MUHAMMAD YOUSUF vs MAQBOOL AHMAD

1. ' This appeal is directed against the order of the learned Controller, whereby application, under section 16 (2) filed by the appellant, was dismissed. The appellant had filed an application for ejectment of the respondent on the ground of default in payment of rent. In these proceedings an application under section 16(1) was filed to which the respondent replied that he has been regularly depositing rent in Misc. Case No. 3272/80. The learned Controller ordered to deposit Rs.3,750 within two months and the amount deposited in Miscellaneous Case was to be adjusted towards the arrears. In respect of future rent from May, 1981 the respondent was directed to deposit the same in the case on or before tenth of every succeeding month. The appellant filed an application dated 9- 2-1982 alleging that the respondent has not deposited the rent from May, 1981 onwards. The respondent filed objections in which he pleaded that he was present in Court, when the order for deposit of rent was passed, and he was informed that the amount deposited in Miscellaneous Rent Case will be adjusted towards the arrears of rent and the future rent was to be deposited every month in Court, and there was no dispute about the rate of rent. As the respondent was depositing rent regularly, he continued to deposit in the Miscellaneous Rent Case. When he was informed by his Advocate about the filing of application under section 16(2) he started to deposit rent in the ejectment case. The learned Controller accepted the explanation offered by the respondent and dismissed the application.

2. 'Mr. Naraindas, the learned counsel for the appellant has contended that as the Controller had directed the respondent to depositing the rent in the ejectment case, the fact that he has instead deposited in the Miscellaneous Rent Case, shows that he has not acted bona fide and in good faith and therefore, he should be termed as a defaulter. It seems that the respondent had regularly been depositing the rent in a Miscellaneous Rent Case even before ejectment case was filed. His understanding of the order was that he should continue to deposit the rent. No doubt there was a direction by the learned Controller to deposit the rent in the ejectment case, but the respondent seems to have either mis-understood it or overlooked this aspect of the order, and continued to deposit rent in the Miscellaneous Rent Case. The appellant was aware of the pendency of the Miscellaneous Rent Case in which the arrears had been deposited and the learned Controller had given adjustment of the arrears deposited in that case. Another factor which seems to indicate the bona fides of the respondent is that the moment he came to know the objection raised by the appellant, he started depositing the rent in the ejectment case. Therefore, the only objection that can be taken is that instead of deposit the rent in the ejectment case, it has been deposited in the Miscellaneous Rent Case. There is no grievance that the rent has not at all been deposited, anywhere or it has been deposited in some new proceedings, unknown to the appellant. The respondent seems to have explained the matter sufficiently to show his bona fides, and therefore, the technical default pointed out by the appellant cannot be made a ground for striking off the defence. The respondent has continuously been depositing rent in Court, and unless a contumacious conduct or bad faith is pointed out it is not sufficient merely on such technical defaults, which in my opinion has sufficiently been explained, to strike off the defence.

3. ' The appeal is therefore, dismissed.

4. Rent .