court had treated the deposit of rent in miscellaneous rent case as sufficient compliance of the order of deposit of tentative rent when there was no specific direction of deposit of rent in miscellaneous rent case. Reliance was also placed in the case of Muhammad Yousuf v. Maqbool Ahmed reported in 1985 CLC 2862 where Saleem Akhtar, J. Held that the technical default in depositing rent in miscellaneous rent case instead of main ejectment case could not be made a ground for striking off the defence of the tenant unless contumacious conduct or bad faith of tenant was pointed out and proved by landlord.
9. Under these circumstances I am of the clear view that the disputed deposit of rent for the month of April 1976 which was to be made according to the order of the learned Rent Controller by 15-5- 1976 having been made in the miscellaneous rent case on 8-5-1976, there was sufficient compliance of the said tentative order. The effect of not depositing the rent in the main case was at the most a technical defect and could not be regarded as such a serious non-compliance or disobedience of the order of the deposit of tentative rent so as to entail the striking of the defence of the appellant. There is nothing to show that the learned Rent Controller was specific in his directions that the rent should be started to be deposited in the main ejectment case and should be discontinued to be deposited in the miscellaneous rent case. It will not be out of place to mention here that admittedly the respondent No. 1 was only a co-owner and the, other co-owners were disagreeing with him on the management of the property, so much so that he had gone into litigation against one of the co-owners i.e. Respondent No. 2 who had also become a party in this ejectment case and has fallen in line with the appellant.
10. These are the reasons for which I have allowed the appeal today by a short order and set aside the impugned order of the learned Rent Controller and remanded the case to the learned Rent Controller.