1. ' The appellant has challenged the order passed by the learned Controller under section 16 (2) of the Sindh Rented Premises Ordinance ejecting him from the flat in dispute. The building in which the flat is situated was owned by one Ikramullah who was the landlord. He served a notice dated 22-4-1987 intimating the appellant that he had gifted this property to the respondent. The respondent also served notice dated 22-4-1987 intimating the transfer by gift. The appellant sent a reply dated 10-5-1987 demanding declaration of gift which was referred in the notice. He, however, remitted the rent for the month of April to the respondent. It seems that the declaration of gift was never supplied to the appellant nor any reply was received by him in that regard, so he started remitting rent to Ikramullah through cheque. In this manner he remitted rent for the months of May to August, 1987 which were returned by Ikramullah by his letter dated 24-9-1987. The appellant then sent a money order dated 28-9-1987 for Rs,1,800. In the post script note while acknowledging the said letter with cheques it was also stated that although flat is alleged to have been gifted to the appellant, according to his information till the time of writing the note, the flat had not been transferred in the records of the society in favour of Seema Safdar, the respondent. He, therefore, stated that in order to comply with the legal requirement he has remitted the rent to him. This money order was refused and the appellant then filed an application under section 10 (3) of the Sindh Rented Premises Ordinance on 10-10-1987 for deposit of rent in the joint names of Ikramullah and Seema Safdar. After the order was passed he started depositing rent in that miscellaneous rent case.
2. ' The respondent filed ejectment case on 30-9-1987 on the ground of default in payment of rent from May to August, 1987. The appellant filed his written statement pleading all the aforestated facts and stated that the declaration of gift was never supplied to him. The parties filed their affidavits of evidence and the respondent appeared for cross-examination on 10-8-1989 and filed application under section 16 (I). The appellant's counsel waived notice and the case was fixed for hearing on 28-8-1989. On this date the respondent was cross-examined and the learned Controller passed order under section 16(1) whereby the appellant was directed to deposit rent at Rs,450 P.M. "in this Court." Thereafter an application under section 16 (2) was filed by the respondent on 11-12- 1989 alleging that the rent has not been deposited as ordered. The appellant replied that order under section 16 (I) was not within the knowledge of his counsel or himself as the application was naver argued and order had been passed without hearing him. He further stated that under bona fide impression he had been regularly depositing rent in the miscellaneous rent case. The learned Controller holding that default has been committed in depositing the rent ordered for the ejectment.
3. ' Mr. K.A. Wahab the learned counsel for the appellant has contended that the order dated 28-8- 1988 was passed (which has been written on the application) without hearing appellant's counsel.
4. This fact has been controverted and it seems that as the case was fixed for cross-examination as well as for hearing the application, the learned Controller passed the order on the same day.
5. ' It therefore, cannot be said that the order had been passed behind the back of the appellant.
6. Mr. Wahab then contended that in the facts and circumstances of the case the default, if any, will amount to a technical default and does not warrant for striking off the defence. Mr. Abdul Qadir the learned counsel for the respondent has contended that from the facts and circumstances the appellant's e conduct does not demonstrate good faith and therefore, defence was rightly struck off. There is hardly any dispute about the facts of the case except that the learned counsel differ on its interpretations. The same set of facts is being treated as a technical default without any mala fides whereas the'other party considers it a mala fide action. The analysis of facts will show that when the respondent and Ikramullah served notice dated 27-4-1987 the appellant had immediately replied and also demanded copy of the declaration of gift which had been referred in the said notices. Shaikh Ikramullah had stated that he had transferred the property by way of gift which was confirmed by declaration of gift. The appellant had During evidence the respondent had filed the declaration of gift according to which it was made on 16-5-1987. 'Therefore, at the time when notice was issued by the respondent and Ikramullah the declaration of gift was not in D existence and it seems to have been prepared after the letter was written by the appellant dated 14-5-1987. From these facts it can be deduced that the conduct of the appellant was of a cautious man. He may have been overcautious but surely rnala fides cannot be attributed.
7. ' Mr. Abdul Qadir the learned counsel contended that as the'rent for the month of April was paid to the respondent, the appellant had acted upon the notice but subsequently resiled from this position which he was not entitled to do. As discussed above in the facts and circumstances of the case the first remittance to the respondent proves his bona fides and thereafter since his queries were not satisfied he reverted back to Ikramullah again. The respondent or Ikramullah could have asked him to examine the declaration of gift and the matter would have ended there, but they remained completely silent over it creating more suspicions and confusion in his mind.
8. ' The learned counsel for the respondent then contended that the order under section 16(I),was passed directing the appellant to ,deposit rent in this Court" which amounted to in the case in which order had been ;passed. Normally this should have been the interpretation of this order but for the purposes of this case or any other case one has to see all the attending circumstances of the case. The appellant had been depositing rent in the same Court but in a different case Where he had joined Ikramullah and respondent as opponents. There is no dispute between Ikramullah and respondent about the ownership of the property therefore, it will not be justified to allege that in order to delay or cause inconvencience to the respondent, the appellant had intentionally deposited the rent in the miscellaneous rent case. The learned counsel then contended that rent was deposited in the name of both the respondents. This was done by way of abundant caution and as observed earlier this would not have caused any inconvenience to the respondent.
9. ' Mr. K.A. Wahab has referred to Mohammad Yousuf v. Maqbool Ahmad 1985 CLC 2859. In fact both the learned counsel have referred to this judgment. In this case it was observed that where due to mistake instead of depositing rent in the case in which direction had been given it was deposited in miscellaneous rent case between the same parties, it does not prove contumacious conduct or mala fide intention and therefore on such technical default defence should not be struck off. In Major (Rtd.) Samad v. Lt.-Col. (Rtd.) Altaf Hussain 1987 SCMR 1013 the same view has been upheld.
10. It was again considered in Ismail v. Sara Bai and another 1987 CLC 1393 where similar view has been expressed.
11. ' Mr. Wahl) also referred to Mahboob Elahi v. Saqib Mahmood Riaz 1990 SCMR 1688. In this case the tenant was ordered to deposit rent under section 13 (6) of the Urban Rent Restriction Ordinance in Court. Default was committed as the tenant pleaded that he was not aware of the order due to illness of his Advocate and that he had changed the Advocate. However, the High Court held that the tenant had neglected in depositing rent. In this case the rent had been remitted to the landlord before the date of deposit therefore, the question arose whether in such circumstances the payment of rent by the appellant (tenant) through money order was a proper compliance with the order made. Under section 13 (6) of the Ordinance and it was observed as follows:- "Undoubtedly, the appellant had parted with the amount before the specified date. He had sent the rent through money orders on 11-3-1987 and 2-4-1987. The appellant had to deposit the rent for the month of March before 15th of April. He had sent the rent before expiry of the specified date for deposit of the rent. This fact would show his intention to make the deposit in time. Such tender, in the circumstances, amounts to deposit in the performance of his obligation under section 13 (6) of the Ordinance."
12. ' Finally it was observed that-- "appellant could not be adjudged as defaulter and penalised for non-compliance of order under section 13 (6) of the Ordinance."
13. ' The observations of the Supreme Court fully apply to the facts of this case.
14. ' The learned counsel for the respondent has relied on 1987 CLC 1984 which has also been relied by the learned Controller, but in view of the consensus of the judgments and the observation of the Supreme Court, this judgment will not apply to the facts of the present case. I, therefore, allow the appeal, set aside the impugned order and remand the case to the Controller for hearing on merits.