1. ' This is an appeal by Muhammad Nawab and others to challenge an order of the XII th Senior Civil Judge/Rent Controller, Karachi. In Rent Case No,3040/1976, whereby an ejectment application filed by the present appellants against the respondent was dismissed.
2. ' The record had been called, and I have perused the record with the assistance of Mr. M. Salim Karamally. Since I am taking the view that no case for admission has been made out, I have not thought it fit to issue any notice to the respondent.
3. ' The brief facts are that the respondent is a tenant in a building known as "Shamsi Building" on Plot No,SB1/1, 2 and 3 at Preedy Street, Karachi. Admittedly, this building was originally owned by Shaikh Muhammad Ashhar and Shaikh Muhammad Yousaf.
4. ' The documents on record go to indicate that the building was purchased by one Dildar, who is stated to be the father of the present appellants. However, the sale-deed, a copy whereof has been produced on the record, shows that Dildar had been called the confirming party, and the purchasers of the property were Muhammad Nawab, Muhammad Gulfam, Anwar Ahmed and Muhammad Ayoob. These four persons are the appellants in the pregent appeal. It may, however, be stated that two out of these four purchasers were minors at the time sale-deed was executed. It seems that, earlier to the execution of the sale-deed, a power-of-attorney had been executed by the sellers in favour of Dildar. A copy of this power of attorney has been placed on the record, and, while the date of execution is not legible, the month appears to be May and the year appears to be 1976. These facts clearly show that, on a day in May 1976, Dildar was appointed as an attorney by the previous owners Shaikh Muhammad Ashhar and Shaikh Muhammad Yousuf. Mr. M. Salim Karmally, during his arguments, also referred to some other document, which conferred some more rights on Dildar, but such documents has not been produced, and therefore it is not necessary to refer to it. The above resume of events, relating to ownership of the property, would clearly show that the property in question was not sold to the appellants before 27th September, 1976.
5. The Rent Case, which has given rise to the present appeal, was filed on 16th July, 1976 viz. For earlier than the date of execution of the sale-deed in favour of the appellants. What is more that the case was filed by Dildar alone to the exclusion of his four sons (the appellants), who were the owners of the property. The learned Senior Civil Judge, on such premises on facts, came to the conclusion that the Rent Application had not been filed by the proper party. In any case, the sons of Dildar, who were the owners of the property, had filed an amended application in the lower Court in 1982. This very circumstance would go to indicate that the intitial Rent Application had not been filed properly. Mr. M. Salim Karamally, however, states that some of the appellants were minors at the time of filing of the original application. But even if that is believed, at least such owners, who were major, should have been parties to the original application, or at least the case should have been filed in their names.
6. ' The next contention of Mr. M. Salim Karamally is that, on 1st June, 1976, viz. Nearly four months before the sale-deed was executed in favour of the appellants, a notice had been given by Dildar to the respondent/tenant, intimating the purchase. A copy of this notice has been placed on the record, and the same shows that it was given on 1st June, 1976. The notice is, indeed, very cleverly worded. It calls upon one Miss Shangranchi to pay the rent, but it is not stated that the property in question has been purchased by Dildar. All that it states is that Dildar was the landlord of the tenants. In conjunction, the contention is extended to the fact that the respondent tendered the rent to Dildar on 5th June, 1976. Now, the contention is that the respondent having once paid the rent was estopped from denying the title of Dildar. This contention has to be repelled for more than one reason. It is patent position that, on 1st June, 1976, Dildar was not the owner of the property. In fact, the property was sold on 27th September, 1976, and that also in the names of the four appellants before me. The rent might have been tendered by the respondent out of abundant caution, but that will show the bona fide intention of the tenant, and would not attract the principle of estoppel, specially when it is established on the record that Dildar was not the owner. The rent was tendered on account of misrepresentation, and therefore the principle either of waiver, or, estoppel would not be attracted. In that context, reference may also be made to a notice given by the present appellants to the respondent on 15th March, 1978. This notice has been placed on record as Exh. A/2 and this shows that the property had been purchased by the present four appellants, and they were the owners. The name of Dildar is mentioned only as father and natural guardian. Even for this reason, the position is clear that the respondents were misled to believe that Dildar was the owner, and therefore entitled to rent, and such factor would not attract the principle of waiver, or, estoppel.
7. Coming to the merits of the case, it is admitted position that the respondent had started depositing the amount of rent in Court from 1977. There is nothing on the record to show that the present appellants, who are the real owners of the property, communicated the fact of change of ownership to the respondent before 15th March, 1978. The respondent, therefore, could not be termed as defaulter.
8. ' I am of the view that the order of the Senior Civil Judge was eminently correct and justified, and does not call for any interference. This appeal is dismissed in limine.