ALI HUSSAIN QAZILBASH, J: --This is an appeal by leave from the order of a learned Single Judge of the Sindh High Court, dated 2-10-1986.
2. The facts are that shops Nos.2 and 3 on ground-floor of commercial plot bearing No.36, Block No.6, P.E.C.H.S., Karachi, were taken on rent by the appellant for eleven months under an agreement dated 1st November, 1980 for running a hotel on rent of , RsJ,000 per month including water charges. The appellant paid Rs.11,000 as advance deposit. The respondent (now deceased and represented by his legal representatives) was residing with his family on the first --floor. On taking possession, the appellant started his business therein under the name and style "Madina Hotel" as proprietor.
3. After the expiry of the lease the appellant remained in possession of the suit premises by mutual consent and it was in August, 1982 when the deceased respondent demanded double rent instead of reasonable increase and as such the appellant remitted the rent of August, 1982 by money order which was first refused but then accepted by hand as per receipt dated 8-8-1982.
4. The appellant apprehending mischief at the hands of the respondent then filed an application on 23-8-1982 in Rent Case No.3398 of 1982 in the Court of the Rent Controller, Karachi, and started depositing rent from August, 1982. Notice of the same was sent to the respondent on 24-8-1982.
5. It was on the 1st of December, 1982 that the respondent submitted an application under section 15 of the Sindh Rented Premises Ordinance, 1979, for the ejectment of the appellant on the grounds of default in the payment of rent, impairing the utility of the premises, creating nuisance and subletting. In the written statement filed by the appellant, all the allegations were refuted. On 10-5- 1983 the respondent submitted an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979, with a prayer that the appellant be directed to deposit Rs.9,000 as arrears of rent from September, 1982 to 30-4-1983. This application was replied to on 29-1-1984 alleging therein that the appellant had sent rent to the respondent and on its refusal he had been depositing the same in the Court of the Rent Controller through Miscellaneous Rent Case No.3398 of 1982 under Ledger No.1033 of 1981.
6. On 2-5-1984 the Rent Controller passed the following order:- " The relationship of landlord and the tenant between the parties is admitted, so also the rate of rent. The applicant's case is that the opponent has failed to pay rent from September, 1982 to April,1983.
On the other hand the contention of the opponent is that he has been depositing the rent in the Court in M.R.C.No.1033 of 1981. The opponent was directed on 29-1-1984 by this Court to produce the receipts of rent deposited in M.R.C. But he failed to comply with the directions of this Court and did not produce any receipt. He has remained absent since last 10/12 dates of Hgs:. Since the opponent has failed to produce the proof of deposits, in spite of more than enough opportunities given to him, there is no other alternative left before me, except to pass the orders as per existing record.
I therefore, tentatively calculate the arrears of rent outstanding against the opponent as under:- (1)Arrears w.e.f. September, 1982 to 30th April, 1984 i.e. For 20 months at the rate of Rs.1,000 comes to Rs.20,000.
It is hereby ordered that the opponent shall deposit the above arrears of rent in the Court before 31st of May 1984. The opponent is further directed to deposit future monthly rent at the same rate in this Court before 10th of each succeeding month till final disposal of this case.
If the opponent has deposited any amount in Court in this case, through M.R.C., that amount shall be adjusted towards the above arrears and balance of arrears shall be deposited by the opponent in the Court.
Announced in open Court."
7. The respondent then submitted applications on 9-7-1984 and 31-7-1984 under section 16(2) of the Ordinance for striking off the defence of the appellant because he has failed to comply with the order of the Court, which were replied to by the appellant, wherein the grounds taken in the written statement were reiterated and the stand taken by him was that he had been regularly depositing rent of the suit premises before the Rent Controller in Case No.3398 of 1982 and, as such he has complied with the order of the Court. The Rent Controller, however, in his elaborate order dated 25- 9-1984 struck off the defence of the appellant, ordered his ejectment from the suit premises and directed that the possession of the same should be delivered to the respondent one month after the date of announcement of the order. The appeal filed by the appellant in the High Court ,also failed.
8. Leave was granted in this case to consider whether the order of the Rent Controller dated 2-5- 1984 for deposit of rent was duly complied with when the arrears of rent and current rent were deposited by the appellant in Miscellaneous Rent Case No.3398 of 1982 as proprietor of Madina Hotel.
9. Messrs Ali Akbar and Fazl-e-Ghani Khan, Advocates, were heard for and against the appeal. The order of the Rent Controller striking off the defence of the appellant and his ejectment from the demised premises and the order of the learned Single Judge, in the facts and circumstances of the case, need interference. It seems that some dispute about the tenancy arose between the parties.
In order to safeguard his interest and business the appellant approached the Rent Controller, Karachi, and started depositing rent of the premises from 5-8-1982 under section 10(3) of the Sindh Rented Premises Ordinance, 1979, through Miscellaneous Rent Case No.3398 of 1982 under Ledger No.1033 of 1981. The notice of this deposit was issued to the respondent, Khawaja Abdul Aziz (now represented by his legal representatives), who was living in the upper portion of the suit property.
On the 1st of December, 1982 an application for the ejectment of the appellant on the ground of default in payment of rent, etc., was filed. After the receipt of the written statement, on 2-5-1984 an order of deposit of rent was passed and the appellant was directed to deposit the arrears of rent amounting to Rs.20,000 from September, 1982 to 30th April, 1984 on or before the 31st of May, 1984.
The perusal of the record shows that even before 2-5-1984 the appellant had deposited Rs.23,000 through Miscellaneous Rent Case No.3398 of 1982 which in fact was more than the tentative rent determined by the Court and this fact was taken note of by the Rent Controller while passing the order dated 2-5-1984. The record further shows that pursuant to the concluding portion of the order dated 2-5-1984, every genuine effort was made by the appellant to get the amount so paid through Miscellaneous Rent Case No3398 of 1982 deposited in the present case but his efforts were frustrated either by the stand taken by the respondent or the failure of the Rent Controller to pass an order for the transfer of the said amount into the account of the present case. In such a situation it could hardly be said that the appellant did not comply with the order of the deposit of the rent as contemplated under order dated 2-5-1984. Reliance in this respect is placed on an unreported judgment of this Court in Civil Petitions Nos. K-15 and K-16 of 1984, converted into appeals, dated 31-1-1984, wherein it was held:-- "Since petitioners were out of pocket of the amount of rent payable by them which they actually deposited in court with the intention that the landlord may withdraw the amount, if he so desires, and there is no complaint that the landlord could not do so, petitioners cannot be condemned as guilty of not depositing rent in Court. They had actually deposited the rent in Court but made the mistake of depositing in one case and not the other, and this amounts to an irregularity rather than penal non-compliance of the order of the Rent Controller dated 20-4-1984."
The various authorities cited at the bar by the learned counsel for the respondent are inapplicable to the facts of the present case.
10. The learned counsel for the respondent has raised the objection that his client had no concern with the proprietor of Madina Hotel and the rent deposited by the proprietor of Madina Hotel was from a person other than Malik Aman, his tenant. The deposit, if any, therefore, was not by his tenant and thus he is a defaulter in the payment of rent and liable to ejectment. This objection has no legs to stand upon in that the rent had been deposited towards the very demised property and further the very application for the ejectment of the appellant has destroyed this objection inasmuch as the application for ejectment was filed by the respondent against 'Malik Aman s/o Shah Zaman, Muslim, adult, Madina Hotel, 36-E, Block 6; P.E.C.H.S., Karachi'. In any case it is a very flimsy objection which cannot be formed the basis of striking off the defence.
11. The view, therefore, we take in the matter is that the appeal must succeed. The order of the Rent Controller, dated 25-9-1984, and that of the learned Judge of the High Court, dated 2-10-1986, are, therefore, set aside but with no order as to costs.