1. ' This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as Ordinance) has been filed against the order dated 23-11-1983 of Xth Senior Civil Judge and Rent Controller, Karachi whereby he struck of the defence of the appellant and allowed the rent application and directed the appellant to hand over the vacant possession of the premises within three months to the respondent.
2. ' The brief facts are that in August, 1977 respondent filed Rent Case No. 2678 of 1977 against the appellant under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance 1959 on the ground of default in payment of rent from January 1977 to April 1977. Appellant filed written statement on 6-12-1977 in which he stated that no default has been committed.
3. ' On 18-3-1978 respondent filed rent account showing arrears from May, 1977 to February, 1978 amounting to Rs.3,250. The Rent Controller on 30-10-1978 passed fo11owing tentative rent order: "The parties and advocates are called absent. It is 8-30 a.m. The applicant has filed rent account statement claiming rent w.e.f. May, 1977 @ Rs.250 p.m. The opponent has not specifically denied the payment of rent. Hence, I hold tentatively that rent is due w.e.f. May, 1977 at 250 p.m. Therefore, I direct the opponent to deposit rent arrears Rs.4,250 before 15th February, 1978 as the amount is heavy; hence reasonable time is fixed. The opponent should also deposit rent of each current month @ 250 p.m. Before 15th of each subsequent month till disposal of case.
4. ' On the same day advocate for the respondent filed review application. The same was also dismissed by the Rent Controller on 13th December, 1982. During pendency of rent case the respondent/ landlord instead of filing any appeal before the High Court under section 21 of the Ordinance moved a review application under section 114 of the C.P.C. Read with Order XLVII, Rule 1, C.P.C. The same was dismissed. Being aggrieved the respondent/landlord filed 1st Rent Appeal No. 334 of 1981 in the High Court. The appeal was dismissed and Rent Controller was directed by judgment dated 10-10-1982 to dispose of respondent's ejectment application as well as other applications pending before him on merits in accordance with law within 3 months, from the order.
5. ' On 29-11-1982 respondent filed an application under section 16(2) of the Ordinance for striking off the defence of the appellant. This application was allowed and ejectment order has been passed which is impugned.
6. ' I have heard Mr. Sharnsuddin for the appellant. He raised the following contentions:--
(i) The ex parte order passed by the Rent Controller is contrary to the facts, therefore, not binding on the appellant.
(ii) The appellant was not in arrears as he was paying rent regularly since three decade in the account of respondent.
(iii) The application under section 16(2) has been filed after 4 years of the passing of the tentative rent order and during that period appellant has not committed any default for future rent.
(iv) The Rent Controller without applying his mind and not complying with the order of the High Court passed in 1st Rent Appeal No. 334 of 1981 disposed of this appeal on technical grounds contrary to the directions as given in the judgment.
7. ' On the other hand Mr. Sabihuddin Ahmed contended that mode of payment by depositing rent amount in the bank has not been approved by the superior Courts. He has referred to the cases reported in 1985 SCMR 170, PLD 1981 Kar. 739, 1984 CLC 1341. He has also submitted that in case of non-compliance of tentative rent order the tenant is liable to be ejected. He has referred to a case reported in PLD 1983 SC 1. It is argued that late filing of application under section 16(1) will have no effect on the merit. He has relied on a case reported in 1982 SC MR 33. On the point of striking off defence he has referred to the cases reported in PLD 1983 Kar. 425, 1982 CLC 1298.
8. ' Now I proceed to discuss the relevant law and the facts of the present case. This case has a long history and is pending since 1977 before the Rent Controller. The written statement was filed on 6- 12-1977 but in spite of that the Rent Controller did not proceed with the case but passed tentative rent order on 30-10-1978. Even he did not record the evidence till the present order was passed. The Rent Controller was specifically directed by this Court while disposing of First Rent Appeal No. 334 of 1981 that he should dispose of the rent case on merits within three months. In spite of that after about a year he passed the present order rather than dispose of rent case on merits.
9. ' As stated above this rent case was filed on 18-8-1977 written statement was filed on 22-12-1977 in which appellant pleaded that there was no default in payment of rent including the month of November, 1977. Regarding notice, dated 13-4-1977 he stated that he was in jail and did not receive such notice. In his written statement he has taken plea that agreed mode of payment of rent was that he used to deposit rent for several months together in the account of respondent even in advance. The Rent Controller under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 obliged to pass tentative rent order on the first date of hearing or as soon as possible before issues are framed. In the present case the tentative rent order was passed on 30- 10-1978 and issues were also incorporated in the same order. This order after lapse of five years without assigning any reason for delay is clearly against the spirit of law. This tentative rent order was passed at 8-30 a.m. When the advocates of both the parties were absent. It is also stated that advocate for the landlord furnished rent account by way of an application on 18-3-1978 in which he claimed arrears but in spite of that the impugned order was passed on 30th October, 1978 and reasons for such delay are not given. On the other hand, advocate for appellant appeared on the same day before the Rent Controller and requested to review the order in the light of the circumstances of the case. Not only this but the review application of 1978 was dismissed after lapse of 4 years. The Rent Controller could have given an opportunity to place real facts of the case before him. I may further add that the application under section 16(2) of the Ordinance was filed on 29-11-1982 and it was finally disposed of by an order, dated 23rd November, 1983. The Rent Controller while disposing of these applications allowed the appellant to examine the officer to the Grindlays Bank, New Town Branch, Karachi who produced the statement of accounts of respondent which shows that appellant was depositing rent from October, 1977 and towards in account of respondent. The statement of the account furnished by the appellant before the Rent Controller alongwith his application stated that the appellant had deposited Rs.4,500 in the account of the respondent from 13-2-1978 to 8-11-1979 which shows that at the passing of the tentative rent order in October, 1979 the appellant has already paid the rent. This factual position has also been stated in the order of Rent Controller passed on 13-12-1982 whereby he dismissed the application of the appellant for the review of the rent order. I have gone through the authorities cited by the learned counsel. It is a settled law that non-compliance of tentative rent order renders the tenant liable to be evicted. I like to refer section 16(1) of the Ordinance 'where it has been stated that Rent Controller after summary inquiry as he may deem fit to make and determine the arrears of rent due and then pass the order'. Under the old law he was not to hold inquiry before the passing of the order. But in the interest of justice before the passing of the order Rent Controller should consider all the aspect of the case. In case of Mst. Rukhsana Begum v. Mst. Farida reported in 1982 CLC 1298 it has been held that order of the deposit passed under section 13(6) of the Ordinance, 1959 to be treated as to have been passed under section 16(2) of the Ordinance, 1979. In this case the tentative rent order was passed before the promulgation of Sind Rented Premises Ordinance, 1979. I refer to a case of Sh. Maqbool Ahmed v. Muhammad Akhtar Ali reported in PLD 1978 Lah. 258 it has been held as under:-- "The answer would depend upon the circumstances of each case.
10. ' If, for example, despite the order of the Rent Controller for deposit, without any justifiable excuse, the tender is made to the landlord with a hope to gain an advantage on refusal of landlord that might not be considered as compliance of the legal requirement. But in another case instead of making a deposit with the Rent Controller, a bona fide deposit in wrong forum might be considered as Valid. See Sarfaraz Khan v. Muhammad Abdul Rauf PLD 1969 Kar. 176 at p.
182. Similarly reliance on an earlier undisputed deposit with the landlord himself, instead of making fresh deposit might be considered as a good plea against the very order of deposit under section 13(6). See Mian Muhammad Abdullah v . Sheikh Nawab Din 1971 SCMR 346. In yet another case, for example, notwithstanding there being an order of deposit with the Rent Controller, the parties agree on arrangement of tender and its acceptance out of Court, it would be doubtful whether the landlord would be able, subsequently, to invoke section 13(6) for seeking striking off the defence of the tenant. See Syed Masood Hussain and others v. Muhammad Saeed Khan and others PLD 1965 (W.P.) Lah.
11. And in a case Rent Controller himself, instead of directing "deposit" orders for the "payment" as an alternative to the "deposit" the payment instead of deposit might not be considered as non- compliance with section 13(6). See Zahurul Hasan & Brothers v. Abdul Hussain and another PLD 1977 Kar. 252".
11. ' I also refer to a case of S.V. Mohajir v. Mst. Asha Jamil reported in PLD 1983 Kar. 849 where it has been observed as under:-- "It is for two years that the landlady/respondent was sleeping over the default or even if she did not know about default yet from the circumstances that she has withdrawn the amount so deposited by the appellant, it appears that the default is not wilful one and it should be condoned."
12. ' The facts of the present case are identical. In a case of Muhammad Wall Khan v. Dr. Javid All Khan and 5 others reported in PLD 1983 Kar. 425 observed as under:- "For instance the tenant might have in his statement of account referred to certain payments made by him to the landlord, which payment is accepted by the landlord before or at the time the tentative order for rent is passed and in respect of the Rent Controller passes an order for deposit of rent without giving adjustment of the amount admittedly received by the landlord."
13. ' The circumstances of the present case are that the impugned order of the Rent Controller directing the appellant to deposit arrears is not beyond the circumstances of the case as appellant already used to deposit the rent in the account of rent according to their previous agreement and he was in arrears as mentioned in the order. This fact was considered by the Rent Controller. Though all the relevant documents were produced and evidence was taken. The order of the Rent Controller, therefore, is not just and proper. I, therefore, set aside the impugned order and remand the case back. The rent case should proceed and be decided according to law.