1. ' ZAHID HAMID, J.---By this singular judgment the cross Constitutional Petitions Nos. 986/2009 and 951/2009 filed by the landlord and the tenant in F.R.A. No,225 of 2008 against each other aggrieved by the findings adversely affecting both of them on issues of personal bona fide requirement and default respectively shall stand disposed of.
2. ' The common facts are that Muhammad Irfan filed application under section 15 of Sindh Rented Premises Ordinance, 1979 inter alia against Haji Abdul Ghani, hereinafter called the landlord or the new landlord as the context would permit and the tenant respectively, for his eviction on the ground of subletting a portion, personal bona fide requirement of the shop with the "adjacent other accommodations" and on the ground of default in payment of rent since February, 1996.
3. ' The factual background is that an application under section 15 of Sindh Rented Premises Ordinance, 1979 was filed stating, "that the applicant wants to establish his own business of Electric goods at high level with the help and cooperation of his father having sufficient experience in field and that he wants to start his practical life in presence, and life time, of his father and thus requires the case premises together with the adjacent other accommodations for personal bona fide use in good faith for which he has no other place except the case premises which is not only suitable one but also situated adjacent to the business of his father at ideal location".
4. ' Second ground which was urged for eviction was default. In this respect a notice dated 29-6-2007 under section 18 Sindh Rented Premises Ordinance of 1979 which was served on the tenant was referred to wherein it was stated that the landlord had become the new owner w.e.f. 15-6-2007 of Jewan Jee Building on plot No, 35, Sheet No, SR-7 Block-B., M.A. Jinnah Road, Karachi and as such the tenant carrying business under the name of Messrs Star Light Corporation was called upon to pay monthly rent of the case premises @ Rs.565 with arrears due to the former landlord from February, 1996 onwards at the aforesaid rate. Along with this notice a letter of attornment was also sent to the tenant inter alia by (1) Abbas son of late Jeevanjee Abul Hussain, (2) Juzer son of late Jeevanjee Abul Hussain, (3) Mr. Abdullah son of late Jeevanjee Abul Hussain, (4) Mr. Burhan-uddin previously known as Rizwan son of Baqar Hussain and (5) Mrs. Perveen wife of Muhammad Hussain informing him that Jewan Jee building had been sold to the new landlord Muhammad Irfan son of Abdul Karim and that a General Power of Attorney in favour of his father Abdul Karim was also executed. It was specified in this letter of attornment that the rent @ Rs. 565 since February, 1996 had remained unpaid and the tenant was informed that in future the new landlord would be dealing in the capacity of the owner being fully authorized and entitled to receive the outstanding rent and take legal action against the tenant in the matters of default in payment of rent.
5. ' Ground of subletting was also pleaded but was not pressed later.
6. ' The tenant and the alleged sublettee filed their written statement on 8-11-2007 wherein existence of relationship between the parties as landlord and tenant under section 2(j) of Sindh Rented Premises Ordinance, 1979 was denied. It was asserted that under the Transfer of Property Act the new landlord did not fall within the purview of owner and as such no right, title or interest in the case premises was created in his favour on the basis of a mere agreement to sell. It was denied that the new landlord was the owner of premises and that the shop had been acquired on payment of huge Pugri amount. It was also denied that the opponent No, 2 in the Rent Case was a sublettee. It was refuted that any portion of the case premises had been sublet and that the alleged sublettee was paying monthly rent to the tenant or was in a partnership. It was stated that previously existing partnership had already been dissolved before filing of the ejectment application and that the notice under section 18 of Sindh Rented Premises Ordinance, 1979, was mala fide. It was peculiarly stated that when the landlord did not fall within the statutory definition of the term "landlord" no question could arise as to payment of rent to him even after service of notice under section 18 of SRPO, 1979. It was denied that the tenant had committed any default with effect from February, 1996 in payment of rent. It was further pleaded that the previous landlord refused to accept the rent from the tenant and he therefore in the year, 1996 remitted rent to the former landlord through Money Order No, 1628 amounting to Rs. 2260 and the said money order was returned and that subsequently he filed MRC No, 629/1996 and started depositing monthly rent of the case shop under Ledger No, 141/96 regularly and that for the period from July, 2007 to June, 2008 a sum of Rs. 6780 was already deposited in favour of former landlord in advance when the new landlord served him with the above notice. It was denied that the landlord required the case premises together with "adjacent accommodations" (plurality of need) for his personal bona fide requirement as alleged and that the landlord could not seek eviction being not entitled under section 15(2) of SRPO 1979 to do so and further that he himself was already running his business under the name and style of Pak Electrical Company adjacent to the rented premises in the same building. Finally, therefore, it was prayed that the ejectment application be dismissed with compensatory cost.
7. ' After the parties had led their evidence the learned VIIth Rent Controller, Karachi, South vide his judgment, dated 31-10-2008 allowed the ejectment by holding that here did exist relationship of landlord and tenant between the parties and also upheld the plea of personal bona fide requirement. The second ground of subletting or parting with possession was answered against the landlord whereas the issue of default in payment of rent was answered in favour of the landlord for the reason that even after service of notice under section 18 of SRPO the tenant continued to deposit the rent in favour of previous deceased landlord in MRC No,629 of 1996. As such the learned Controller passed eviction order and the tenant was given 40 days' time to handover the vacant possession of the premises.
8. ' Aggrieved by the aforesaid judgment the tenant filed First Rent Appeal No, 225 of 2008 under section 21 of SRPO 1979 assailing the said judgment. In the Memo of F.R.A. Details of deposits of rent under MRC No, 629 of 1996 in favour of the fo-mer landlord by admitting default, were given starting from 17-4-1996 ranging from Rs.565 to Rs.6780 upto July, 2009.
9. ' On the question of bona fide personal requirement it was pointed out in the F.R.A. By the tenant that the landlord did not examine his father to clarify and disprove the plea of the tenant in written statement about the business being run by the landlord under the name and style of Pak Electrical Company and even in the ejectment application the landlord had shown his office as Pak Electrical Company opposite District and Sessions Court near KMC Office M. A. Jinnah Road, Karachi and further the landlord got three shops from different tenants of the same building and started business under the name and style of (i) K. K. Electric (ii) S K Electric and (iii) Pak Electrical Company which reflected upon the bona fide personal requirement for even otherwise the landlord owned seven shops in the subject building and that in cross-examination of the tenant not a single question was put to him on the denial of alleged personal requirement though he had stated specifically that the landlord was running his business under the name of Pak Electrical Company adjacent to the rented shop and had sufficient accommodation in the same building.
10. ' The landlord also assailed the findings of the learned Rent Controller on the question of subletting but it was admitted before this Court that such F.R.A. Was withdrawn. Be that as it may, the F.R.A. No, 225 of 2008 filed by the tenant was disposed of by learned VIIth Additional District Judge, Karachi, South vide judgment dated 2-12-2009. The learned appellate court held after discussing the facts and submissions of the learned counsel that the judgment of the Rent Controller so far as the ground of default in payment of rent was concerned was legal and could not be interfered with as it had been brought on record that the tenant deposited the rent in MRC in the name of previous deceased landlord while no rent was deposited in the name of the new landlord in spite of the knowledge of the institution of the rent case against him, whereas on the question of personal bona fide requirement it was held that "the landlord failed to establish his case on personal use except advancing the vague plea raised in application as well as in affidavit in evidence".
11. ' Aggrieved by the judgment dated 2-12-2009 on the issue of personal use the landlord filed C.P. No, S-986 of 2009 whereas the tenant being aggrieved of the findings against him on default filed C.P.
12. No, S-951 of 2009 in this Court.
13. ' In the instant proceedings the tenant filed a counter affidavit with several documents and pleaded that other shops had fallen vacant during the pendency of ejectment proceedings and that such subsequent events could be taken into consideration. In affidavit in rejoinder filed later on the asking of this Court the landlord disputed the claim but failed to clarify as to how many out of total seven shops were utilized and in what manner and how many shops fell vacant during the pendency of proceedings and how many were actually required to be amalgamated into one for the purpose of establishing the business at "high scale" as alleged. This was all the more necessary when the case of the landlord was that the case shop with other "adjacent accommodations"
14. (plurality of need) was required in good faith without mentioning how many and in what state all or those required were lying at the relevant 'time.
15. ' The learned counsel for the parties were heard. Few days after the short orders were passed synopsis of written arguments were filed by Yawar Farooqi learned Advocate on behalf of the landlord wherein reliance has been placed on case law viz:--
(i) PLD 1982 SC 465 Allah Din v. Habib, (ii) 1996 CLC 949, Karachi Feroz Khan v. Syed Zoha, (iii) 2001 SCMR 1140 SC Pakistan State Oil Company Ltd. v. Pirjee Muhammad Naqi, (iv) 1992 CLC 2495 Karachi Munawar Hasan v. Badiul Hasan, (v) 1986 SCMR-751 Major (Retd.) Muhammad Yhousaf v.
16. Mehraj-ud-Din and others, (vi) 1986 SCMR 753 and Mst. Nazir Begum v. Iqbal Hussain Qureshi and others, (vii) 1995 CLC 457 Karachi.
17. ' The above case-law is mostly on the principles enunciated by the Hon'ble Supreme Court on when the statement of landlord on oath if consistent with the plea and not shaken in cross- examination or demolished in rebuttal is to be considered sufficient to prove personal bona fide need of the landlord; burden of proof on nonpayment of rent; three modes of payment of rent provided under section 10 of Sindh Rented Premises Ordinance, 1979; default in payment of rent is serious matter because it abridges the right of the landlord and there can be no equity or waiver; obligation to offer rent to the landlord and resorting to other modes of payment/ remittance through money order or deposit with Rent Controller; notice by new landlord not essential for establishing relationship of landlord and tenant; burden of proof on tenant to prove payment of rent; definition of "good faith" an act done honestly whether it was done negligently or not; non- disclosure of details of shops owned by the landlord in eviction application not required; desire of landlord to establish a departmental store not to be ruled out; landlord being owner cannot be deprived of his rights and interest to use his property in a manner more suited to his requirement; landlord would have privilege to choose anyone of his properties for self-use if he possesses more than one premises; and genuine need of premises to be established.
18. ' Other precedents already referred to by Ms. Lqra Salim learned counsel for the landlord, in her arguments in support of her submissions which would be considered later, with relevant observations are given below: - ' 1986 MLD 722 (Muhammad Raft and others v. Khalid Rauf Ahmed and another)
19. "The contention was repelled by placing reliance upon Mst. Sughran and others v. Ehsanul Haq Bhalli, Additional District Judge, Jhang and another 1982 SCMR 1164, where it was ruled that if tenancy is held proved vis-a-vis the tenant's denial, forfeiture of his defence even on other points was rather the natural result. There could be no escape from applying this authority to the instant case as the petitioners knowing not even their landlord for years together were just cutting their own size."
20. ' 1991 MLD 1340 (Karachi) (Sultan Ahmed v. Syed Wahid Hussain)
21. "Applying the above principle to the facts of the instant case, it is clear to me that upon asserting in the evidence that he has not received the rent for disputed period, the respondent had successfully discharged the burden of proof and the onus was shifted to the appellants. If, therefore, the evidence of the two parties consisting of oral assertion testifying that they had paid rent but no receipts were issued to them, the issue could only be decided on the ground that the tenants had failed to discharge the onus to prove the factum of payment.
22. ' The appellants asserted that they deposited rent in Miscellaneous Applications. It is well- established legal position that the deposit of rent after due date is of no use to the tenant. In the instant case, the appellants have not established that they deposited the rent within due date. The conclusion is that the respondent has successfully established that the appellants had committed default in the payment of rent and are liable to be evicted from the premises. Having gone through the entire evidence on this issue, I see no valid reason to differ from the finding arrived at by the learned Controller that the appellants had committed default in payment of rent for disputed period."
23. 1982 SCMR 1120 Muhammad Anwar through his legal representative v. Abdul Shakoor "Appellant, held, estopped to repudiate respondent's title as his landlord."
24. ' 1980 SCMR 886 Muhammad Yousuf v. Khalifa Asghar Hussain "Tenant denying title and interest of landlord and relationship of landlord and tenant between parties-No specific and pointed denial in reply to ejectment application about default alleged and made basis of eviction-Tenant taking convenient pleas in appeal at various stages, at times found contradictory-- Order of ejectment, maintained by High court upheld", ' 1979 SCMR 443 Muhammad Shah Alam v. Muhammad Abdul Ghafoor.
25. "Furthermore the learned Rent Controller as well as the Additional District Judge both found the conduct of the petitioner as inequitable. The finding recorded by them is that he even denied the title of the respondent wholly contumaciously and thus disentitled him from seeking any equitable relief in the proceedings. The fact that this finding is borne out from the allegation made by him in the written statement, we are satisfied that the petitioner rightly lost the sympathy of the Court."
26. ' 1986 CLC 1770 (Karachi Pakistan Institution of International Affairs, Karachi v. Abbas Ahmed Khan "This contention is misconceived. The eviction application was filed on 3-12-1974 and the cheque was issued on 1-5-1975. I am of the view that the liability to ejectment arises on account of the commission of default in the payment of rent and if the landlord accepts rent for a period at date subsequent to the filing of this application, by this act the liability cannot be waived."
27. ' PLD 2006 Supreme Court 549 Amin and others v. Hafiz Ghulam Muhammad and others "Perusal of the above judgments shows that in case of denial of landlord's title in both the situations i,e, when the tenant sets up his own title or when he sets up somebody else's title, the principle of Article 115 of the Qanun-eShahadat Order was applied and the tenant was ordered to be ejected. The reason therefore, is not far to seek. In all the judgments, dominant feature has been that in ejectment matters, the question of title is not relevant."
28. ' PLD 1978 Karachi 149 (Syed Shafiuddin v. Abdul Hakim Khan)
29. "The rent sent through money order during the pendency of the rent application is of no consequencebecause any subsequent payment of rent does not have the effect of washing out the default."
30. ' Mr. Mian Mushtaque Ahmed, learned counsel for the tenant in support of his submissions which shall be dilated hereafter, has relied on 2005 CLC 1996 Messrs Sattar Brothers v. Messrs Hanif Jeed and Sons. In this case the emphasis was that only the owner could seek eviction on the ground of hir personal bona fide requirement.
31. ' He next referred to 2006 SCMR 152 Allies Book Corporation through L.Rs. v. Sultan Ahmed and others. The relevant observations made in this case by the Hon'ble Supreme Court are given below:-- "We are mindful of the settled law that it is the prerogative of the landlord to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of the landlord to give plausible and satisfactory ground/ explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use. From perusal of the material on record it transpires that not a single word has come from the respondent as to why shop on the first floor, which is in their occupation would not be sufficient and would not meet the demands of the business sought to be established by respondent Mansoor Ahmed. With regard to Shop No,6 on the ground floor the respondents even did not make a mention of the same having fallen vacant and let out during the litigation going on between the parties. The respondents instead of providing plausible, satisfactory and cogent grounds for not occupying the shop which had become available for occupation did not even disclose the factum of a shop on the ground floor having become vacant which completely negated their good faith and bona fide. This Court in the case of Mst. Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 categorically pronounced, that concealment by the landlord of one or more premises having fallen vacant during pendency of the ejectment proceedings would reflect adversely on the bona fide personal need and good faith of the landlord and would be detrimental to his case These were very material facts in establishing the good faith and bona fides of the respondents for their bona fide personal requirement for occupation and use of the demised shops and by suppressing/ concealing them they had completely demolished their case that the demised shops are required by them for bona fide personal occupation and use"
32. ' The learned counsel further referred to 2000 SCMR 542 (Shahid Nadeem and others v.
33. Muhammad Shafi) In this case the honourable Supreme Court observed, "It transpired that during the pendency of the first appeal two shops in the same premises had fallen vacant which were let out by the petitioner but no explanation was offered by him indicating that the said shops were not suitable for his requirement. In fact it further came to light that the fact that two shops had fallen vacant after their vacation by the original tenants was brought to the notice of the Appellate Court but the petitioner resisted an attempt by the respondent to lead evidence in this behalf and explain the circumstances. In fact, as is indicated by the judgment of the High court, it had been denied by the petitioner before the First Appellate Court that the shops had fallen vacant during the pendency of the first appeal. Even before the High Court the situation was not different but, as has been observed by the learned Judge in Chambers, subsequently the petitioner admitted that the said shops had fallen vacant during the pendency of the first appeal. This led the learned Judge in Chambers to hold that the petitioner had failed to establish his good faith or bona fide as required by law which resulted in allowing of the respondent's appeal and dismissal of the petitioner's ejectment application.
34. ' We have however, perused the various orders passed by the Courts below and find that the petitioners owned numerous shops in the building and during the pendency of these proceedings got vacated some shops which were let out to tenants. In Post-remand proceedings the petitioners had opportunity to lead evidence to show that the shops having fallen vacant during the pendency of the ejectment proceedings were not suitable for their use but led no evidence in this behalf. The perusal of the order of Rent Controller shows that the evidence produced by the petitioners was vague and fell short of proving their bona fide personal need for the shop in question.
35. ' Mr. Mian Mushtaq Ahmed learned counsel for the tenant also relied on 1995 SCMR 146 Abid Masood v. Dilshad Khan. In this case it was held that where the landlord owns numerous shops in the building and during the pendency of the proceedings got vacated some shops which were let out to tenants and when in post remand proceedings the landlord despite of having availed the opportunity did not lead any evidence to show that shops which had fallen vacant during the proceedings were not suitable, it was held that the landlord fell short of proving his bona fide personal need for the shop in question.
36. ' The learned counsel further relied upon 1991 CLC 1902 (Karachi) (Fasahat Ali v. Mst. Noor Jehan Begum) wherein it was held that the landlord has not merely to establish a case of personal need but had also to show that the requirement or need is an honest or bona fide one.
37. ' The learned counsel finally relied on 1991 SCMR 2300 (Mst. Nur Jehan Begum through legal representatives v. Syed Mujtaba Ali Naqvi) and PLD 2003 (Karachi) 691 (Jehan Khan v. Province of Sindh and others) wherein statement not challenged in cross-examination and statement not controverted in affidavit-inrejoinder were accepted respectively.
38. ' Having taken note of the case-law cited by the learned counsel for the parties the proceedings may now be analyzed for determination of the questions involved in the light of admissions, facts, attending circumstances and submissions of the learned counsel.
39. ' CONCLUSIONS ' On bona fide personal use the case as pleaded in oara 6 of the eviction application dated 26-7- 2007 is that:-- "That the applicant wants to establish his own business of Electric goods at high level with the help and cooperation of his father having sufficient experience in field. He wants to start his practical life in presence, and life time, of his father and thus requires the case premises together with the adjacent other accommodations for personal bona fide use in good faith for which he has no other place except the case premises which is not only suitable one but also situated adjacent to the business of his father at ideal location."
40. ' In affidavit in evidence the landlord to support the above plea stated as follows:-- "I say that I want to establish my own business of Electric goods at high level with the help of my father having sufficient experience in the field. I want to start my practical life in the life time of my father and therefore I require the case premises together with the other adjacent accommodations (plurality of need) for my personal bona fide need in good faith for which I have no other place except the case premises which is not only suitable but also situated adjacent to the business of my father at an ideal location. I vehemently deny the contention of the opponent that I am not the owner of the premises. I say that the business run under the name and style of Pak Electrical Company is not owned by me but my father is the owner thereof. I have no business of my own."
41. (Expression within parenthesis above is mine)
42. ' In cross examination the landlord deposed as follows:-- "It is correct to suggest that we own 7 shops in the subject building. It is incorrect to suggest that two shops in the said building are in my possession. It is incorrect to suggest that I am doing the business in name of Pakistan Electric in the subject building. I am not use to assist my father in his business. It is incorrect to suggest that my father is doing business in the shop owned by him. It is incorrect to suggest that I am already doing business and want to give the case premises on pugri after getting it vacated."
43. ' The tenant on the other hand in the written statement stated that the applicant himself was running his business under the name and style of Pak Electrical Company adjacent to rented shop in the same building and that he could not file ejectment application being not the owner. He further denied that the landlord wanted to establish his own business of Electronic goods at high level with the help and cooperation of his father or that he wanted to start his practical life during the lifetime of his father as alleged it was also denied that the landlord required the rented premises together with other adjacent accommodations. (plurality of need).
44. ' In his affidavit in evidence the tenant deposed that the landlord did not require the rented premises as he was already running business under the name and style of Pak Electric Company and that he was possessed with other sufficient accommodation in the same building as owner.
45. However in cross-examination not a single question was put to the tenant on his denial of personal bona fide requirement of the shop or availability of other accommodations and as such failure to question the denial of personal requirement was ushered vehemently for judicial appreciation.
46. On bona fide personal requirement it is pointed out that the tenant deposed that the landlord was already running business under the name and style of Pak Electric Company adjacent to the rented premises and he therefore did not require the same for his personal bona fide use and that he was already possessed with other sufficient accommodation in the same building. Such denial of personal bona fide requirement by the tenant in his affidavit in evidence was not challenged at all in cross-examination whereas in cross-examination of the landlord he stated that the rent case was filed on 27-7-2007 after under an agreement to sell dated 29-5-2007 he had acquired the case building and the sale deed was not registered till filing of the case and that it was registered on 24-11-2007 and that he owned seven shops in the aforementioned building of which two were in possession of his father where he was doing the above business. In contrast the landlord in his affidavit in evidence stated that the tenant instead of making efforts for negotiations with him after his having purchased the case building chose the course of confrontation and litigation implying that there was a possibility of some compromise but the status of the landlord was unnecessarily challenged for the reason that at that time he did not have a registered sale deed in his possession which was executed admittedly after the institution of the rent case. He further stated that he wanted to establish his own business of electric goods at a high level with the help of his father having sufficient experience in the field and that the landlord in fact required the case premises together with "adjacent accommodations" (plurality of need) for his personal bona fide need. This expression clearly shows that the landlord wanted to establish his business not only in the rented premises but other adjacent shops as well however it was not made clear by specifying as to how many shops he required for establishing business at the "high level" he wanted and how many were lying vacant though he admitted that there were seven shops in all in the case building. In circumstances I am of the view that when the case is based on deliberate concealment of material and relevant facts having direct bearing on the validity or otherwise of the ground of personal bona fide requirement the landlord cannot be given an advantage of his own wrong to secure eviction of the tenant.
47. ' In F.R.A. No, 225 of 2008 which was filed by the tenant it was stated that the landlord was already doing his business under the name and style of Pak Electrical Company adjacent to the rented shop and during the pendency of the ejectment application he got possession of a shop from the tenant doing business in the name of N.S. Electric and after acquiring possession of the same the landlord started doing business therein under the name and style of Pakistan Lights and that the business of landlord which was being carried in the two shops under the name of Pak Electrical Company-was owned by his father and that the subsequent events would unfold that the landlord got three shops from different tenants and started business under the name of K.K. Electric, S.K.
48. Electric and Pakistan Electric. This claim was replied by filing affidavit in rejoinder later and it was stated that Pakistan Electric and Abdul Karim Electric were merged into one shop meaning thereby that there were two shops in possession of his father where he was jointly doing business with him as apparent from the landlord's address in title and that Jeddah Crystals, Messrs King Watch Co., Favourite. Electric, N.S. Electric, National Electric and Bombay Electro Gas were not in existence and that N.R. Electric was the only one shop in possession of Mst. Salma Agha Lakhani nonetheless it was not clarified even in the rejoinder in the instant proceedings as to how many shops were required by the landlord in addition to the demised premises and how many shops were lying vacant under control of the landlord to which he wanted to extend his business by merging them together in view of the plea that demised premises was required along with other "adjacent accommodations". The emphasis being on plurality of the need. In 2006 SCMR 117 wholesome stress was laid on honesty of intention and genuine need, while construing the import of the phrase "requires the premises in good faith" as opposed to mere wish or desire which for the foregoing reasons is clearly lacking in the present case so far as the ground of personal bona fide requirement is concerned. For all these reasons the landlord fails on the ground of bona fide personal requirement.
49. ' Adverting to the question of default it may be mentioned that this is a case of dammed wilful default enveloped in refractive submissions yet supported by concurrent findings on this issue. In this context it may be mentioned that a notice dated 29-6-2007- under section 18 of SRPO as already disclosed was sent to the tenant Messrs Star Light Corporation claiming monthly rent at the rate of Rs.565 from February 1996 by the new landlord on the ground that they had acquired the property under a sale agreement dated 30-5-2007. This notice was accompanied with letter of attornment dated 15-6-2007 which was dispatched by the previous owners/ landlords stating that they had sold out the case building namely Jewan Jee Building to the new landlord who was authorized/ entitled to receive the outstanding rent. The reply dated 29-6-2007 to this notice from Muhammad Ayub Khan, Advocate was received from the tenant denying the ownership of the landlord on the ground that only an agreement to sell had been executed and as such under the circumstances when the new landlord did not qualify to be the owner he could not be his tenant and further stating that in 1996 previous owner had refused to receive rent and as such under MRC No,629 of 96 regular deposits of rent were being made ever since in his favour and penultimately the rent was deposited from July 2007 to June 2008 amounting to Rs.6780 under ledger No,141 of 1996 followed by another deposit of equal amount for the next year.
50. ' In an application dated 16-9-2008 under section 20(b) of SRPO on record which was preferred by the tenant it was stated that upto 2-6-2007 rent had already been deposited under MRC No,629 of 1996 from July 2007 to June, 2008 amounting to Rs.6780 in favour of the previous owner implying that it discharged the liability towards the new landlord also and that on 24-11-2007 the latter filed affidavit-in evidence and copy of sale deed showing date of registration of the sale deed as being 25-10-2007 and it was further stated that before the new landlord became the absolute owner under the circumstances the tenant had already deposited rent in advance in the name of previous landlord for the period from July, 2007 to June, 2008 and that subsequently in the second week of July, 2008 the tenant personally went to the new landlord and offered rent for the month of July, 2008 but he refused to accept the same and consequently on 25-7-2008 the tenant tendered rent through pay order No,0027490 drawn on Meezan Bank Ltd. Amounting to Rs.1130 being the rent for the month of July and August, 2008 under covering letter through courier but the said rent was not accepted and thereafter he filed MRC No,911 of 2008 on 4-8-2008 in the Court of learned IVth Rent Controller, South, Karachi and after seeking necessary permission he started to deposit the rent from July, 2008 to December, 2008 at the agreed rate under Ledger No,104 of 2008 in favour of the new landlord. Thus it would appear that rent from December, 2007 to June, 2008 was not at all paid to the new landlord by any mode rather denied altogether.
51. ' It would further appear that though the new landlord had been authorized to receive the rent from the tenant by the successors to the outgoing landlord even under the agreement to sell and the letter of attornment yet if the new landlord, hypothetically assuming, were to engage a counsel at his expense and apply for withdrawal of rent deposited in favour of the previous landlord for the period covered under notice under section 18 of SRPO, the Rent Controller could not have come to his aid unless notice to the legal heirs of the previous landlord and their no objection were retrieved which exercise could prove cumbersome and not to the liking or convenience of the new landlord.
52. Nor could it serve as a fair discharge of a legal duty of making swift payment of rent straightaway in keeping with the principle that the debtor must seek the creditor. The C learned counsel for the tenant was asked whether he had placed a statement on record before the Rent Controller in MRC No,629 of 1996 after 30 days of receipt of notice under section 18 of Sindh Rented Premises Ordinance, 1979 expressing no objection to the claim' if any were made for withdrawal of rent by the new landlord to which he candidly replied in negative.
53. ' The contention of the learned counsel for the tenant that the landlord's status, character and title as such was under attack in reply to the notice under section 18 of SRPO as no registered instrument of sale deed was executed and there was, therefore, no commission of default was totally misconceived as the letter of attornment was like giving possession in part performance and it on its own was enough to have authorized the new landlord to receive the rent.
54. Consequently, the later would be deemed to have been clothed with requisite entitlement to receive rent and bring him under the umbrella of the definition of 'landlord' (i,e, the rent collector).
55. ' It is, therefore, clear from the above admissions of fact that though the tenant came to know about the sale deed having been registered on 24-11-2007 when the new landlord filed his affidavit-inevidence yet up to mid of July, 2008 neither the rent was offered, nor remitted or deposited and it was only after about seven months or so on the whole or for five months if the grace period is taken out as in unwritten tenancies that the rent was deposited under MRC No,911 of 2008 in the name of new landlord. The right of the landlord to receive the rent was therefore abridged and default committed and more the so when failure to deposit the rent was backed by his denial of title in spite of such course being hit by estoppel.
56. ' Resultantly, Constitutional Petition No, S-986 of 2009 filed by landlord was allowed by a short order dated 15-4-2010 on the solitary ground of default and the tenant was given six months' time to deliver vacant and peaceful possession of the case premises to the landlord while the Constitution Petition No, S-951 of 2009 filed by tenant against the positive findings on the issue of default as a corollary was disposed of consistently with order of eviction directed on the ground of default only.
57. Above are the reasons for such short order.
58. ' Both the petitions stand disposed of accordingly and the tenant is directed to hand over vacant and peaceful possession the demised premises within six months from 15-4-2010.