' Both the learned counsel were ready to argue the main appeal and therefore, by consent I intend to dispose of the same on merits after having heard both of them.
2. The facts are brief and simple. Admittedly the respondent filed an application for ejectment of his tenant i,e, the appellant on the ground of default, though the ejectment application does not disclose whether the respondent is the exclusive or joint owner of the rented premises. The admitted position appears to be that the disputed rent receipt show that the premises was owned by several persons described as "Nooruddin brothers and sisters" and admittedly the respondent was one of such co-owneRs, The respondent made an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 and in view of the appellant's plea that he had been depositing rent in M.R.C. No,733 of 1994 in Court, the learned Rent Controller called for the report of the Nazir and passed an order, dated 24-4-1995, the operative part of the order read as under-- "From the perusal of Nazir Report and the record available on file, I am of the view that the opponent is not in any arrears of rent, as claimed by the applicant but, however, he is directed to deposit future monthly rem at the rate of 81.247 in Court on or before 10 of each English succeeding month,"
3. It Seems that despite the aforesaid order appellant kept depositing rent in M.R.C No733 of 1994 and the learned Runt Controller by his order dated 13-7-1998 struck off the appellant's defence, holding that Since he had not complied with the rent order, he was liable to be rejected under section 16(2) of the Sindh Rented Premises Ordinance, 1979.
4. Mr. Ali Ahmad Tariq learned counsel for the appellant has argued that the order dated 24-4-1995 of the Rent Controller was somewhat ambiguous in as much as it did not expressly require the appellant to direct future monthly rent in that particular case or that in particular Court and he was only required to deposit such rent in Court, therefore, according to the bona fide misunderstanding the appellant thought that continue deposit of rent in the M.R.C. Would be sufficient compliance of the rent order.
5. In support of his contention learned counsel relied upon two judgments of the Honourable Supreme Court in Maj. (Retd.) A.S.K. Samad v. Lt.-Col. (Retd.) A. Hussain 1987 SCMR 1013 and Abdullah Ghagro v. Tahira Begum 1988 SCMR 970, wherein it was held that when a tenant deposited the amount by mistake in a miscellaneous rent case instead of an ejectment application, as long as he was out of pocket of the amount payable non-compliance of the rent order could at best be treated as an irregularity or a technical default and the penal consequences of section 16(2) could not ensue. Learned counsel argued that in cases whereas tenant was depositing rent in favour of somebody other than the landlord in a miscellaneous case perhaps he could be held guilty of contumaciously depriving the landlord of the rent payable and section 16(2) could be applied, but it was not so in the instant case.
6. On the other hand, Mr. S.M. Haider, learned counsel for the respondent placed reliance upon a more recent unreported judgment of the Honourable Supreme Court in Aleemuddin v. Muhammad Ameer Gazdar (C.P.L.A.
No,715-K of 1998, decided on 5-8-1999). In this case it was held that if the deposits in the M.R.C. Have not been made contumaciously but substantially on account of an earlier understanding or other just or lawful cause, a tenant may not be liable for the penal consequences of section 16(2). However, if no explanation for the deviation has been furnished the position might be other. Mr. S.M. Haider further relied upon the following observations of Mr. Wajihuddin Ahmad, J. In the aforesaid matter, which according to him, were fully applicable in the above case:-- "Besides, in spite of the petitioner's order of eviction, upon striking off his defence and the affirmation of that order in the F.R.A., the petitioner, upto the level of this leave petition, has, unaccountably, continued to deposit the rents in the M.R.C. In preference to the main rent proceedings, as required by the Controller. This fact, unless duly explained, which is not the position here, may not go unnoticed in order to establish that the petitioner has had scant respect or regard for the Court orders and does not deserve to be accorded any reprieve.
' The petition is dismissed but, in the interest of justice, six months' time is allowed to the petitioner to vacate provided that the petitioner continues to deposit rents, accruing due in the meantime."
' With profound respects I am unable to agree with the contention that the facts of this case are on all fours with those of the above precedent. The admitted position appears to be that the appellant was a tenant of a number of people, the respondent being one of them. Indeed he could file an application for ejectment on his own it could not seriously object to rent being deposited in the joint name of owners/landlords. Perhaps to avoid the controversy, the appellant kept on depositing rent in the M.R.C. Particularly when the order of the Rent Controller, admittedly, was not very explicit. Moreover, I am further of the view that in the above stated precedent their Lordships did not intend to deviate from the principles laid down in the two cases cited by Mr. Ali Ahmed Tariq. In the case of Aftab Ahmad Khan v. Zaibunnisa 1998 SCMR 2085 the aforesaid principle has been reiterated. Indeed the consequences of section 16(2) of the Sindh Rented Premises Ordinance, 1979, being penal, they should not be applied to technical default. This appeal is, therefore, allowed and the matter is remanded to the learned Rent Controller to decide the same in accordance with the law. The matter is very old, the party will appear before the Rent Controller on 7-2-2000 and the Rent Controller may decide the matter within three months thereafter. By consent it is agreed that the appellant will deposit rent with the Rent Controller in Rent Case No,628 of 1994 after the amount deposited in M.R.C. Has been exhausted.