Major (Rtd.) A.S.K. SAMAD vs Lt. Col. (Rtd.) A. HUSSAIN And Another

1. ABDUL KADIR SHAIKH, J.-- Facts of this case briefly stated are that by an agreement dated 1-9- 1974 executed by appellant and Begum Altaf Hussain, respondent No. 2 who is the wife of Lt.-Col, (retired)Altaf Hussain, respondent No.1, appellant occupied the demised premises as a tenant on monthly rent of Rs.600. In the lease agreement Begum Altaf Hussain described herself .As the owner of the property it is the case of respondents however, that Lt.-Col. (retired) Altaf Hussain is the owner of the property and his wife had let out the premises when he was out of the country. On account of dispute between the parties appellant started depositing rent in Court after obtaining permission of the Rent Controller in this regard, in Miscellaneous Rent Case No. 953 of 1976.

2. Afterwards respondents filed Ejectment Case No.1823 of 1977 against appellant and during the pendency of these proceedings Rent Controller directed appellant, by the order dated 20-9-1978, to deposit rent from September, 1978 onwards in Court. Appellant however continued to deposit rent in Miscellaneous Rent Case No. 953 of 1976 and not in Ejectment Case No. 1823 of 1977 filed by respondents. Afterwards, on an application under section 16 (2) of the Sind Rented Premises Ordinance, 1979 moved by respondents, the Rent Controller held the appellant guilty for non- compliance of the order dated 20-9-1978, in that, he had failed to deposit rent in Court and directed his eviction from the demised premises by the order, dated 19-2-1981. Appellant's appeal against this order was dismissed by Sind High Court. Leave to appeal was granted by this Court in order to examine the plea raised by the appellant that he was depositing rent in Court regularly in the earlier proceedings between the parties and thus there was no failure on his part to deposit rent in Court; and in any case, the failure, if any was only technical in nature and should not entail the penalty of his eviction from the demised premises.

3. We have heard the learned counsel for the parties and also gone through the record before us. It is the admitted position that appellant was depositing rent in Court regularly, and the only difference is that he was making the deposit in Miscellaneous Rent Case No.953 of 1976, and not in Ejectment Application No. 1823 of 1977. As pointed out earlier, he had himself approached the Rent Controller for making the deposit of the rent in Court due to the reason that the landlady refused to accept the same from him. According to appellant, he is the tenant of respondent No.2, who is wife of respondent No.1, for the' reason that the agreement of lease was executed by her as the owner of the demised premises. The amount of rent deposited by appellant in Court was being withdrawn by respondent No.2 from time to time, and she is also a co-applicant. It is obvious that appellant continued to deposit rent in Court, according to his earlier practice, in Miscellaneous Rent Case No.953 of 1976, and for the only fault committed by him in depositing rent in that case, rather than in the case concerned, namely, Ejectment Application No. 1823 of 1977, he cannot be condemned for having been guilty of disobedience of the order of the Rent Controller, dated 20-9-1978 so as to entail penalty of his eviction from the demised premises.

4. On this view of the case, the appeal is allowed and the judgment of the High Court dated 29-8- 1982 and that of the Rent Controller dated 19-2-1981 are set aside, with the result that the Ejectment Case of 1979 between the parties shall proceed from the stage it was terminated by order dated 19-2-1981 and shall be decided according to law.