' The facts, in brief, are that Muhammad Ameen the appellant was given Shop No,7 in Property No,VIII-S-354-A/1 Super Market, Lahore Road, Sheikhupura, at a monthly rent of Rs,200 (Rupees two hundred) by Shah Muhammad, against a cash security of Rs,5,000 (Rupees five thousand) in the year 1977. Rana Shah Muhammad is the real brother of Gulzar Ahmad, respondent. He was appointed General Attorney by the respondent to look after the affairs of his property. A petition for ejectment against the appellant was instituted by Shah Muhammad from the said shop before the learned Rent Controller, Sheikhupura. The application was dismissed as withdrawn on 2-2-1986 on the ground that both the brothers mutually divided the property in question and the shop in question was given to Gulzar Ahmad, respondent as his share. The respondent did not take any action from 2-2-1986 to 22-5-1988 when for the first time an ejectment petition was instituted by him on the grounds of default in the payment of rent and also for personal need. The application was contested by the appellant by filing written-statement. The necessary issues arising out of divergent pleadings of the parties, were framed. The learned Rent Controller decided the preliminary issues in favour of the respondent but it was held that the order was not executable. It was observed that the contesting-respondent was a co-owner in the property. It was, however, held that there existed relationship of landlord and tenant between the parties. An order, therefore, was passed under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, directing the appellant to deposit the rent at the enhanced rate. This order was complied with by the appellant by depositing the due rent. On merits, issues were also framed on 28-2-1991.
Evidence of the parties was recorded. On 20-7-1992 the learned Rent Controller accepted the application of the respondent. The appellant was accordingly ordered to be ejected from the disputed shop. The finding of the learned Rent Controller was that the appellant was a wilful defaulter. The finding on Issue No,2 was that the property in question was not needed by the respondent in good faith. The appellant challenged the validity of the order by filing an appeal which was dismissed by the learned Additional District Judge, Sheikhupura, on 5-12-1993. This second appeal has been filed by the appellant against the impugned order of his ejectment.
2. It is contended that there was no default inasmuch as the entire due rent was deposited by the appellant. It is maintained that no notice under section 13(a) of the Ordinance, 1959 was given by the respondent. The plea is that Shah Muhammad, a real brother of the respondent was holding a General Power of Attorney on behalf of his brother and that the property in dispute was also given to him by the said General Attorney. Another argument is that the learned Additional District Judge only heard arguments in the application of the appellant for framing additional issues under Order XIV, Rule 5, C.P.C. However, no arguments on merits of the appeal pending before the learned lower appellate Court were heard. In support of his arguments, learned counsel relied upon Mrs. Shazaeh Pooya v. Mrs. Mubarak Shah 1988 SCM R 890, Abdullah Ghanghro and another v. Mst. Tahira Begum and another 1988 SCM R 970, M.C., Peshawar v. Messrs Malik Beverages PLD 1994 Pesh.
17. Learned counsel for the respondent argues that it is proved that the appellant has committed default in the payment of rent inasmuch as no rent was deposited in the name of the respondent.
Learned counsel submits that deposit in the name of Shah Muhammad cannot be considered to be valid within the meaning of law. He argues that the property in question was divided by the two brothers namely the contesting-respondent and Shah Muhammad. This is the reason that Shah Muhammad withdrew his earlier petition which he filed against the appellant for his ejectment from the property in question. Nevertheless, it is conceded that Shah Muhammad is the real brother of the respondent and also he had acted on his behalf as his general attorney. It is maintained that the learned Rent Controller and the learned Additional District Judge concluded by saying that the appellant was proved to be a defaulter. He relies upon Saleem Ahmad v.
Additional District Judge and others 1992 CLC 1531, Mohiuddin Ansari v. Muhammad Arif Siddiqui 1991 CLC 72 and Muhammad Arif v. Muhammad Raza PLD 1993 Lah.
121.
3. I have heard the learned counsel for the parties at considerable length and have also read the entire evidence with their assistance. The admitted position is that initially, Shah Muhammad acted as General Attorney on behalf of the respondent in respect of the disputed shop. The deposit of the outstanding rent is admitted by the respondent with the objection that it was paid in the wrong name of Shah Muhammad and not in the name of the respondent who is the real owner of the shop. In such a situation, the sole point for consideration by this Court is as to whether the deposit in the name of Shah Muhammad can be treated as a valid deposit of rent within the meaning of law. The answer to this question, in my view, is in the positive inasmuch as it is in the evidence of the respondent that at one stage, his brother Shah Muhammad acted as his General Attorney and that the property in question was given to the appellant-tenant by Shah Muhammad on rent. It is, therefore, established that entire outstanding rent was deposited in the name of Shah Muhammad by the appellant and non-deposit thereof in the name of the contesting-respondent was a mere technicality which would not affect the merits of the case. The deposit of rent by the tenant was valid in the circumstances of the case and as such he cannot be held to be a willful defaulter. The evidence is that the respondent did not give any notice under section 13(a) of the Ordinance to the appellant to show that the shop had come to his share as a result of division of the property between the two brothers. In law, the respondent was required to have given a notice to the appellant intimating him that he would pay the future rent to him. It was, undoubtedly, a bona fide mistake on the part of the appellant that he continued depositing the rent in the name of Shah Muhammad, General Attorney of the respondent. This mistake, therefore, cannot be held to be fatal to the case of the tenant. Even otherwise, for all intents and purposes, Shah Muhammad was treated as a landlord for the purposes of collection of the rent. This being so, the learned Rent Controller and the learned Additional District Judge had committed gross error in law in giving so much importance to this insignificant error that the rent was not deposited in the name of the real owner. The rent already deposited in the name of Shah Muhammad would have to be treated as a valid deposit in the name of the contesting-respondent. It may also be seen that on the day when the appeal was dismissed by the learned Additional District Judge, only the application of the appellant under Order XIV, Rule 5, C.P.C. Requesting to frame additional issues was fixed for hearing. Therefore, on the said date, the main appeal could not be dismissed without hearing its arguments. This plea was not so seriously disputed by the learned counsel for the respondent. The learned appellate Court should have heard arguments in the main appeal on some other date.
This being so, the appeal is accepted and the case is remanded to the learned lower appellate Court for hearing the appeal afresh for its decision according to law. The appeal succeeds and is allowed with no order as to costs.