1. ' This is tenant's appeal against striking off defence and passing of order of ejectment.
2. ' Admittedly appellant Agha Abdul Majeed is in possession of the premises in litigation bearing No,368, Block-9, Dastagir Society, Karachi, as tenant. Said property was owned by Abdul Rahim Pasha, who gifted out the same on 21-12-1989 to respondent Inam Waris.
3. ' Rent Application No,153 of 1991 was filed by Inam Waris for eviction of the appellant from the premises in litigation, on the ground that the appellant had defaulted in payment of rent from January, 1990 and that the same was required by the respondent for his bona fide personal use.
4. ' The rent case was contested by the appellant, who filed written statement challenging the gift, and taking plea about having spent some amount on repairs for which the appellant claimed to be reimbursed.
5. ' By an order dated 7-4-1992 passed under section 16(1) of Sindh Rented Premises Ordinance (hereafter mentioned as the Ordinance) the Rent Controller directed the appellant to deposit rent for January 1990 and onwards till March 1992 at the rate of Rs,250 P.M. Amounting to Rs,6,750 by 14- 5-1992 and to deposit future monthly rent for each month, by 10th of the next following month.
6. ' In compliance with such order, the appellant deposited the arrears of rent amounting to Rs,6,750 in a different case. Consequently on an application moved by the respondent, the Rent Controller passed the impugned order dated 29-9-1992 by which he struck off defence of the appellant and ordered his ejectment within 30 days. Hence this appeal.
7. ' Ms. Syeda Raffat Bano, learned counsel for the appellant argued that there was no contumacious or intentional default in complying with the rent deposit order, but there was a technical default inasmuch as the arrears of rent ordered to be deposited in Court, were deposited in Court but in a Miscellaneous Rent Case, where the appellant had already been depositing the rent. This, according to learned counsel for the appellant, did not amount to failure to deposit the arrears of rent or the monthly rent in terms of section 16(2) of the Ordinance. Learned counsel for the appellant cited the cases of:
(i) Muhammad Yousaf v. Maqbool Ahmed (1985 CLC 2862).
(ii) Choudhry Muhammad Amin v. Mst. Zahida Begum (1985 CLC 3018).
8. ' Mr. A. Rashid learned counsel for the respondent argued that the arrears of rent were ordered to be deposited in this case in name of the respondent, but such order had been intentionally violated. It was also argued that the rent was deposited not in name of the respondent but in name of old landlord viz Abdul Rahim. Mr. A. Rashid, Advocate for the respondent cited the cases of:
(i) Khawaja Ghulam Mustafa v. Mian Waqar Ahmed (PLD 1980 SC 9).
(ii) Syed Ikramuddin Bulki v. Mst. Ishrat Warsi (1992 CLC 366). Farooq Hussain v. Muhammad Saleem Khan (1992 CLC 2276).
(iv) Muhammad Naeem and another v. M/s. Karimi Bidi Works (1992 CLC 2499).
(v) Miss Zafar Fatimah Rizvi v. Syed Saleem Raza (1993 CLC 270).
(vi) Anjum Parvez Qureshi v. Babar Sultan (1993 CLC 1823).
(vii) Mahmood Bashir v. Mst. Mobina Begum (1984 CLC 2620).
9. ' Most of the facts in this appeal are not disputed. It is admitted that appellant Agha Abdul Majeed is in possession of the property in litigation. It is not disputed that the appellant occupied the property in litigation as tenant of Abdul Rahim Pasha, under a Lease Agreement dated 30-7-1989.
10. Fact that previous landlord of the appellant namely Abdul Rahim Pasha gifted the property in litigation to respondent Inam Waris in December, 1989, has not been denied although his competency to gift and legality of the gift have been challenged, notice under section 18 of the Ordinance is denied. It is admitted that the appellant occupies the property in litigation as a tenant. He claimed that he continued to be tenant in the said property but of Abdul Rahim Pasha.
11. Rate of rent at Rs,250 p.m. Was denied but not specifically. It was in these circumstances that the Rent Controller passed on 7-4-1992 rent deposit order under section 16(1) of the Ordinance, directing the appellant to deposit in Court, arrears of rent for the period from January 1990 till March 1992 amounting to Rs,6,750 by 14-5-1992 and to deposit future monthly rent for each month by 10th of the succeeding month at rate of Rs,250 p.m. Thereafter, the respondent moved before the Rent Controller on 17-5-1992 an application under section 16(2) of the Ordinance for striking off defence of the appellant on the ground of non-compliance of the order passed under section 16(1) of the Ordinance. In his objections to the application under section 16(2) of the Ordinance, the appellant asserted that he had deposited in Court the entire rent ending 31-8-1992 but till April, 1992 it was deposited in name of Abdul Rahim Pasha and after April 1992 it was deposited in name of Inam Waris.
12. ' Appellant added that the respondent could withdraw the rent deposited by him. This has given rise to the often discussed proposition viz. Whether deposit of arrears of rent in wrong name by the appellant, would amount to noncompliance of the rent deposit order dated 7-4-1992 passed under section 16(1) of the Ordinance.
13. ' In the case of Muhammad You'd v. Maqbool Ahmed 1985 CLC 2862 cited on behalf of the appellant, the tenant despite being directed to deposit the rent in the ejectment case, misunderstood the direction and continued to deposit rent in the miscellaneous rent case and the landlord was aware of pendency of such miscellanies rent case in which the arrears were deposited and in the circumstances it was held that unless a contumacious conduct or bad faith of the tenant is pointed out, it is not sufficient merely on such technical defaults to strike off the defence. In the case of Chaudhry Muhammad Amin v. Zahida Begum 1985 CLC 3018 the view taken by a learned Single Judge of this Court was that practice of filing application without pleading specific default is highly deplorable and it should be discouraged and that in such circumstances tenant's defence should not have been struck off.
14. ' It would be necessary to discuss the cases cited on behalf of the respondent. In the case of Khawaja Ghulain Mustafa PLD 1980 SC 9 the tenant failed to deposit rent in specific name of the landlord suing for ejectment of tenant and whom he had specifically accepted as his landlord but he deposited the same in name of large body of persons and such deposit was held to be contumacious, deliberate and not in conformity with rent deposit order and validity of such deposit was held to have been rightly not endorsed. In the case of Miss Zaffar Palma Ritvi 1993 CLC 270 the tenant did not comply with the rent deposit order and his plea that the default in payment of rent after institution of the rent case would afford a fresh cause of action and, therefore, no penal order can be passed by the Rent Controller for such default, was repelled. This case was distinguishable, In the case of Atilt Parvez Qureshi 1993 CLC 1823 the tenant instead of depositing the rent in the name of the landlord, in compliance with tentative rent order, continued depositing rent in name of a wrong person, which act Was delibefate and contumacious and consequently defence was struck off. Before succeeding in present case on basis of said case, the landlord/respondent has to establish that deposit of rent by the appellant in the different case was contumacious and deliberate. In the case of Mehmood Bashir 1984 CLC 2620 the tenant failed to deposit rent in name of landlady but deposited the same in her husband's name and consequently the tenant was directed by the Court to withdraw the amount wrongly deposited and to deposit the same in name of the landlady, but he failed to comply with such direction and in the circumstances his defence was struck off. Even this case was distinguishable as in the present case the appellant was not given direction to withdraw the rent from the case in which it was deposited and to re-deposit the same in the ejectment case. In the case of Syed Ikramuddin Bulki 1992 CLC 366. The tenant failed to comply with the tentative rent order and he continued to deposit monthly rent in a Miscellaneous rent case, in name of previous owner and his eviction was ordered. It was a case of deposit in wrong case and in wrong name. In the case of Farooq Hussain 1992 CLC 2276 the tenant deposited the rent ordered under. Section 16(1) of the Ordinance, not in the rent case filed against him, but in a Miscellaneous Rent Case in which he had been depositing rent previously. Even in the Miscellaneous Rent Case, rent for a month was deposited not by 10th of the next calendar month but on 18th of the next calendar month and hence eviction of the tenant, ordered by the trial Court, was not interfered with. Late deposit of monthly rent for any month was not alleged in the instant case. The view taken in the case of Muhammad Naeem appears to be in conflict with the view taken by the Hon'ble Supreme Court of Pakistan in the case of A.S.K. Samad v. A. Hussain and another 1987 SCM R 1013 and in the case of Noor Muhammad and another v. Mehdi PLD .1991 SC 711 which was cited before the learned Single Judge. The preponderance of case-law given by the Hon'ble Supreme Court of .Pakistan, appears to be that in case of technical default the defence should not be struck off.
15. ' The case of Muhammad Yousaf 1985 CLC 2862 has already been discussed and it appears to be in line with the instant case. It was, decided by a learned Single Judge of this Court who is adorning Supreme Court of Pakistan. In the cited case of Muhammad Yousaf 1985 CLC 2862 the tenant on coming to know about the objection raised by the landlord, started depositing the rent in the ejectment case.
16. In this view of the matter, the appellant while depositing the arrears of rent in a wrong rent case in the same Court, cannot be held to be guilty of having intentionally violated the rent deposit order dated 7-4-1992. It has not been established by the respondent if deposit of rent in a wrong case by the appellant was on account of his contumacious conduct or bad faith or was ill-motivated.
17. ' For the foregoing reasons, I accept this appeal, set aside the impugned order and remand the matter to the Rent Controller for disposing of the rent application according to law. Needless to add that the rent deposit order dated 7-4-1992 would continue to operate till decision of the rent application and the appellant shall comply with said order and in case of default the Rent Controller shall be competent to strike off appellant's defence. No order as to costs.