1. ' MUHAMMAD AFZAL ZULLAH, J.--This is tenant's leave to appeal petition; against the dismissal by the High Court, of his Rent First Appeal in a Cantonment Rent Restriction matter. The petitioner has been ordered to be evicted on account of striking off of his defence.
2. ' The learned Rent Controller by order dated 16-8-1988, directed the petitioner to deposit the arrears (and future rent) before 22nd of August, 1988 as follows:-- {{URDU TEXT}} ' (Underlining is ours)
3. ' The petitioner deposited Rs, 26,000 on 22-8-1988. He, however, made an application subsequently for refund of what he described as "amount paid in excess "(URDU TEXT)" namely, Rs, 15,600 from "October 1987 to March 1988". This application, as it appeared from the argument of the learned counsel was in the context that the petitioner allegedly had paid this so called excess amount to the agent of the respondent/landlord. One of the latter's plea in this behalf, however, was that the agent had during this period lost his position as agent; because, the agency had by then terminated. The learned Rent Controller was under an impression, may be genuinely, that the controversy regarding payment, if any made, from October, 1987 to July 1988 was not serious one and it was left to the good sense and good-will of the tenant to make the deposit of the arrears after deducting the payments already made as rent for this period. But, he did not comprehend the full strength of each party's position on this issue and respective opposition thereto.
4. ' After some discussion at the Bar the learned counsel for the respondent/landlord refused to give up the point that payment, if any made, to the agent shall not be treated as payment to the landlord; therefore, the tenant was not permitted to deduct this amount. While the learned counsel for the petitioner insisted that the amount of which refund was claimed was in fact and in law paid towards the landlord's account. And the petitioner's liability in this behalf was discharged as soon as he parted with the money for the benefit of the landlord. In any case the learned counsel contended that the learned Rent Controller, in the exercise of his powers under section 17(8) of the Cantonments Rent Restriction Act 1963; in order to fix the rent approximately, could not have in the circumstances of this case, included this so disputed rent in the arrears to be deposited; even if they were being estimated approximately. We agree with the learned counsel for the petitioner.
5. Firstly, the learned Rent Controller should not have included such a disputed amount in the arrears when a legal question regarding subsistence or otherwise of the aforementioned agency had not been determined. And secondly, if he had, prima fade, come to that conclusion, as an exercise in fixing the approximate rent, then he should not have added the following sentence:-- ' {{URDU TEXT}} ' This or similar other approach by a learned Rent Controller with regard to controversy relating to past payment, could mislead the parties. Relevant provisions being of penal consequences, injustice, in addition to hardship, can result.
6. The present case is no exception in this behalf. Learned counsel for the petitioner rightly argued that the petitioner was made to arrange Rs, 26,000 for deposit within a period of 5 days and if the period of holiday/s is also excluded the time allowed to him was very short. This could be one reason for the deposit being late by one day. If the learned Rent Controller would not have left a serious controversy to be resolved by the parties and would have himself determined the amount already paid as rent, though "approximately", the result would have been different. If for example, he would have directed payment of Rs, 10,400 as arrears by deducting tentatively Rs, 15,600 allegedly paid by the petitioner, he might have been able to make the deposit before the target date. Deduction by the tenant on his own, of a disputed amount, would have exposed him to a serious risk of being trapped into a difficult position.
7. ' For all these reasons it has been argued that the order for deposit being defective the petitioner was not liable to be evicted, as a result of the striking off of his defence, which, for the same reason was illegal. Learned counsel for the respondents tried to meet this reasoning but without any success. He, however, made a passionate plea that the landlord has already suffered on account of delay, therefore, in case leave is to be granted to the petitioner let the petition be converted into appeal and the for further proceedings.
8. ' The position taken by him appears to us to be very reasonable. We, accordingly, convert this petition into appeal and allow the same. The impugned judgment of the High Court as well as the orders of the Rent Controller impugned before the High Court are set aside. The case is remanded to the learned Rent Controller who would proceed to hear the same on merits/issues. Both the learned counsel have agreed that the question of default by the petitioner in making the deposit of the future rent in the context of the order dated 16-8-1988 shall on application to be made by the respondent be, also examined by the learned Rent Controller; and, while deciding the case on merits may also pass any order that he deems fit in connection with the direction for the deposit of the "future rent.
9. ' Learned counsel for the parties were fair to each other and also to the Court in agreeing that the controversy regarding disputed amount allegedly paid by the petitioner/appellant as rent for the period between October 1987 to July 1988, shall also be resolved by the learned Rent Controller when finally deciding the case as a subject-matter of dispute between the parties. Order accordingly.
10. ' It is very relevant in the context for final decision of one of the issues framed by the learned Rent Controller; whether, the petitioner is not a "defaulter". This issue, both the learned counsel, have rightly agreed, cannot be decided without determining the aforementioned controversy. It is clarified that the order dated 16-8-1988 has been held to be defective only with regard to the deposit of the arrears of rent and not with regard to the deposit of "future" rent.
11. ' With the foregoing decision, orders and observations this appeal stands disposed of. The parties shall, as further agreed between the learned counsel, appear before the learned Rent Controller on 29th July, 1989 for further proceedings. The records of the case, wherever may he, shall immediately be transmitted to the learned Rent Controller.