CH.MUSHTAQ AHMAD KHAN, J.- Athar Hussain Jaffri, the appellant filed an ejectment petition against the respondent. Vide order dated 24.6.1985, learned Rent Controller passed an order for depositing of the future monthly rent at the rate of Rs.295/- per month till the final disposal of the ejectment petition. During the course of proceedings in the ejectment petition after close of evidence, when the case had reached the stage of final arguments, the respondent raised an objection to the effect that the future monthly rent has not been deposited correctly, therefore, the order under section 13(6) has not been complied with, hence prayed that the defence of the appellants may be struck of. This objection was controverted. Learned Rent Controller agreed with the contention raised by the landlord and vide order dated 7.3.1990 struck of the defence of the appellant and ordered his eviction. Aggrieved of this order, the appellant filed first appeal before the District Court/Appellate Authority which has been dismissed by the learned Additional District Judge, Lahore vide order dated 26.4.1994, hence this second appeal.
2. Mr. Sohail Akhtar, Advocate, learned counsel for the appellant has argued that the amount of rent ordered to be deposited by the learned Rent Controller had been deposited prior to the date fixed and merely because in the challan form name of the landlord is not specifically mentioned in column No.2, it will not amount to failure to comply with the order passed by the learned Rent Controller, hence, the impugned order of eviction upheld in appeal is illegal and is liable to be set aside.
As against the above arguments, Ch. Bashir Ahmad, Advocate, learned counsel for the respondent, has contended that deposit having been made without indicating the name of the landlord in the challan forms for deposit of rent, it cannot be said that the order passed by the learned Rent Controller under Section 13(6) has been complied with, therefore, defence of the tenant-appellant has rightly been struck of and the order of ejectment has been passed in accordance with law. In support of his contention learned counsel has placed reliance on case of Kh. Ghulam Mustafa Vs. Waqar Ahmad (PLD 1980 S.C.9) and case of Bahadur Khan and others Vs. Ch. Muhammad Hussain and others (1991 SCMR 429).
8. I have considered the arguments addressed by the learned counsel for the parties and have gone through the retard. It is admitted that the rent as per order passed by the learned Rent Controller has been deposited by the appellant. It is also admitted that there is no other person who is claiming to be the landlord of the premises in question. It is also admitted that for withdrawal of the said amount, the respondent moved an application on the basis whereof an order has been passed by learned Rent Controller that necessary vouchers for withdrawal of the deposit by the respondent/landlord may prepared. This order was passed after getting a report from the treasury officer vide his endorsement dated 29.3.1991. It is therefore, established beyond doubt that omission of the name of the landlord in the challan form is neither contumacious nor wilful nor is tainted by bad faith or ill-will to the effect that the deposit should be made in such a manner that it becomes almost impossible for the landlord to withdraw the same. It is well established legal preposition that mere non-compliance of order passed under Section 13(6), unless it amounts to failure which means deliberate disobedience, penalty of striking of the defence cannot be awarded to the tenant. Refer case of Ghulam Muhammad Khan Lundkhor Vs. Safdar Ali (PLD 1967 S.C.530). It is also well established legal preposition that commission of inadvertent error while filling up the challan form which is also to be signed by the Presiding Officer, cannot result in awarding of penalty to the litigant as he cannot suffer by the act of the court. Refer case Khan Shah Muhammad Khan Vs. Allah Diwata and others (PLD 1961 Lahore 743). In view of the above it cannot be said that the appellant has deliberately failed to comply with the order passed by learned Rent Controller which may entail a penalty of striking of his defence. In case Muhammad Arif Vs. Muhammad Raza (NLR 1994 p/641) where an identical question arose as to whether omission by the tenant to write the name of the landlord in column No.2 of the challan form would amount contumacious/intentional disobedience of the order passed under section 13(6), this court has held that this type of omission does not constitute intentional failure/non compliance of order passed under section 13(6) and reflee would not attract penalty of striking of the tenant's defence. Cases of "Muhammad Arif " and "Bahadur Khan" (supra) cited by the learned counsel for the respondent are distinguishable on facts and hence not attracted in the facts of the case in hand as in those cases the deposit was made in such a manner that it was made impossible for the landlord to withdraw the deposit and in this view of the matter their lordships of the Supreme Court held that the such deposit would not be held to be a compliance with the orders passed by the learned rent controller. In the case in hand as observed earlier that the parties were not under any doubt with regard to the person in whose favour the rent amount has been deposited and the court had already ordered the payment of the amount to the respondent/landlord. Even objection with regard to the deposit in question was never raised for a long time during the pendency of the proceedings and was raised at the fag end of the trial of the case for the first time. Hence the impugned orders are illegal and are not maintainable.
9. Resultantly, this appeal is accepted, the impugned orders passed by both the Courts below are set aside and the case is remanded to the learned Rent Controller who shall decide the ejectment petition on merits within a period of three months with effect from the date of receipt of this order.
In view of the difficult legal question involved in case it is directed that both the parties shall bear their own costs.