' ZAFFAR HUSSAIN MIRZA, J.-The petitioners are occupants and statutory tenants in respect of ground floor premises in a double storey House No, 36/4, Clayton Road (now Bahadur Yar Jang Road), Karachi. They are aggrieved by the order of their eviction passed by the Senior Civil Judge and Rent Controller VIII, Karachi, which has been affirmed in appeal by a learned Single Judge of the Sind High Court vide judgment dated 9-1-1983.
2. The facts forming the background of this petition are that the house was transferred under the Settlement Scheme to the respondent as a claimant displaced person and a P. T.
0., dated 13-2-1960 was issued in his favour by the Deputy Settlement Commissioner. The petitioners were also claiming transfer of the house but their claim to transfer was rejected by the Deputy Settlement Commissioner. Their appeal having been dismissed by the Additional Settlement Commissioner Karachi, they filed a revision before the Settlement Commissioner, who by his order dated 11-8-1961 cancelled the transfer made in favour of the respondent and directed the transfer of the house in favour of the petitioners. The respondent having failed to obtain the reversal of this order by the Chief Settlement Commissioner, he was called upon to surrender his P.
T. O. He, therefore, challenged the adverse orders passed against him by means of a Constitutional Petition before the Sind High Court which was, however, dismissed by a learned Single Judge. The respondents Letters Patent Appeal having met the same fate, be came up before this Court and finally succeeded in having the said adverse orders passed against him reversed vide judgment of this Court dated 14-9-1972 in Civil Appeal No, K-23 of 1970. By this judgment the appeal was allowed and the judgments and orders of the High Court as well as Settlement Commissioner and the Chief Settlement Commissioner were set aside.
3. The question of the transfer thus having attained finality, on 26-10-1972 the respondent served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 inter alia, calling upon, the petitioners to pay the arrears of rent amounting to Rs, 13,372.75 within statutory period being the arrears of rent with effect from the date of the original transfer in favour of the respondent 1, e. 13-2-1960. The petitioners by their reply dated 5-12-1972 acknowledged the receipt of the notice but did not pay the arrears of rent demanded therein. Instead they informed the respondent that a review petition had been submitted in the Supreme Court and asserted that the matter of transfer was, therefore, still sub judice. Simultaneously they approached the concerned Rent Controller with an application for permission to deposit the amount of Rs, 2,123.32 representing the arrears due for a period of three years from the date of the receipt of notice under section 30 minus an amount of Rs, 1,409.68 claimed to have been paid by them towards Government and K. M. C. Taxes. In this application they also prayed that the amount deposited by them may not be allowed to be withdrawn by the respondent/landlord until the disposal of the review petition filed by them in the Supreme Court or on furnishing security equal to the amount deposited. The learned Rent Controller by his order dated 6-1-1973 allowed the petitioners to deposit the amount with the Nazir of his Court "at the risk of the petitioners and further clarified that the same will not absolve them from any default already committed- by them or binds the landlord to accept the deposit as sufficient tender of the arrears of rent. Subsequently this Court dismissed the review petition filed by the petitioners.
4. Eventually on 30-12-1973 the respondent filed an ejectment application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959, on the ground of failure on the part of the petitioners to tender or pay rent due to him in pursuance of the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. The petitioners resisted the ejectment application and denied that they have committed default in the payment of the rent. They further inter alia raised the plea that the P. T. O. Issued in favour of the respondent having been once cancelled, he would be entitled to demand rent only when he obtained a fresh P. T. O. From the Settlement Department, notwithstanding the judgment of the Supreme Court which according to them merely determined the entitlement of the respondent to the transfer of the disputed property. The, learned Rent Controller, however, held that the respondent was entitled to demand rent and that the petitioners had committed wilful default in the payment of the rent after receipt of notice under section 30 of the Displaced Persons Act. The deposit of rent made by the petitioners was held to be not sufficient tender of rent according to law, to absolve the petitioners from the consequence of non-payment of rent since the petitioners had prayed that the amount deposited should not be allowed to be withdrawn by the landlord. It is further important to point out that according to the finding of the learned Rent Controller the deposit of rent was also not valid tender of the rent clue because the amount deposited was less than the amount due as arrears of rent. As a result of his finding the learned Controller ordered the ejectment of the petitioners vide his judgment dated 11- 5-1981.
5. The petitioners then preferred an appeal before the High Court which was heard by a learned Single Judge and was dismissed as per the impugned judgment hence this petition for special leave to appeal.
6. Mr. Akhtar Mahmood appearing in support of the petition did not dispute the fact that a valid notice under section 30 of the Displaced Persons Act was served on the petitioners. He, however, made a grievance that the High Court fell into error in holding that the additional deposit of the arrears of the rent by the petitioners with the Rent Controller did not constitute valid tender of rent in terms of section 30 of the Displaced Persons Act. He submitted that the petitioners were only liable to pay rent for three years prior to the date of service of the notice, which they had deposited with the Rent Controller and, therefore, they did not commit any violation of the requirements of law.
7. After hearing the learned counsel at length we are inclined to agree with the concurrent finding of the two Courts below on the admitted facts of the case that the petitioners have committed default in the payment of rent due to the respondent/landlord. Without going into other controversies raised by the learned counsel it is sufficient for present purpose to mention that admittedly the petitioners did not deposit all the rent due for a period of three years but deducted an amount of Rs, 1,409.68 claimed by them as having been paid towards Government and K. M. C.
A taxes in respect of the premises. In our view the petitioners were not entitled to deduct this amount and did so at their risk and peril 'inasmuch the claim of the petitioners for refund of the amount was subject to adjudication by a competent Court or authority. The law clearly required them to deposit all the rent due in order to escape the consequence of ejectment by the Rent Controller., There was, therefore, clear default established against the petitioners and the order of ejectment passed against them is not open to exception. The petition, therefore, is without substance and is accordingly dismissed.