1988 PLP 970 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑Both these petitions are for leave to appeal from a consolidated judgment of Sind High Court dated 15‑11‑1983 by which two separate appeals filed by the petitioners were dismissed, and the orders of their eviction from the demised premises, dated 23‑9‑1982 passed by the Rent Controller were upheld.

2. Facts briefly stated are that the Rent Controller, Karachi directed petitioners by order dated 20‑4‑1982 passed in each case to deposit rent in Court from May, 1982 onwards, and later by the order, dated 23‑9‑1982 directed their eviction for the reason that according to him, petitioners had failed to comply with the earlier order passed by him. In defence petitioners raised the plea that they were regularly depositing rent in Court in Miscellaneous proceedings between the same parties, and their failure to deposit rent in the specific case numbers, when actually payment was duly made in Court was a mere irregularity. The Rent Controller rejected this plea and the High Court upheld his view, and dismissed petitioners appeals as aforesaid, and it is in these circumstances that petitioners now seek leave to appeal.

3. After hearing the learned counsel for the parries in the light of the record before us we are impressed with the plea raised by the learned counsel for the petitioners that the noncompliance of the order of the Rent Controller, dated 20‑4‑1982, if any, was just a technical one, rather than real, for as a matter of fact petitioners were depositing rent regularly in Court; only mistake they committed was that they continued to deposit rent in the connected miscellaneous proceedings between the parties, and not under the number of the particular cases in which the orders dated zu‑4‑1984 were passed, Since petitioners were out of pocket of the amount of rent payable by them which they actually deposited in Court with the intention that the landlord may withdraw the amount, if he so desires, and there is no complaint that the landlord could not do so,. petitioners cannot be condemned as guilty of not depositing rent in Court. They had actually deposited the rent in Court but made the mistake of l depositing in one case and not the other and this amounts to an irregularity rather than penal non‑compliance of the order of the l Rent Controller dated 20‑4‑1982.

4. For these reasons, we convert these petitions into appeals and allow these with the result that the impugned judgments of the High Court as well as the order dated 20‑4‑1982 passed by the Rent Controller in each case are set aside. The cases are, however, remanded to the Rent Controller for further proceedings in accordance with law from the stage when the proceedings in the cases were terminated with the order, dated 23‑9‑1982. The parties are left to bear their own costs. . M.I./A‑203/S Order accordingly.