AGHA RAFIQ AHMAD KHAN, J.- This first rent appeal is directed under Section 21 of the Sindh Rented Premises Ordinance, 1979, against the order dated 12.9.1994, passed by learned VT-Senior Civil Judge and Rent Controller, Karachi South, in Rent Case No. 973 of 1993, by which he allowed the application under Section 16(2) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), and struck off the defence of the appellant, by directing him to hand over the vacant possession of the premises in question to the respondent within sixty (60) days.
2. The facts leading to the filing of the above appeal are that the respondent filed an application under Section 15 of the Ordinance, being Rent Case No. 973 of 1993, for ejectment of the appellant from premises No. 79, Wazir Mansion, Aiwan-e-Tajarat Road, Karachi, on the ground of non- payment of rent from January 1988 to May, 1988. The appellant filed the written statement and denied the allegation levelled by the respondent in the rent application.
3. On 24.1.1994 the learned Rent Controller, passed a tentative rent order under Section 16(1) of the Ordinance, which reads as under:- "Heard the learned counsel for the parties and perused the record. From the perusal pleading of the parties it appears that the quantum of rent is not. Disputed. The opponent has admitted the rate of rent as Rs. 70/- per month as claimed by the applicant. Opponent has further stated in written statement that he is regularly depositing rent in M.R.C. No. 720/88 before the Court of learned Vth Senior Civil Judge Rent Controller, Karachi (South) and has paid the rent till Sept. 1993 and afterwards. Applicant is claiming rent since Jan. 1988 there is no dispute about relationship of landlord and tenant between the parties nor about the period of rent or quantum. Application is hereby allowed with no order as to costs. Opponent is directed to deposit all the arrears of rent subject to adjustment of rent if already deposited in M.R.C. No. 720/88 within 15 days. Opponent is further directed to. .Deposit future rent in this case on or before 5th of each calendar month. Order accordingly."
4. On 25.5.1995 the respondent filed an application under Section 16(2) of the Ordinance, for striking off the defence of the appellant, stating therein that the appellant did not comply with the tentative rent order by not depositing the rent as directed by the learned Rent Controller in Rent Case No. 973 of 1993. The appellant filed objections/counter-affidavit, sating therein that he was regularly depositing rent in M.R.C. No. 720 of 1988 and has deposited rent upto the date i. e. September, 1994.
5. After hearing the parties counsel the learned Rent Controller allowed the above application and struck off the defence of the appellant, holding that the appellant had not deposited the rent in the present rent case, therefore, his defence was liable to be struck off.
6. Mr. Mustafa Lakhani, learned counsel for appellant has contended that the appellant was depositing rent in M.R.C. No. 720 of 1988 of the same premises continuously and there was no default at all on the part of the appellant. The tentative rent order dated 24.1.1994 is uncertain, vague and indefinite as the said order is silent with regard to the amount of arrears and does not specify the month from which the future rent is to be deposited. Further more it says that future rent is to be deposited before 5th of each calendar month, whereas the law is that the rent is to be deposited on or before 10th of each month. According to the learned counsel for appellant this was a technical default, therefore, the learned Rent Controller has wrongly struck off the defence of the appellant. He has relied upon the cases of Muhammad Aslant v. Muhammad Umar and another, reported in PLD 1982 Karachi 107, Anwar Ahmad v. Muhammad Sharif reported in 1991 M.L.D. 701, Abdullah Ghanghro and another, v. Mst. Tahira Begum and another, reported in 1988 S.C.M.R. 970, Mst. Rashid Jehan v. Muhammad Ashraq, reported in 1991 M.L.D. 2619 and the case of Muhammad Ahmad v. Mrs. Qamar Anwar Shaikh, reported in 1980 C.L.C. 664.
7. Mr. M. Siddiq Shaikh, learned counsel for respondent has argued that admittedly the appellant has failed to comply with the directions of the learned Rent Controller by not depositing the rent in the rent case, in which the rent order was passed, therefore, his defence was rightly struck off. He has relied upon the cases of Muhammad Naeem and another v. M/s Karimi Bidi Works through Partners, reported in 1992 C.L.C 2499, Major (Retd) A.S.K. Samad v. It. Col. {Retd.) A. Hussain and another, reported in 1987 S.C.M.R. 1013, Hussain Trading Company, Karachi v. M/s. Jalal Brothers (Private) Limited, Karachi, reported in 1994 S.C.M.R. 159 and the case of Malik Aman v. Khawaja Abdul Aziz through his legal Heir, reported in 1987 C.L.C. 425.
8. I have given full consideration to the contentions of the learned counsel for the parties and gone through the R & P as well as the authorities relied on by them: It is an admitted position that the appellant was continuously depositing the rent in Misc. Rent Case No. 720 of 1988 in the name of the respondent prior to the tentative rent order passed in Rent Case No. 973 of 1993. The appellant instead of depositing the rent in this case continued the same in misc, rent case, otherwise there is no default in payment of rent. The case reported in '994 S.C.M.R. 159, relied on by the respondent's counsel is distinguishable from the facts of the present case as in that case the tenant was found to have committed default even in misc. Rent case by short depositing the rent, whereas in the present case the appellant/tenant has deposited the entire amount of rent in Court in the name of his landlord/respondent. It can be almost, a technical default rather than the wilful, as held in the case reported in 1987 S.C.M.R. 1013, which reas as under:- "Leave to appeal against this order was granted by this Court in order to examine the plea raised by the appellant that he was depositing 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."
It has also been held in the case reported in 1988 S.C.M.R. 971, which reads as follows:- "Since the petitioners were out of pocket of the amount of rent payable by them which they actually deposited in Court with the intention that the landlord may withdraw the amount, if he so desires, and there is no complaint that the landlord could not do so, petitioners cannot be condemned as guilty of not depositing rent in Court. They had actually deposited the rent in Court but made the mistake of depositing in one case and not the other and this amounts to an irregularity rather than penal non-compliance of the order."
The tentative rent order passed by learned Rent Controller itself is defective order. It would be pertinent to reproduce the same, which is as under:- "Heard the learned counsel for the parties and perused the record. From the perusal of pleading of the parties it appears that the quantum of rent is not disputed. The opponent has admitted the rate of rent as Rs. 70/- per month as claimed by the applicant. Opponent has further stated in written statement that he is regularly depositing rent in M.R.C. No. 720/88 before the Court of learned Vth Senior Civil Judge and Rent Controller Karachi (South) and has paid the rent till Sept.
1988 there is no dispute about relationship of landlord and tenant between the parties nor about the period of rent of quantum. Application is hereby allowed with no order as to costs. Opponent is directed to deposit all the arrears of rent subject to adjustment of rent if already deposited in M.R.C.
No. 720/88 within 15 days. Opponent is further directed to deposit further rent in this case on or before 5th of each calendar month. Order accordingly."
The above order appears to be vague and indefinite as neither the amount of arrears of rent is shown nor the month from which the future rent is to be deposited, is specified, In the order the tenant was directed to deposit the rent before 5th of each calendar month, whereas under the provisions of Section 16(1) of the Sindh Rented Premises Ordinance, 1979, the future rent, is to be deposited on or before 10th of each calendar month.
9. In view of the above authorities of the Honourable Supreme Court and the legal position, 1 am of the considered opinion that the appellant has committed only a technical default and not wilful, therefore, he cannot be condemned as guilty of not depositing the rent in Court. Even otherwise the tentative rent order is also defective as stated above, therefore, for these reasons the appeal is allowed with the result that the impugned order dated 12.9.1994 passed by the learned Rent Controller is set aside arid the case is remanded to the learned Rent Controller for further to law.
The parties , are left to bear their own costs.