1. ' The appellant Muhammad Siddiq Mazhari who is owner/landlord of Flat No, 14, Mazhari Manzi], opposite Jubilee Cinema, Karachi has preferred this appeal from the Order of III, Rent Controller.
2. Karachi, dated 9th October, 1980 whereby his application seeking eviction of the respondent, Zahoor Ahmed from the aforesaid flat has been dismissed with costs.
3. ' After hearing the arguments of the learned counsel for the parties and going through the relevant record, the application was allowed by short order, dated 21st March, 1984 within no order as to costs. However, at the request of the learned respondent's counsel, the respondent was allowed six months' time for vacating the flat in his possession subject to this depositing monthly rent in the Court regularly and in the case of his default in this regard, he was to be evicted without further notice. Following are the reasons in support of the short order.
4. ' The appellant instituted Rent Case No, 2672 of 1976 against the respondent seeking the latter's ejectment from the flat in dispute on the sole ground of default in payment of rent since 1961. The respondent in his written statement resisted his eviction, taking the plea that besides the appellant, there are other co-owners of the flat who have also demanded rent from him and that civil litigation is pending between them. The respondent has, however, shown his readiness to pay the rent legally due from him.
5. ' On perusal of the written statement, it would appear that the respondent has admitted his status of being tenant in respect of the demised premises. While denying that he is defaulter in payment of rent, the stand taken by him in the written statement leaves no doubt that he has not paid any rent either to the appellant or to any other co-owner of the flat. The pleas taken by the respondent are self-contradictory inasmuch as that on one band other co-owners have also demanded rent from him and on the other hand they have not only refused to supply him their full names and addresses, enabling him either to pay rent to them or deposit the same in Court but have also declined to give proper receipt acknowledging the payment of the rent. It is also clear from his written statement that he has not made any payment on account of the rent to the appellant. Thus the admitted position that emerges from the written statement is that the appellant is recognized as one of the owners of the disputed premises and that the respondent is occupying the said premises as tenant and that the rent has not been paid by the respondent either to the appellant or to any of the co-owners.
6. ' However, the learned counsel for the respondent opposed the respondent's eviction on the following grounds :-
(1) that besides the appellant, there are co-owners of the flat in possession of the respondent and since the said co-owners have also demanded that payment of rent be made to them prohibiting the respondent further from paying the rent to the appellant and also because civil litigation is pending between appellant and other co-owners in respect of the disputed premises, the respondent is justified in withholding the payment of rent.
(2) that the ejectment application is not maintainable as in presence of other co-owners, the appellant alone could not seek eviction of the respondent from the disputed premises. that the statutory notice under section 30, Displaced Persons (Compensation and Rehabilitation)
7. Act, 1958 served by the appellant on the respondent was required to be given by all the co-owners and consequently, no valid relationship of landlord- tenant was created between the parties.
8. Taking up the first contention raised on behalf of the respondent, there is no doubt that the appellant alone is not the owner of the disputed flat. Besides him there are other owners also. It is also not denied that some litigation has been going on between the owners in respect of the building of which the disputed flat is a part. The question arises if the respondent is justified in withholding the payment of the rent on the above grounds. His pleas that he has been required by other co-owners to pay the rent to them and that they have prohibited him from making the payment to the appellant does not appear to bear any truth. The inconsistent stand taken by the respondent in his written statement is enough to strike fatal blow to his case. It is simply unbelievable that on one hand the other co-owners would ask the respondent to pay rent to them and on the other hand they would prevent him from doing so by refusing to disclose their names and addresses. Moreover, he has not examined any of the other co-owners in support of his assertions. If they hart really desired the respondent to pay the rent to them and not to the appellant they would not have hesitated to offer themselves in evidence in favour of the respondent.
9. ' However, the respondent has relied upon one typed notice (at page 55 of the lower Court's record) purported to have been signed by one Muhammad Sualeheen of the co-owners on his behalf and as attorney of other co-owners. By this notice all the tenants of the disputed building, including obviously the respondents have been intimated that besides the appellant there are other owners also of the disputed premises and as such it was in the interests of the tenants that they should deposit the rent in the Court. First of all the respondent has not proved by proper evidence that the said notice had actually emanated from one of the co-owners. Neither the author of the notice has been examined nor any person conversant with his signature or in whose presence he signed the notice has been produced in evidence. Therefore, it cannot be held that the above notice was given to the respondent on behalf of the other co-owners. Even if it is believed, the respondent has obviously not acted upon it. He has not deposited the rent in the Court as he has been advised in the notice. Moreover, he stands falsified by the notice inasmuch as that the other co-owners though demanded the rent from him refused to supply him their names and addresses. The notice specifies the name and address of at least the co-owners who had issued the same. If the respondent did not think it safe to pay rent either to the appellant or to other co-owners, he could have deposited the same in Court. The B fact that he has not paid rent to any of the owners or deposited it in the Court renders him liable for the default.
10. ' As regard s the second objection relating to maintainability of the ejectment application, the learned counsel for the appellant has referred to Khalique Ahmad v. Abdul Ghani and another (1), wherein it was held "A suit for possession can be brought by all the co-owners jointly. It is open, however, to one of them also to sue for possession but he must join the other co-owners, as defendants and the decree will be for joint possession and not in favour of the plaintiff only. Unlike that, a suit for ejectment can be filed by one of the co-owners without joining the others as defendants. This is the difference between an action for possession and an action for ejectment."
11. The above authority makes it clear that there is no legal bar on launching a litigation for eviction of the tenant by any of the co-owners C without joining the other co-owners. This is because such an action taken by one of the owners would not, in any manner, prejudice the interest of the other co- owners. Thus, no exception can be taken to the maintainability of the ejectment application in the instant case on the ground that it has been filed by the appellant without joining the other co- owners.
12. ' The next contention raised on behalf of the respondent was that statutory notice was required to be given under the law by all the owners and since in the instant case it was given only by the appellant, the notice was invalid. In support of the contention reliance has been placed on the case of Lahore High Court Faqir Muhammad v. Fazaldin and another (2) wherein it was held :- "It can therefore not be argued that if there are more than one transferee the notice can be given by one transferee alone simply because the word used in the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is in the singular."
(1) PLD 1973 SC 214 (2) PLD 1967 Lab. 528 ' It would be noticed that in the above-reported case the notice was served by pleader. The notice opened with the words :- "Instructed by my clients Mr. Fazal Din son of H. Bhag Din, etc.............................
13. I hereby serve you with the following notice."
14. As the names of the other transferees were not disclosed in the said notice, it was ruled by the learned Single Judge that the notice cannot be given by one transferee alone. The facts of the instant case are, however, distinguishable. The notice served in the instant case has disclosed the names of all the transferees. It seems the object of the notice is to intimate the tenant, the change of ownership and the names of new owners so that he should know as to whom he would be liable to pay rent in future. Since the names of other co-owners were not suppressed the notice cannot be held as defective merely because it was not signed by all the owners. :Therefore, the argument of the learned counsel for, the respondent in this regard was without any force.
15. ' For the above reasons, as mentioned above, the appeal was allowed.