' SAJJAD ALI SHAH, CJ.---This appeal with leave of the Court is directed against the judgment dated 4-12-1993 of the Peshawar High Court, whereby F.A.O. No, 28 of 1993 filed by the appellant is dismissed and in the result order dated 12-5-1993 passed by the Controller of Rent, Peshawar Cantonments, striking off defence of the appellant and granting eviction is upheld.
2. Respondent, who is landlady, filed application for eviction of the appellant as tenant under section 17 of the Cantonments Rent Restriction Act, 1963 from the house on Jalil Road, Peshawar Cantt. On the grounds of personal use, after demolition and reconstruction, and subletting without permission. (Both the parties hereafter would be mentioned as landlady and tenant respectively).
Tenant contested the proceedings and filed written statement. Learned Rent Controller passed tentative rent order under section 17(8) of the Cantonments Rent Restriction Act, 1963 on 26-1-1993 directing the tenant to deposit Rs,4,500 monthly rent in the National Bank of Pakistan, Saddar Branch, before fifth of every calendar month. Application for striking off defence was filed on 8-3- 1993, against which objections were filed on 15-3-1993. Tenant took up the plea in the written objections that he had been paying rent regularly of the last 15/16 years and had been depositing the same in the account of the landlady in the bank and further landlady had not sought eviction on the ground of default. In any case the rent of December '92 and January '93 was also deposited in the account of the landlady, hence there was non-compliance of the tentative rent order and if there was one the same could be treated as technical and not wilful.
3. Plea of the tenant was rejected by the learned Rent Controller on the ground that rent of January '93 was deposited in Grindlays Bank and not in the National Bank as was ordered by the Court and that it was obvious that it was deposited on 10-2-1993 and not before fifth as ordered in the tentative rent order. Relevant portion from the order of striking off defence is reproduced as under: "The rent for January, 1993 was deposited on 10-2-1993 i,e. After 5th February, 1993. The order dated 26-1-1993 was also not complied with by the respondent. The rent for January, 1993 was not at all deposited in National Bank of Pakistan, Saddar Road Branch, Peshawar before 5th February, 1993 rather it was tendered through cheque which is obviously not a proper mode of payment."
4. It was argued before us on behalf of the tenant that firstly, tentative rent order was not communicated to the tenant. Secondly, the tenant was not in Peshawar. Thirdly, in furtherance of tentative rent order, learned Rent Controller wrote to National Bank of Pakistan on 24-2-1993 for opening of the account in the said bank to enable the tenant to deposit the rent. In such circumstances, there was confusion particularly when the tenant had been depositing the rent in the name of the landlady in Grindlays Bank as per past practice and there was no authorisation for deposit of rent in the National Bank, hence due to confusion and bona fide mistake rent for January '93 was deposited on 10-2-1993 instead of fifth as envisaged in tentative rent order. It was a technical default and not intentional particularly when in the past no default had taken place during the subsistence of tenancy for 15/16 years and even landlady did not apply for eviction on the ground of default.
5. On behalf of the landlady it was argued that firstly the grounds urged in this Court on behalf of the tenant were not urged before the learned Rent Controller and secondly that the tenant was aware of the tentative rent order and the directions contained therein, hence there was clear cut and wilful noncompliance as rent for January '93 was not deposited within stipulated time in the bank as directed in the tentative rent order. Perusal of objections and order of striking off defence shows clearly that objection was taken by the tenant that non-compliance was not wilful but on account of confusion as the tenant had been depositing the rent in past in the name of landlady in Grindlays Bank.
6. Perusal of section 17 of the Cantonments Rent Restriction Act, 1963 clearly shows that grounds are mentioned specifically on which eviction can be granted and procedure is also prescribed as to how the proceedings for eviction can be commenced and dealt with. Subsection (8) of section 17 of the said Act very clearly envisages that on the first hearing of proceedings or soon thereafter as may be but before the issues are framed, the Controller shall direct the tenant to deposit the rent.
This is to be done mandatorily before issues are framed and it is not said anywhere that such order cannot be passed if eviction is not sought on the ground of default. Scheme of the Act does not show that there is nexus between tentative rent order and ground of default and both go together.
It is, therefore, clear that tentative rent order can be passed even if ground of default is not alleged for seeking eviction. In support of the proposition reference can be made to the case of Mst.
Mahmooda Begum v. Mst. Mahmooda Jan (1973 SCM R 131) in which it is held that direction to deposit past and future rent can be made in all proceedings of ejectment including proceedings initiated on the ground of personal use as contemplated under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. On comparison it will be found that the language used in both these provisions is almost the same. In the result the contention that tentative rent order cannot be passed if eviction is sought not on the ground of default is rejected as untenable.
7. Contention raised on behalf of the landlady that the tenant did not urge the ground before the learned Rent Controller as is being urged by him in this Court is not accepted for the reason that the tenant took up the plea before the Controller that there was no non-compliance and there was confusion with regard to the name of the bank, hence if there was any noncompliance that would be technical in nature and not intentional. Reliance in support of the contention on the case of Shuja-ud-Din v. Haji Masitey Khan and another (1981 SCM R 531) is misplaced for the reason that in the reported case the tenant had not in reply to default application taken the plea of illness but stated for the first time in this Court that he was suffering from kidney trouble, hence that plea was considered as belated. Perusal of section 17(8) of the Cantonments Rent Restriction Act, 1963 very clearly shows this is mandatory in nature and word used is "shall" to the effect that the Controller shall direct the tenant to deposit in his office before a specific date It is manifest and intention of Legislature is very clear that it is imperative upon the Controller to direct the tenant to deposit the rent but that rent is to be deposited "in his office", which means Office of the Controller and not anywhere else. This is for the reason that non-compliance with tentative rent order is directly punishable and in consequence defence of the tenant can be struck off and eviction can be granted, hence there should not be any ambiguity or confusion when such direction is to be made by the Controller in the tentative rent order and the direction is to be very specific in nature that rent is to be deposited in the office of the Controller and not anywhere else. Rent law allows tender of rent by tenant to the landlord by payment through cheque if so agreed between the parties but such mode is not allowed at the time of passing of tentative rent order for which it is specifically stated that the Controller shall direct the tenant to deposit in his office before the specific date the rent due from him In support of the proposition reference can be made to the cases of Messrs Peoples Steel Mills Ltd., Karachi v. Hafizuddin and 7 others (PLD 1981 Karachi 739) and Younus Rizwani Sheikh etc. v. Pakistan State Oil Co. Ltd. (PLD 1988 Kar. 338).
8. Now if mandatory requirement of deposit of rent in the Office of the Controller is not adhered to and deviation is made by ordering deposit of rent in bank or in some other place, then if there is non-compliance accompanied by explanation showing confusion arising from the tentative rent order and if the tenant has bona fidely acted under that confusion and has not acted wilfully, such non-compliance can aptly be considered as technical default as in this case in which plea is taken that the tenant had been depositing rent without fail in Grindlays Bank in the name of the landlady and there was mistake as rent in National Bank could not be deposited before due date on account of confusion and mistake particularly when the Rent Controller wrote to the National Bank on 24-2-1993 to open account for deposit of rent by the tenant. We accept the explanation of the tenant that ultimately the rent was deposited on 10-2-1993 in the Grindlays Bank as per past practice of the parties. -We are also impressed by the fact that tenancy is 15/16 years old and during that time no default had been committed and even landlady has not sought eviction on the ground of default. This adds to the bona fides of the tenant and shows that non-compliance with tentative rent order was not deliberate and intentional. In the result, impugned judgment of the High Court and order dated 12-5-1993 of the learned Rent Controller, striking off defence of the tenant and granting eviction, are set aside and the case is remanded to the learned Rent Controller for taking further proceedings in accordance with law. We had allowed this appeal on 28-11-1994 by a short order and reasons were to be recorded later on, which are as above.