1. WAJIHUDDIN AHMED, J.---The appellant is the tenant of the respondent in relation to property bearing No,1211, Unit No,12, Latifabad, Hyderabad. The landlady sought his eviction through Rent Application No,194 of 1988 on the two-fold grounds of default and personal need. The tenant was already depositing rent through Rent Application No,115 of 1988. The learned Controller took up an application of the landlady under Section 16(1) of the Sindh Rented Premises Ordinance, 1979, for corresponding deposit of rents. She required the tenant "to deposit the arrears of rent from April 1988 at the rate of Rs,800 per month up to September, 1989, including electricity charges at the rate of Rs,50, per month from the month of May 1987, total amounting to Rs,16200 within a month subject to adjustment of any amount deposited by the opponent in this court towards the rent and other charges." The tenant was "further directed to continue to make deposit of succeeding month before 10th of each succeeding month". It was, however, added that so far as the electricity and gas charges were concerned, due finding would be recorded after evidence in the case. In course of time, the landlady moved for striking off the tenant's defence under section 16(2) of the Ordinance and the tenant's defence was struck off by the learned Controller on 24-10-1991. Before the application under Section 16(2) was moved, apparently on 10-7-1990, the landlady, in spite of the objection by the tenant, had already obtained an order of withdrawal of the deposited rents in Rent Application No,115 of 1988, such order having been passed on 7-3-1990. Regarding the aforesaid application under Section 16(2), the tenant had filed a counter-affidavit on 1-10-1991 and the several pleas, as found incorporated therein, were that the tenant in the then law and order situation prevailing at Hyderabad was handicapped in not depositing the rents in the ejectment matter though he continued to do so in Rent Application No,115 of 1988, that the default, if any, was neither deliberate nor wilful, that the tentative order of deposit of rent was itself incorrect and that, at any event, the landlady had already withdrawn the deposited rents. The Controller, who incidentally was the same that allowed the withdrawal of the deposited rents, through the order dated 24-10-1991, whereby the defence was struck off, agreed that there was a calculation error in the order passed under Section 16(1) in that, instead of the actual amount of Rs,15850, such was erroneously calculated to be Rs,16,200. The Controller also agreed that continuation of deposits in Rent Application No,115 of 1988 was not contumacious and that credit for the same could be allowed, but found that, even so, the deposit was inadequate, totalling Rs,14450 and implying a shortfall of Rs,1400, including non-deposit for the month of June, 1989, which, however, was made up on 9-8-1990 when a cumulative deposit of Rs,1700 was made. The Controller was, obviously, in error, when for the purpose of striking off the defence he took note of the default for the month of June, 1989, since that month stood included in the tentative order. Such, however, would have remained for consideration at the time of ultimate assessment of default in the final order. It would also be useful here to advert to the fact that, besides the above, the tenant had collaterally instituted an application under Section 11 of the Sindh Rented Premises Ordinance for, restoration of amenities of water and electricity and such was registered as Rent Application No, 197 of 1988.
2. In that application and indeed in subsequent proceedings as well it was brought out that the electricity of the tenant-hold had been disconnected on 14-6-1988. The plea for restoration of the electric connection was, however, not pressed because the tenant, in the meantime, had started using the electricity provided in his next door clinic for the purposes of the tenant-hold, where he was running a maternity home. Regarding the restoration of the water facility, the Controller per order dated 31-3-1994 allowed restoration. Be that as it may, against the striking off the 'defence in terms of the order dated 24-10-1991, FRA No,98tof 1998 was preferred by the tenant at the Hyderabad Seat of the High Court of Sindh. Such appeal was dismissed on 4-12-1994 by a learned Judge in Chamber who, agreeing with the Controller, found that the correct amount to be deposited by the tenant was not Rs,16200, as calculated in the tentative order dated 2-9-1989, but Rs, 15,850. The learned Judge, nonetheless, upheld the order of the Controller because the actual amount shown deposited was only Rs,14,450 and besides the deposits in the miscellaneous rent application did not find favour with him in view of what was observed in Ghulam Hussain v. Roshan Bibi, 1986 SCMR 1714, Mst. Zulekha Bai v. Muhammad Yakoob 1989 CLC 479, and Hussain Trading Company v. M/s Jalal Brothers (Pvt.) Ltd., 1993 CLC 2391 as upheld in Hussain Trading Company v.
3. Jalal Brothers (Private) Ltd., 1994 SCMR 159.
4. Against the order of the High Court, Leave was granted here, inter alia, on the ground that the default, if any, could be technical only in nature as visualised in Noor Muhammad and another v.
5. Mehdi (PLD 1991 SC 711).
6. The learned Controller in his order under Section 16(2) of the Sindh Rented Premises Ordinance, passed on 24-10-1991, has detailed the deposits made by the tenant in Rent Application No,115 of 1988 and the same till 1-10-1989 (one month starting 2-9-1989 viz; the date of the tentative order), stand reflected as under:--{{TABLE}} Date Entry NumberAmount 5-5-19886161 1700-00 8-6-19886855 0850-00 10-8-19880447 0850-00 9-8-19880909 0850-00 10-9-19881500 0850-00 9-10-19881855 0850-00 6-11-19882997 0850-00 10-12- 19883075 0850-00 10-1-19898688 0850-00 27-2-19894309 0850-00 30-3-19894833 0850-00 23-4-19895320 0850-00 8-7-1989 0370 0850-00 10-8-19890933 0850-00 9-9-19891329 0850-00 Total 14,250-00 From the quoted portion of the order of tentative deposit it is clear that such deposit was "up to September, 1989". The words "up to" carrying the meaning "as far as", a particular level, number, amount, point etc. This, in turn, implies that when it is stated without anything more, that the deposits would be "upto September, 1989" such may or may not include the month of September itself though the months preceding September would definitely be included. If the intendment behind the pharaseology was designed to definitively include the month of September as well, a more accurate statement would be, "upto and inclusive of September, 1989". To such extent, accordingly, the order of deposit, which did not even spell out the number of months involved, was indefinite, ambiguous and uncertain. It was possible, therefore, in the context, to read the order as excluding the month of September. Calculated on this hypothesis, rent at the rate of Rs,800 per month from April 1988 up to September 1989 would involve a sum of Rs,13,600 for 17 months.
7. Correspondingly, electricity charges from May 1987 to September 1989 would cover a period of 28 months and carry a total of Rs,1400. Thus throwing up the cumulative figure of Rs,15000. Here it may be pointed out that the electricity to the premises, admittedly, stood disconnected as from 14-6- 1988, implying that from the month of July 1988 to September 1989 was involved a period of 15 months, during which there was no electricity at the tenant-hold and for which payment for the amenity in the sum of Rs,750 was deductible (a question opening up on appeal), thus reducing the dues to Rs,14,250 and the deposit of Rs,14,450, thereby coming to be in excess thereof, signified that no clear default had emerged.
8. Since the amount expected to be deposited, qua periodically, had thus become uncertain, the accruing dues, in the circumstances for the ensuing period also came to suffer with the same infirmity.
9. There was another element in the order of tentative deposit, which needs to be addressed here.
10. Such comprised of the fact that, while the learned Controller allowed credits for the deposits in the miscellaneous rent case, she (because it was Mrs. Akhtar A. Choudhry who was the then incumbent) did not work out the actual deposits then available in the miscellaneous rent case. In that behalf as well the tentative rent order was defective and could not be made the basis of striking off the tenant's defence. Such orders are required to quantify the amounts lying deposited in miscellaneous or other proceedings and nothing is to be left to the vagaries of chance or the follow up uncertainties of calculation. The rule findsmention in a good deal of reported dicta, amongst others, including Muhammad Aslam v. Muhammad Umer, PLD 1982 Karachi 107, United Bank Limited v. Aijaz Amin, 1983 CLC 530, Ali Jan v. Shujauddin, PLD 1985 Karachi 698, A. Hameed v.
11. Anwar Jehan, 1986 CLC 1977; Halima Hajiani v. Ghulam Dastagir, 1990 ALD 553 (1); Habib Bank v.
12. Noor Ahmed, 1990 CLC 1170 and Tahir Hussain v. Saeed Ahmed Khan Lodhi, 1993 CLC 519.
13. There are, besides, a number of other cases in the field, laying down that vague, uncertain and indefinite tentative rent orders, capable of more interpretations than one, unless an element of contumaciousness be patent on the record, should not, ordinarily, be made the foundation for striking off the defence of a tenant in terms of Section 16(2) of the Sindh Rented Premises Ordinance, 1979, or of other provisions in part materia. Conversely, a tentative order of deposit of rent has to be certain, free of vagueness and must have an element of definitiveness about it. Inter alia, reference on the point may be made to the opinion of Munawar Ahmed Mirza, J., while in the High Court, in Habib Bank Limited v. Amanullah, 1986 CLC 2917, and to the observations in Habib Bank Ltd., v. Noor Ahmed 1990 CLC 1170.
14. This throws up the further controversy in the case namely, whether the continued deposits in a miscellaneous rent case or other proceedings, in the face of and as distinguished from such in the main rent case, ipso facto constitute default and deposits in the former proceeding can be totally ignored. Much as in the High Court, the landlady relies upon (1) Ghulam Hussain v. Roshan Bibi, 1986 SCMR 1714, (2) Begum Ghulam Sarwar v. District Judge, 1987 SCMR 25, (3) Mst. Zulekha Bai v.
15. Muhammad Yaqoob, 1989 CLC 479 and (4) Hussain Trading Company v. M/s Jalal Brothers (Pvt.)
16. Ltd., 1993 CLC 2391, upheld in (5) 1994 SCMR 159. All these cases are distinguishable, each having been decided on its own facts. In the first of these cases "no particulars of the account number or receipts of the miscellaneous proceedings were produced before the learned Controller". In the second, credit for the bank deposit was duly allowed and yet a deficit of Rs,90 was encountered, which was substantial, as the rate of rent was only Rs,30 p.m. The case of Mst. Zulekha Bai proceeds on the basis of Ghulam Hussain v. Roshan Bibi. Distinguished as at (1) above and Dr. Abdullah Ghangro v. Mst. Tahira Begum, 1984 CLC 3102, which by then, though having been upset by a Full Bench of this Court under the same title in 1988 SCMR 970, the reversal was apparently not brought to the notice of the learned Judge, who decided the case of Mst. Zulekha Bai. Re Hussain Trading Company, (4) above, at the High Court level was based on Zulekha Bai's case. Deciding the leave petition against it, brought before this Court, reported in 1994 SCMR 159, a portion of the High Court order was reproduced, revealing that even if deposits in the miscellaneous rent case were accounted for, the tenant still remained in default, such emerging as the ratio decidendi.
17. The more directly applicable law on the point is reflected in Muhammad Yousaf v. Maqbool Ahmed, 1985 CLC 2862, Shahid Hussain v. Iqbal, 1986 SCMR 1069, Major (Retd.) A.S.K. Samad v. Lt. Col (Retd.)
18. A. Hussain, 1987 SCMR 1031, Abdullah Ghanghro v. Tahira Begum, 1988 SCMR 970, Mehboob Jewellers v. Nur Ahmad, 1989 SCMR 1327, Habib Bank v. Noor Ahmed, 1990 CLC 1170, Rashid Jehan v.
19. Muhammad Ashfaq, 1991 MLD 2619 and Noor Muhammad and another v. Mehdi, PLD 1991 SC 711, in the last of which pointed reference was made to the cases of A.S.K. Samad and Mehboob Jewellers.
20. In all the foregoing precedents, which pertained to continue deposits in miscellaneous or other rent proceedings, rather than in accordance with tentative orders in the main rent cases, without carrying any patent contumaciousness and resulting upon circumstances lacking any obvious wilfulness to disregard orders, it was found that the tenant having been out of pocket to the extent of such erroneous, but bona fide, deposits could be purged of the technical default, if he was otherwise found, in effect, in substance and in content to have discharged his part of the obligations. The rule is sound, applies as it does to a penal visitation in the way of striking off a tenant's defence.
21. Resorting to the principles, enumerated hereinabove, we find that the tentative rent order was manifestly faulty in more particulars than one, that the tenant, in all appearances, was not in any manner motivated by disregard of orders, which obviously hound him and that, in the process, where deposits, in essence and in substance, had already been made in the miscellaneous rent case, the landlady was in no way jeopardized. In the result, the orders of the Controller and of the High Court are set aside, upon the appeal being allowed. The case is remanded back to the learned Rent Controller for a fresh but definitive order of deposit of rent, which, though tentative in nature, would cover the entire period, preceding and following the date on which the same may come to be passed. Parties to bear their own costs.