1. ' This First Rent Appeal is directed against the order dated 21-11-1989 passed by the IVth Senior Civil Judge/Rent Controller, Karachi in Rent Case No,878 of 1987 thereby striking off the defence of the appellant and directing him to hand over the possession of the premises in question to the respondent within thirty days from the date of the order.
2. ' The facts leading to the filing of the above appeal are that the respondent is owner and landlord of a building constructed on Plot No,1/396 Shah Faisal Township, Karachi and the appellant is tenant in respect of one of the shops together with fittings and fixings for Kiryana Store, at the monthly rental of Rs,80 per month as per tenancy agreement dated 11-3-1980. The rspondent filed eviction application on the ground of default in payment of rent with effect from June 1987 onward and contravention of the conditions of the tenancy agreement on which the premises was let out to him, as such, the appellant was liable to be evicted. The appellant contested the eviction application. During the pendency of the eviction application, the respondent had filed an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 praying for a direction to deposit the arrears of rent and to deposit monthly rent regularly. The appellant filed objections.
3. ' The Controller allowed the application vide order dated 11-2-1989. The Controller directed the appellant to deposit arrears of rent for the period commencing from June, 1987 to February, 1989 amounting to Rs,16,800 on or before 31-3-1989. The appellant was also directed to deposit monthly rent from 1-3-1989 onward before 10th of every succeeding month till final disposal of the case.
4. ' The respondent filed an application under section 16(2) of the Ordinance stating therein that the appellant deposited Rs,8,600 on 27-3-1989 and failed to comply with the order dated 11-2-1989. He prayed that the defence of the appellant be struck off.
5. The appellant resisted this application by filing objections. The appellant pleaded that he was regularly depositing rent in Misc. Rent Case No,862 of 1989 in Ledger Number 30/87 and thereafter in the aforesaid case vide Ledger Number 69/90.
6. ' The Controller allowed the application as stated in the earlier part of this judgment. Hence the present appeal.
7. ' Mr. Kamaluddin, the learned counsel for the appellant contended that the learned Controller in not allowing the adjustments of the amount of rent already deposited by the appellant in Misc. Rent Case No,862/87.
8. ' On the other hand Mr. Hassan Jafar, the learned counsel for the respondent supported the impugned order.
9. ' I have heard the learned counsel for the parties and perused the impugned order.
10. ' It is common ground that the appellant had deposited Rs,9,884 upto February, 1989 in Misc. Rent Case No,862/1987 and on 27-3-1989 a sum of Rs,8,600 was deposited in the above Rent Case No,878/87. The total amount comes to Rs,18,484 and it has also come on record that the appellant was depositing monthly rent regularly.
11. ' This point was considered by the Hon'ble Supreme Court in the case of Abdullah Ghanghro and another v. Mst. Tahira Begum and another 1988 SCMR 970. The Hon'ble Supreme Court held as follows:- "After hearing the learned counsel for the parties in the light of the record before us we are impressed with the plea raised by the learned counsel for the petitioners that the non-compliance of the order of the Rent Controller, dated 20-4-1982."
12. The decision laid down in the above case is applicable to the facts of the instant case. Following the above principle 1 hold that this amounts to an irregularity rather than penal non-compliance of the order of the Controller dated 11-2-1989.
13. ' As a result of the above discussion the appeal is allowed and the impugned order dated 21-11- 1989 is set aside. The case is remanded to the Controller for further proceeding in accordance with law from the stage when the defence of the appellant was struck off. I would direct the Controller to dispose of the main case in accordance with law within four months from the date of receipt of the judgment R&P. In the circumstances of the case, the parties are directed to hear this own costs.