1. G. SAMAR SHAH, J. This leave petition, which is meant to impugn the legality of the judgment of a learned Single Judge of the High Court of Sind, at Karachi, arses in the following circumstances :- The petitioner herein is the tenant of respondent respecting residential premises bearing No. 72- S/2, Pakistan Employees Co-operative Housing Society Limited, Karachi, at the rate of Rs. 700, per month as rent. On 28-5-1973, however, the respondent herein filed against him in the Court of Rent Controller, Karachi, an application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) for his eviction on four grounds :- "(1) that he had defaulted in paying rent ;
(2) that he had converted the use of the residential premises into com--mercial premises ;
(3) that he had made unauthorised alterations therein ; and
(4) that he had sub-let a portion of the said premises without his consent.
2. "Ad interim stay. Notice. The appellant will continue to deposit the monthly rent before the 15th of every calendar month in the Court of Rent Controller, Karachi."
3. On 25-10-1976, when the said application was finally heard in the presence of the learned counsel for both parties, the interim stay order of the High Court, dated 9-8-1976, was confirmed as under "Since the question of ejectment is involved and the interim stay has been granted I confirm the same on the condition that the appellant shall continue to deposit rent before 15th of each calendar month in the Court of Controller. Mr. Qazilbash, Advocate states. That 4 years have already been spent in litigation in lower Court and therefore this case may be ordered to be fixed at an early date. Let it be given preference when the time turn of 1976 cases comes."
4. During the pendency of the said appeal in the High Court, however, respondent herein on 4-10-1977 filed an application praying therein that since the petitioner had failed to deposit the monthly rent within time he must be held to have contravened the order of the Court, dated 9-8-1976 and consequently his defence was liable to be struck off. However, in the affidavit filed by him, the petitioner denied to have committed any default in depositing the monthly rent or to have contravened any part of the order of the High Court. To order to ascertain the correct position, however, the parties herein filed from the Court of Rent Controller an agreed statement of account before the learned Judge which being relevant may as well be reproduced :- "11-8-76 Rs.700 14-10-76 Rs. 1,400 26-11-76 Rs. 1,400 9-2-77 Rs, 2,100 3-5-77 Rs. 1,400 9-7-77 Rs. 1,400 9-8-77 Rs.700 3-10-1/7Rs, 1,400 6-11-77 Rs.700."
5. Now the contention of the petitioner in the High Court was that according to the said statement of account be had not only committed no default in depositing the monthly rent but actually had continued to deposit the same much in advance of the date prescribed in the Court's order dated 9-8-1976. It seems that the learned Judge was not impressed with the said contention of the petitioner, as by scrutinising the said statement of account, the learned Judge observed that "even if for the sake of argument it is assumed that the monthly rents were deposited during the currency of the month for which they were paid, the fact that rents for two months at a time were deposited beyond 15th of the second month is itself sufficient to hold that the appellant was guilty of default.
6. But I can see of no conceivable explanation for three months' rent to be deposited in lump sum which apparently cannot be paid in advance for two months even if the entire account is taken into consideration". As a sequal to these observations, therefore, the learned Judge in Chamber held the petitioner grossly negligent or a wilful defaulter and consequently struck off his defence and directed him to hand over to the respondent the possession of the suit house within one month. It is in this background that the petitioner has come up to this Court praying for -the grant of leave to appeal against the judgment of the High Court.
7. We have heard Mr. A. K. Lakhani, the learned counsel for the petitioner, and Mr. M. S. Qizalbash, the learned counsel who has filed caveat on behalf of the respondent. The grievance of Mr. Lakhani is that the learned Judge in the High Court seems to have misconceived the factual as well as the legal position with the result that the impugned order passed by him would be wholly illegal. There seems to be force in this contention. It is nobody's case that during the pendency of the appellate proceedings in the High Court any fresh order bad been passed under section 13(6) of the Ordinance directing the petitioner to deposit in Court or otherwise, the monthly rent of the premises. In actual fact that only order which was passed in this case by the High Court was on the miscellaneous application of the petitioner under Order XLI, rule 5 read with section 151, C. P. C.
8. Directing the stay of the operation of the order of learned Additional District Judge on the condition that he would continue to deposit the monthly rent before the 15th of ever calendar month in the Court of the Rent Controller. Assuming for the sake of argument, therefore, that that the petitioner bad defaulted in depositing the monthly rent within time, even then the only order which could have bee competently passed by the High Court would be to dismiss his application under Order XLI, rule 5, C. P. C. And not the one by which his defence was struck off and he was directed to hand over to respondent the vacant possession of the suit house.
9. During the course of arguments on this legal aspect of the case, Mr. Qizalbash, the learned counsel for the respondent realised that the petitioner seems to have made out a case for leave to appeal against the impugned judgment of the High Court. He, therefore, contended that if leave was going to be granted to the petitioner then the petition may be converted into appeal and the same may be disposed of right away, as the case has already suffered considerable delay to the prejudice of his client. On our part we are satisfied that in view of the above legal position it is a case in which leave has to be granted to the petitioner. In this view, we would grant leave to the petitioner as prayed, convert the petition into an appeal and proceed to dispose of the same by this judgment.
10. The learned Judge in the High Court, has, in view of the agreed statement of account produced before him by the parties, held the petitioner to have defaulted in depositing the monthly rent in the Court of Rent Controller by the specified date as mentioned in the Court's order, dated 9-8- 1976. In reaching this conclusion, the learned Judge seems to have construed the said order to mean as if it also was applicable to the antecedent period, namely, the month of July 1976. But in this assumption with respect he was evidently mistaken. It is conceded before us that neither in the High Court nor in the Court of the Additional District Judge was any order passed under section 13(6) of the Ordinance and so the default of the petitioner to deposit in Court the monthly rent of the suit house by a specified date will be out of the question. It is true that an order under section 13(6) of the Ordinance had been passed by the learned Rent Controller. But after the final disposals of the case by him the said order would stand merged in his judgment and thus lose its separate identity. In this view of the matter, therefore, the learned Judge in the High Court had no jurisdiction to take into account against the petitioner any default committed by him before 9-8-1976 when his appeal against the judgment of the Additional District Judge was admitted and on the miscellaneous application filed by him under Order XLI, rule 5, C. P. C., the operation of the said judgment had been stayed subject to his depositing in the Court of Rent Controller the monthly rent before the 15th of each calendar month. If any authority is needed in support of this conclusion, it would suffice to reproduce the following dictum from the judgment of this Court in the case of Abdul Ghafoor v. Ahmad Kunhi (PLD 1969 SC 424) :- "It will be seen that under the first part of subsection (6) of section 13, the Rent Controller while directing deposit of arrears and the monthly rent fixed the amounts in regard to both tentatively if there is a dispute. Under the second part which may either be at the stage when the default is committed and the question of striking off the defence arises or when the proceedings are disposed of he is finally to determine the amount of rent due. In doing so he not only determines the period for which rent is due but also the rate at which the rent is payable.
11. He is then to direct that the amount so determined be paid to the landlord subject to the adjustment of the approximate amount deposited by the tenant. It is, therefore, evident that the order passed under the first part merges in the order passed under the second part. In this view it cannot be said that the former remains effective even after the latter order is passed."
12. Now by going through the agreed statement of account of the parties, which has been reproduced in the earlier part of this judgment, it is clear to us that the appellant had faithfully deposited the monthly rent of the suit house according to the directions contained in the Court's order dated 9- 8-1976. According to the plain tenor of the said order, the petitioner was obliged to deposit in the Court of Rent Controller the rent of August by 14-9-1976. But in actual fact he had deposited the same in advance on 11-8-1976. Similarly the rent of September was to be deposited by him by 14- 10-1976 and on that date he not only deposited the same but also deposited the rent for the mouth of October in advance. Rent of November was to be paid by 14-12-1976 but he paid the same in advance on 26-11-1976 when he also paid in advance the rent for the month of December which was due to be deposited by him 14-1-1977. The rent for the month of January 1977 was again deposited by him in advance on 9-2-1977 when he also deposited in advance the rent for the months of February and March 1977. The rent for the month of April 1977 was due to be deposited by 14-5-1977 but he deposited the same in advance on 3-5-1977 alongwith the rent for the month of May 1977 which was due to be deposited by 14-6-1977. The rent for the months of June and July 1977 was similarly deposited by him in advance on 9-7-1977 and so was the rent for the months of August and September 1977 which he respectively deposited on 9-8-1977 and 3-10-1977. The rent for the month of October 1917 was due to b.- deposited by him by 14-11-1977 but actually he deposited the same on 3-10-1977. Similarly the rent for the month of November 1977 was due to be deposited by him by 14-12-1977 but he actually deposited the same in advance on 6-11-1977. Now this being the scrutiny of the said statement of account, the learned counsel for the respondent was unable to support the contrary finding of the High Court nor indeed did he evince any serious intention to qu-.Stion our understanding of the said statement.
13. We are, therefore, of the view that the impugned judgment of the High Court is legally as well as factually not sustainable. This appeal is, therefore, allowed the judgment of the High Court is set aside and the case remanded to the High Court with directions to dispose of the appeal of the appellant herein on merits. In the circumstances of the case, however, the parties shall bear their own-costs. s. A. H.
14. Appeal allowed.