' This is an appeal under section 224 of Cantonment Rent Restriction Act against order, dated 11-7- 1997, of the learned Additional Rent Controller, Rawalpindi Cantonment, by which the defence of appellant was struck off and his eviction was directed.
2. Respondents filed ejectment petition under section 17 of Cantonment Rent Restriction Act, 1963 for the ejectment of appellant from a shop, on the ground of default in payment of rent. It was claimed that the appellant had failed to pay rent from January 1996. The ejectment petition was filed on 14-71996.
3. Respondents resisted the ejectment petition. On 17-10-1996, the learned Additional Rent Controller directed deposit of arrears of rent as well as future monthly rent. Later the defence of the appellant was struck off and he was ordered to be ejected.
4. Learned counsel for the appellant submitted that order for the deposit of rent was interpolated inasmuch as, the word May was written after making cutting of word July 1996. He submitted that the direction was only for the deposit of rent from July 1996 and, therefore, there was hardly any occasion to strike off the defence. It was added that even otherwise the order could not sustain as on 22-12-1996, the appellant had offered for decision of the case on special oath. In terms of the offer, the appellant had agreed that if the respondent would state on Holy Book that the rent for the period from January, 1996 till the filing of ejectment petition had not been received by him then the appellant would deliver vacant possession of the shop within ten days. Respondent agreed for a decision of the case on the basis of special oath. He obtained date for the purposes of taking oath and despite getting opportunities, he refused to take oath. Learned Counsel submitted that the contract was complete when the offer for decision on special oath was accepted and since the respondent had failed to take oath, the ejectment petition was liable to be dismissed. In the alternative, it was argued that the presumption would be that the appellant had paid the rent for the disputed. Period and, therefore, the defence could not be struck off.
5. Learned counsel for the respondents defended the impugned order and argued that the statement for decision of the case on special oath was in the main case which had nothing to do with the effect of non-compliance of order for the deposit of arrears of rent.
6. 1 have given due consideration to the submissions made and have considered the order sheet minutely.
7. From the order sheet of the Rent Controller it is discernible that the learned Additional Rent Controller directed deposit of arrears of rent from May 1996. The order shows, that there is a cutting in the first line regarding the month of July, which was changed to May 1996 but that does not appear to have been subsequently made. Reason being, the Additional Rent Controller in the last part of the same order, has mentioned that the arrears were to be deposited from May 1996. This being so, there can be no second opinion and (sic) started from May, 1996.
8. There is, however, substance in the second submission of learned counsel for the appellant. The record shows that the appellant had denied default and specifically stated that the rent from May 1996 till the filing of the ejectment petition had already been received by the landlord.
Notwithstanding the same the Additional Rent Controller directed the deposit of rent from January, 1996 till the filing of the ejectment petition. On 22-12-1996, it was pointed out by learned counsel for the respondent that the appellant had committed default and his defence should be struck off as the rent was deposited from July 1994 and not from May 1996. At that juncture, the appellant stated that if the respondents would state on 'Holy Book' that he had not received the rent from January, 1996 till the filing of the ejectment petition, he would vacate the property within ten days. This offer was accepted by the respondents and accordingly, the Additional Rent Controller fixed the case for recording of special oath. Special oath could not be taken on the same date as the respondent pleaded that his clothes were not neat and clean and that he had not taken 'Wazoo'. The case was adjourned for special oath. On 21-3-1997, the respondent No,1 stated that he was not prepared to take oath on 'Holy Book'. On this statement, the case was fixed for further proceedings. Later the Additional. Rent Controller accepted the application of the respondents and struck off the defence of the appellant on the ground that he had not deposited the rent from May, 1996. The order does not indicate, if the Additional Rent Controller had considered the effect of not taking the oath by respondents.
9. In the above circumstances, the question would arise, as to whether the ejectment petition could be dismissed as the respondents had refused to take special oath after having accepted the offer.
Another question would be as to whether the respondents could retreat at a stage when the offer had already been accepted and contract was complete for decision of the case on special oath.
One of the questions would be as to whether an adverse presumption can be drawn against the respondents for not taking special oath after having agreed to take the same. Another circumstance which needs to be considered is that the period of default claimed in the ejectment petition was from January, 1996 till the filing of ejectment petition (i,e, 14-7-1996). It was in regard to this period that the Additional Rent Controller directed the appellant to deposit arrears of rent. For the same period, offer for decision on special oath was made on the plea that the rent had already been paid. The special oath was not taken after having agreed for a decision on the basis thereof.
The question for consideration would be as to whether in such circumstances an order for deposit of rent from May, 1996 till the filing of ejectment petition could have been passed and if so, could in these circumstances the tenant be held to be a wilful defaulter if the order had not been complied with. This question and also the questions noted supra have not been attended to by the learned Additional Rent Controller while passing the impugned order should who proceeded to struck off the defence by a brief order, observing that the order had not been complied with, therefore, the defence was struck off. In this view of the matter, the impugned order cannot sustain.
10. For the reasons above, this appeal is allowed order, dated 11-7-1997, is set aside and the case is remanded to the learned Additional Rent Controller for I deciding the ejectment petition and also the application for striking off defence, afresh, in the light of observations herein above and by considering the questions and circumstances noted supra. The case shall be finally decided within three months.