' This is a second appeal. Rent Case No, 3911 of 1975 was filed by the respondent in November, 1975, for the ejectment of the appellants from the shop in question. The rent case was allowed and ejectment was ordered on 17th May, 1978 by the Rent Controller. Rent Appeal No, 369 of 1978 was filed but the same was dismissed by the learned 3rd Additional District Judge, Karachi, by order, dated 12th November, 1980. This second appeal has been filed against the concurrent findings of the Rent Controller and the First Appellate Authority. I have heard Syed Inayat Ali, learned counsel for the appellants and Chowdhry Nazir Ahmad, learned counsel, who has appeared on behalf of the respondent. The shop in question was owned previously by one Haji Usman and the same was sold through a registered sale-deed on 19th June, 1973. There was some dispute between the appellants and the previous owner Haji Usman, and a Suit No, 666 of 1973 was filed by one of the appellants against him in the District Court and since May, 1973, the appellants were depositing rent in Miscellaneous Rent Case No, 1044 of 1973, in which miscellaneous rent case Haji Usman was the opponent, as according to the appellants, Haji Usman was not accepting the rent. On 24th July, 1974, it is averred on behalf of the appellants, they came to know that the property in question had been sold by Haji Usman to the respondent and as such on that date on a joint statement being made by the counsel of the parties in the Civil Suit No, 666 of 1973, the suit of the appellants was dismissed as infructuous. In the Miscellaneous Rent Case No, 1044 of 1973, in which Haji Usman was the opponent, the appellants started depositing rent since May, 1973 and it is their case that before they came to know of the transfer of the property in favour of the respondent on 24th July, 1974 they started depositing a sum of Rs, 240 at the rate of Rs, 40 per month in the said miscellaneous rent case No, 1044 of 1973, as advance rent from July to December, 1974. It is the case of the appellants that they did not receive any notice under section 13-A of the 1959 Ordinance but after coming to know of the transfer of property in July, 1974, in favour of the respondent, rent was tendered to him but he did not accept the rent and as such they filed another miscellaneous rent case No, 3181 of 1974 in July, 1974 and started depositing rent in advance with effect from January, 1975. It may be observed here that in this miscellaneous rent case of 1974, the present respondent was the opponent. As observed earlier, the ejectment case against the appellants had been filed by the respondent in November, 1975 and when this case was filed, the rent upto December, 1975, had already been deposited in miscellaneous rent case No, 3181 of 1974.
2. The learned Rent Controller held that section 13-A notice had been given by the respondent and the same had also been served upon the appellants and that after service of notice in July, 1973.
Under section 13-A they did not tender any rent to the respondent and the first deposit in miscellaneous rent case of 1974, in which the present respondent was the opponent, was made on 11th December, 1974 which was after a long period of about 16 months. It was further held by the Rent Controller that after having received the notice under section 13-A the deposit of rent in the previous rent case of 1973, in which the opponent was the previous owner i,e, Haji Usman, was not a proper tender or deposit of rent insofar as the respondent was concerned. In view of these findings, the Rent Controller decided that it was a case of wilful default and ejectment was granted. As observed earlier, the ejectment order passed by the Rent Controller was upheld by the First Appellate Authority. In my view, there are two questions, which required consideration and that were whether notice under section 13-A had been served and secondly whether the deposit made in miscellaneous rent case of 1973, in which the previous owner, Haji Usman, was the opponent, could be treated as tender or deposit of rent insofar as the present owner/ respondent is concerned. On the question of section 13-A a very detailed discussion is to be found in the order, dated 17th May, 1978 of the learned Rent Controller. The Rent Controller relied upon copy of the notice under section 13-A and the postal receipt and also on the evidence produced by the parties.
An argument had been raised by the learned counsel for the appellants that the notice under section 13-A had not been sent at the correct address of the appellants. This aspect of the case has also been duly considered by the Rent Controller. It has come on record that in the aforesaid civil Suit No, 666 of 1973 filed by appellant Mst. Zubeda Bai against the previous landlord Haji Usman, in April, 1973 her address of service was given as 4th floor, Malik Building, Paria Street, Karachi. It has also come in evidence led on behalf of the appellants that the appellants resided together. Copies of the notice and the acknowledgment card show that the notice under section 13-A was sent on the address of Malik Building, Paria Street, Karachi, which was given by appellant Mst. Zubeda Bai in her suit. Then there is Exh. 9, which is a letter, dated 17th September, 1983 addressed by V. P. Shaikh & Co., Advocates, addressed to the advocate of the respondent, in which the respondent was asked to send copies of the registered documents for showing that the respondent had become the owner of the property. It was further stated in this Exh. 9 that the appellants were depositing rent in miscellaneous rent case No, 1044 of 1973 and that on receipt of necessary documents from the respondent rent would be paid directly to the respondent. In the face of all this evidence no other conclusion could be reached but that notice under section 13-A had been given in July, 1973 and that the same had been received and that a reply had also been sent by the Advocates of the appellants. An attempt was made to argue that this Exh. 9 was not authorized but it has been admitted in evidence led on behalf of the appellants that V. P. Shaikh & Co., Advocates were the Advocates of the appellants. In my view the finding that section 13-A notice had been given in July, 1973 and that the same had been served upon the appellants is based on evidence and no case has been made out for interfering with the finding of the Rent Controller in that regard which finding has also been upheld by the First Appellate Authority.
3. The only other question of importance is whether after having received section 13-A notice from the respondent in July, 1973, the continued deposit of rent by the appellants in miscellaneous rent case No, 1044 of 1973, wherein the opponent was the previous owner, Haji Usman, and not the present respondent, can be considered proper tender/payment/deposit of rent. In my view the finding of the learned Rent Controller that in such circumstances a deposit in miscellaneous rent case of 1973, cannot be treated as tender/payment of rent to the respondent. After having received the notice under section 13-A in July, 1973, by continuing to deposit rent in miscellaneous rent case of 1973, where the opponent was not the present respondent, the respondent was being deprived of the rent, which was due to him. As already observed, it is for the first time in December, 1974, that in the second miscellaneous rent case, in which the opponent was the present respondent, rent was deposited. After having received notice under section 13-A and in any case after July, 1974, when the appellants had withdrawn from Suit No, 666 of 1973, they should have tendered/paid rent to the respondent in respect of the shop in question. The submission of the learned counsel for the appellants that on 3rd July, 1974 the appellants had already deposited six months rent in advance upto December, 1974 and that when the instant rent case was filed rent from January, 1975 upto December, 1975 had already been deposited in the second miscellaneous rent case, is of no avail to the appellants, as admittedly no rent has been paid to the respondent from June, 1973 upto December, 1974. As noted earlier that rent has been deposited in miscellaneous rent case of 1973, wherein that opponent was the previous landlord. It is further stated by the learned counsel for the appellants that in the special facts and circumstances of the instant case discretion ought to have been exercised by the Rent Controlled in favour of the appellants/tenants and that the conduct of the appellants demanded that their ejectment ought not to have been ordered. In my view, discretion has been properly exercised in the instant case by the Rent Controller, which was upheld by the First Appellate Authority and I see n reason or justification to disturb or interfere with the findings of the two tribunals.
4. It was also contended by the learned counsel for the appellants that after July, 1974, rent had been tendered by the appellants to the respondent but that was refused by the respondent. On this point the finding of that Rent Controller is that no rent was tendered upto December, 1974 and I fin from the memo. Of the first rent appeal as well as the memo. Of the present' second rent appeal that no such ground had been taken. There is no merit in this contention.
5. Second Appeal No, 447 of 1980 is dismissed but with no order as to costs. The appellants are, however, granted time till 30th June, 1983 to vacate the premises.