' This is a Second Rent Appeal filed by the tenant/appellant against the orders of the Rent Controller and the First Appellate Authority concurrently holding that the appellant had committed wilful default and was liable to be ejected. The Rent Controller had allowed the Rent Application No, 534/76 filed by the respondent/landlady and the First Rent Appeal No, 1/1979 filed by the appellant was dismissed by the III Additional District Judge, Karachi, by his order dated 2nd December, 1980,
2. The premises in question are situated in Pir Elahi Bux Colony, Karachi. The appellant was a tenant of the father of respondent, Mst. Habibun Nisa. Father of the respondent died on 5th January, 1972 leaving behind the respondent and one son named S. Abdul Karim as the legal heirs, but the respondent was the sole nominee of her father in so far as the allotment of the property in P.
1. B. Co-operative Housing Society, Karachi was concerned. And as such on 5th March, 1972, the property in question was mutated in the respondent's name and this was intimated to the respondent by the P.
1. B. Society on 11th March, 1972. On 18th March, 1972, the respondent served a notice under section 13-A of the 1959 Rent Ordinance on the appellant. The service of this notice is admitted and it is also admitted that the rent was not tendered by the appellant/respondent. In these circumstances first Rent Case No, 1845/72 was filed by the respondent against the appellant on 2nd August, 1972 on the ground of default in the payment of rent and on the ground that the premises were required for personal bona fide use by the appellant. A written statement was filed by the appellant in which the relationship was denied. The case of the appellant was that he was the tenant of the father of the appellant and after his death, S. Abdul Karim (brother of the respondent) had collected rent from the appellant and had also executed a tenancy agreement, and under the tenancy agreement, the appellant had paid rent to S. Abdul Karim upto March, 1973. In the said first Rent Case No, 1856/72, S. Abdul Karim was impleaded as a party at the instance of the appellant. A tentative rent order was passed by the Rent Controller and the appellant deposited rent from April, 1973 to May, 1975 in the said Rent Case No, 1856/72. The said Rent case was allowed in favour of the appellant by the Rent Controller by Order dated 23rd November, 1974 on the ground that the relationship of landlady and tenant had been established between the appellant and the respondent and that the respondent had wilfully defaulted in the payment of the rent after receipt of notice under section 13-A of the 1959 Ordinance. Against the said order dated 23rd November, 1974 respondent filed First Rent Appeal No, 659/74 which appeal was allowed by the III Additional District Judge, Karachi on the ground that there was no wilful default on the part of the appellant although the finding of the Rent Controller that the relationship of landlady and tenant existed between the parties was confirmed. The present respondent filed Second Appeal No, 141/7 in the High Court, which was, however, withdrawn by the respondent on 16th September, 1980. It may be noted here that no cross objections had been filed by the appellant in the aforesaid Second Appeal No, 141/75.
3. In the .Meantime on 31st January, 1976 another Rent Case No, 534/ 76 was filed by the respondent against the appellant on the ground of default and the default was alleged to be for two periods, namely, from 5th January, 1972 (the date of the death of the father of the respondent) to 4th April, 1973 (the first period of default) and from. 1st May, 1975 to 31st December, 1975 (the second period of default). As observed earlier, this second Rent Case No, 534[76 was decided in favour of the respondent and the appellant was ordered to be ejected on the ground of committing wilful default and the First Rent Appeal No, 1/79 filed by the appellant also came to be dismissed by order dated 2nd December, 1980 of the learned Second Additional District Judge, Karachi.
4. It may also be mentioned here that Suit No, 1987/72 has been filed by S. Abdul Karim (brother of the respondent) against the respondent for partition of the property in question and this suit is pending since 1972 in the District Court, Karachi. On a question being asked by this Court, learned counsel for the respondent informed that when the said suit No, 1987/72 had been filed, the respondent filed an application under Order VII, rule 10, C. P. C. That proper court-fee had not been paid on the suit by S. Abdul Karim which application was granted and the plaintiff was directed to pay the deficit court-fee but although we are now in the year 1982. Neither the deficit court fee has been paid by the plaintiff nor any order has been passed for dismissal of the suit or rejection of the plaint and said suit is still pending in the District Court, at the same stage.
5. I have heard Mr. M. Salim Qureshi, learned counsel for the appellant and Mr. S. A. Jalib Chaudhry, learned counsel for the respondent. According to learned counsel for the appellant, as for the first period of default, the order of the Rent Controller in the First Rent Case was reversed by the first Appellate Authority by order dated 7th April, 1975 in First Rent Appeal No, 659 of 1974 whereby it was held that in so far as the first period was concerned there was no wilful default on the part of the appellant as the appellant had paid rent to the brother of the respondent. In so far as the second period of default alleged against the appellant, i,e,, from 1st May, 1975 to 31st December, 1975 it was contended that the appellant filed a Miscellaneous Rent Application No, 2057/75 and started depositing rent with effect from June, 1975 in the C joint name of the respondent and her brother S. Abdul Karim and therefore, there was no default on the part of the appellant. Both the Rent Controller as well as the First Appellate Authority have held that the deposit by the appellant in the joint names of the respondent and her brother in Miscellaneous Rent Application No, 2057/75 was not legal tender of rent by the appellant, and therefore, default was committed by the appellant and he became liable to be ejected.
6. Learned counsel for the appellant referred to the case of Amtul Habib v. Musarrat Parveen. The question before the Supreme Court of Pakistan in that case was whether a nomination made1 under section 27 of the Co-operative Societies Act, 1925 validly affects a transfer of immovable property in favour of the nominee absolutely and to the exclusion of all other legal heirs of the deceased nominator. It was held by the Supreme Court that unless a nomination can amount to a valid gift inter vivos it cannot pass title to the nominee in respect of the immovable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. Reliance was placed by learned counsel for the appellant on this judgment of the Supreme Court for the contention that after the death of the father of the respondent, both his children, namely, the respondent and the said S. Abdul Karim became the owners and the nomination in favour of the respondent by their father as his sole nominee did not make the respondent the full owner to the exclusion of S. Abdul Karim and as such the deposit by the appellant in Miscellaneous Rent Application No, 2057 of 1975 in the joint names of the respondent and S. Abdul Karim was valid and proper and, therefore, there was no default on the part of the appellant. The other contention was that payment of rent to any co-owner was a sufficient discharge of the rent due in respect of the property. On the other hand, Mr. S. A. Jalib Chaudhry, learned counsel for the respondent, contended that the dispute as to title was a different question and what was required to be decided by the authorities under the Rent Restriction Ordinance was the relationship of landlord and tenant and this having been established by the two orders in the first round of litigation between the parties and the appellant not challenging the said findings about the relationship of landlord and tenant existing between the parties, the appellant was in law liable and required to pay the rent to the respondent and the deposit of rent in 'the joint names of the respondent and S. Abdul Karim was not proper and legal deposit or tender of rent.
7. It is an admitted position, as observed earlier, that in the first Rent Case No, 1856/72, the relationship of landlord and tenant was decided and it was held by the Rent Controller that this relationship existed between the parties and although in the First Appeal No, 659/74 the ejectment order passed in Rent Case No, 1856/72 was set aside, the finding of the Rent Controller that the relationship of landlord and tenant existed 'between the parties was confirmed. Further, as also observed earlier, in the Second Appeal No, 141/75 filed by the respondent, no cross-objections were filed by the appellant. The findings of the Rent Controller and the First Appellate Authority that the relationship of landlord and tenant existed between the parties was, therefore, not challenged and was accepted by the appellant. In the face of these facts the appellant was liable to tender or pay rent to the respondent and the deposit of rent in the joint names of the respondent and her brother, S. Abdul Karim was neither legal nor proper. The only reason that can be given for this deposit in the joint names is that the appellant did not want the respondent to withdraw or receive the rent although the finding of the Rent Controller and the First Appellate Authority in the first round of litigation had been accepted by the appellant.
8. As regards the judgment of the Supreme Court of Pakistan in PLD 1974 SC 185, it may be observed that a dispute as to title is not be decided by the Rent Controller. If an opponent in a Rent Case challenges the relationship of the landlord and tenant then in such a case the Rent Controller has to decide whether such relationship exists or not and only if the Rent Controller comes to the conclusion that such relationship exists, he can take further action and order ejectment of the opponent for any one or more reasons mentioned in the Rent Ordinance. It is, therefore, the relationship of landlord and tenant that has to be decided by the Rent Controller in -Rent cases in the light of the provisions of Rent Ordinance and not a dispute as to title or ownership which question is to be determined or decided by the Civil Courts. PLD 1974 SC 185 is, therefore, of no assistance to the appellant. The argument relating to payment of rent to' a co-owneris also not relevant.
9. As the relationship of landlord and tenant had been established in the first round of litigation between the parties and the said finding had not been challenged by the appellant, the appellant's action in depositing D rent in the joint names in the respondent and S. Abdul Karim did not amount to proper or legal tender. The learned tribunals below have come to the right conclusion that ,wilful default has been committed by the appellant.
10. As a result, Second Appeal No, 471/80 is dismissed with costs, The appellant is, however, granted time till 30th November, 1982 to vacate the premises subject to payment or deposit of rent. PLD 1974 SC 185