' NAIMUDDIN, J.---This appeal, by leave is from the judgment of the High Court of Sindh, Karachi, dated 29th October, 1985, passed in F.R.A. No,123 of 1985, whereby appellants appeal against the order of the Controller was dismissed.
2. The facts giving rise to this appeal, briefly stated, are that the respondent filed an application for ejectment of the appellants on the ground of default in payment of the rent etc. During the pendency of the proceedings the Controller, on an application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 passed a tentative rent order on 21-2-1984. The order reads as follows: "Parties' counsel are present. They argued on application under section 16(1) of S.R.P.O. Order passed thereon. So, it is ordered that the opponent should withdraw the amount of Rs,975 (Rupees nine hundred seventy-five) only from the Misc. RA. No,35/72 and deposit the arrears rent of Rs,975 in this R.A. Within one (1) month of the passing of this order and future rent at Rs,15 p.m. Be deposited in Court from the month of February, 1984, and onward on or before the tenth (10th) of every succeeding month i,e, the rent of the month of February, 1982, shall be deposited on or before 10th March, 1984 and so on so far the applicants shall not withdraw amount of the arrears of rent of Rs,975 if he had already withdrawn any amount in the Misc.R.A.For the above period. Hg.22-3-1984 for affidavit in evidence of the applicant side."
3. Thereafter, the respondent filed an application for striking off the defence of the appellant on the ground that he has failed to deposit the arrear of the rent and current rent as ordered by that Court on 20-2-1984. The appellant filed objection to the application. However, the Controller by the order dated 16-1-1985 accepted the application, struck off the defence and ordered his eviction from the demised premises. The High Court upheld this order.
4. Learned counsel for the appellant submitted that after the tentative order of rent was passed, the appellant had deposited the rent for the month of February, 1984, erroneously, in the Misc. Case vide receipt No,47304 from which the Controller had rordered to withdraw the amount of Rs,975 and deposit in the rent case. Otherwise the appellant was depositing rent of two months each time in advance as would appear from the following statement: S.NoReceipt No.Date AmountRent for month 1 47304 6-3-198415 February 1984 Misc.rent case No.35/72 2 48800 10-3-198415 March, 1984 Rent Case No.4248/81.
3 50203 20-3-1984975 Arrears from September 1978 to January, 1984 4 55499 17-4-198430 April and May, 1984 5 65031 11-6-198430 June and July, 1984 6 4560 16-7-198430 July and August, 1984 7 13002 10-9-198430 September and October, 1984 8 20574 6-11-198430 November and December, 1984.
5. Mr. Z.U. Khan, learned counsel for the appellant, explained that the appellant deposited' the rent for the month of March , 1984 in the Misc. Case because of confusion in the order, wherein it was not specified in which case the appellant had to deposit the future rent, for, the order says that the future rent will be deposited in Court. But the mistake was immediately rectified on 10th March, 1984 when the appellant deposited the rent for the month of March, 1984 in advance on 10th March, 1984.
He submitted that deposit of rent for the month of February, 1984 in the Misc. Rent Case was a bona fide error and no mala fides can be attributed to the appellant in this regard. We agree with him as none has been attributed even by Mr.Khalid Ishaque, learned counsel for the respondent. He was out of pocket when he deposited the rent for the month of February, 1984 and the money could not have been withdrawn. Mr.Z.UAhmed relied on two cases of this Court reported as Mahboob Jewellers and others v. Nur Ahmed (1989 SCM R 1327) and Major (Retd.) A.S.K. Samad v. Lt.-Col. (Retd.) A. Hussain and another 1987 SCM R 1013. These cases which are by Full Benches fully support Mr. Z.U. Ahmad. However, it may be mentioned that in the last mentioned case Abdul Kadir Shaikh, J., who wrote the opinion on behalf of the Full Bench, considering the plea that the appellant was depositing the rent in Court regularly in the earlier proceedings between the parties and thus there was no failure on his part to deposit rent in Court and in any case, the failure, if any, was only technical in nature and should not entail the penalty of his eviction from the demised premises, observed as follows: "It is obvious that appellant continued to deposit rent in Court, according to his earlier practice, in Miscellaneous Rent Case No,953 of 1976, and of the only fault committed by him in depositing rent in that case, rather than in the case concerned, namely, Ejectment Application No,1823 of 1977, he cannot be condemned for having been guilty of disobedience of the order of the Rent Controller dated 20-9-1978 so as to entail penalty of his eviction from the demised premises."
6. On the other hand Mr.Khalid M. Ishaque submitted that once there was a default in payment of rent under section 16(2) of the Sindh Rented Premises Ordinance, 1979, the Controller had no option but to strike off the defence of the tenant. He relied on (i) Khawaja Ghulam Mustafa v Mian Waqar Ahamd PLD 1980 SC 9, (ii) Province of Punjab and others v Muhammad Jalil-ur-Rehman 1988 SCMR 1705, (iii) Mahmood Bashir v. Mst. Mubina Begum 1988 SCM R 427 4 and (iv) Government of Punjab v. Mst. Azra Mohy-ud-Din 1990 SCM R 476. All these cases relied upon by Mr.Khalid M.
Ishaque are distinguishable. In the case of Khawaja Ghulam Mustaga (supra) in which the judgment is by two Judges, it was held that the default in deposit of rent was not only not in conformity with the order of the Controller but also deliberate and contumacious, therefore, such a deposit was not validated. In the present case there is no such allegation. In the second case of Province of Punjab and others (supra) the plea that the Rent Controller should have extended the time as the department representative was delayed in making the deposit on account of departmental procedure was repelled. In the case of Mahmood Bashir (supra) the plea was that the arrears of rent were deposited in another case filed by the tenant/appellant against the respondent's wife. Such a plea was not entertained and it was held that the I contumacious insistence on the part of the appellant that he would continue to deposit the rent as he liked in spite of the order of the Controller was not condoned. In the fourth case of Government of Punjab (supra) condonation of the default was sought on the ground that the petitioner/Government was running a school in the demised premises but such a plea was not accepted.
7. Thus, in the case in hand, we are of the view that there being no deliberate or contumacious disregard of the order of the Controller, there was no default on the part of the appellant. In any case, the default, if any, was purely technical in nature because the appellant had deposited the rent within time in the previous proceedings between the same parties in which he was depositing the rent earlier.
8. We, therefore, allow this appeal, set aside the order of the Controller and the judgment of the High Court to remand the case to the Controller for proceeding on merits according to law. The parties are left to bear their own costs.