' In this case some very interesting and important questions of law arise for consideration, and, therefore, it is necessary to set out accurately the facts as they are either admitted or proved, before entering into a discussion of the main point to be decided between the parties.
2. The premises bearing No,L-41, Block No,9, Federal B' Area, Karachi, originally belonged to one Muhammad Ameen who had rented out the same to appellant at a monthly rent of Rs300 excluding electricity, gas, etc. Charges. On 28-8-1987, the respondent purchased this premises from the original owner, through a registered sale-deed and then served the appellant with a notice under sections 18 of the Sindh Rented Premises Ordinance, 1979, thereby intimating him about the change of ownership. The appellant was also requested to vacate the said premises for the occupation of the respondent and her family members but with no result. The failure of the appellant to tender the rent due to the respondent and vacate the premises for the use and occupation of the respondent led the parties into this litigation.
3. The appellant while disputing the averments made in the application for ejectment filed by the respondent under section 15 of the Sindh Rented Premises Ordinance, 1979, claimed to have deposited the rent in the office of Rent Controller upto the month of March, 1989.
4. On 15-5-1990 the Rent Controller passed the following order under section 16(1) of the Sindh Rented Premises Ordinance, 1979, directing the appellant to deposit monthly rent due:- "By consent the application is allowed. The Advocate for the opponent says that he is depositing the rent in Court at Rs,300 per month from October, 1987, uptil April, 1990.
' The opponent is directed to deposit the rent from the month of May, 1990 onwards in the Court, on or before 10th of each succeeding calendar month. The rent deposited in Misc. Rent Case of 122 of 1987 will be adjusted in this case."
The appellant, however, failed to comply with this order and he A continued to deposit monthly rent due in Misc. Rent Case No,122 0 1987 in the name of Muhammad Ameen, the previous owner. The respondent then made an application under section 16(2) of the Sindh Rented Premises Ordinance, 1979, for striking off the defence of the appellant. This application was allowed vide order dated 20- 1-1991 in the following words:- "The Court had passed the order by consent on 15-5-1990 in which the opponent was directed to deposit future rent from the month of May, 1990 onwards in this case and it was further directed that rent deposited in Miscellaneous Rent Case No,122/81 will be adjusted in this case. The opponent has not complied with the tentative rent order. He has not shown any sufficient cause in his affidavit to condone the disobedience. Therefore, I strike off his defence and order him to vacate the premises within 60 days and hand over its peaceful possession to the applicant. The application of the applicant is allowed and that of the opponent is dismissed."
6. This order was challenged in F.R.A. No,155 of 1991, which was admitted to regular hearing on 19-3- 1991. An interim order thereby staying the proceedings was also passed with notice to the respondent. The respondent has contested the application for stay (C.M.A. No,336 of 1991) and this order of mine shall dispose of the above application.
7. I have heard Mr. Akhlaque Ahmad Siddiqui, learned counsel for the appellant and Mr. M. Zubair Qureshi, learned counsel for the respondent.
8. Quite admittedly the application for ejectment, out of which this appeal has arisen was filed by the respondent seeking the ejectment of the appellant. There is also no dispute that the Misc. Rent Case No,122 of 1987, in which the appellant had been depositing the rent was filed against Muhammad Ameen, the previous owner of the premises. The order dated 15-5-1990 passed by the learned Rent Controller was a consent order in which it was made clear that the future rent was to be deposited in the name of respondent in Rent Case No,142 of 1989. The appellant, however, continued to deposit monthly rent in the name of wrong person in contumacious disregard of the order of Rent Controller. The case of Ghulam Mustafa v. Mian Waqar Ahmad, reported in PLD 1980 SC 9, is a direct authority on this point, wherein it was observed:- "We have not been impressed by the argument of the learned counsel that the petitioner had complied with the order of the learned Controller in a substantial manner by parting with the money. His reliance on the case of Sh. Maqbool Ahmad is misplaced, the same being distinguishable. In this case, there was intentional disobedience of the order passed under section 13(6) in a manner which was intended to harm the interest of the landlord. The deposit in the name of all the heirs was intended to create hurdles for the respondent on either case---whether he accepted it or refused the same. In the former case, it might have operated as estoppel against him in any litigation on question of ownership in the property. Moreover, he could not have withdrawn the money. And if he would have refused it, he would have suffered financial loss. In any case, it cannot be denied that by joining others with the landlord, in the deposit, the petitioner reduced the amount, which as found by the learned Controller, tentatively, was due to the respondent as rent. The point of not depositing the amount in the specific name of the landlord who sues for ejectment and at whose instance and for whose benefit the order for *posit of rent is made, came up before this Court in Haji Allah Ditta v. Mst. Shahzadi Bilqis and another (C.P.S.L.A.
No,303 of 1979, decided on 16-6-1979). In that case, the tenant just deposited the amount but not in the name of the landlord concerned and as a matter of fact did not show the name of any person for whom the amount was deposited. It was argued that such a deposit did not suffer from any infirmity and the Counsel's contention was not accepted and it was held that in the circumstances the tenant had defaulted in the payment of rent by not complying with the order of the Controller.
The actual passage in that judgment, which is instructive on the subject in hand, reads as follows:- `The learned counsel for the petitioner argued firstly that he had not defaulted in payment of rent; that he had been depositing the rent in the treasury, and the only fault found with the same by the learned Rent Controller was that the names of respondent landladies were not mentioned in the challan forms. The counsel attempted to argue that the petitioner had not mentioned the names of the landladies because the relevant form did not contain any colum for that purpose. We have examined the Challan Form and find that this contention is not correct. The omission to mention the names of the persons in whose behalf the rent was being deposited appears to be deliberate and therefore the desposit of the money by the petitioner in the treasury cannot be regarded as lawful tender of the rent. The learned Courts below were, therefore, justified in holding that the petitioner had defaulted in payment of rent.'
' Applying the same principle here too, the deposit of rent by the tenant in the names of large body of persons, namely, the heirs of Haji Abdur Rashid instead of the respondents who had been specifically accepted as his landlord as explained earlier, was deliberate and contumacious and the Courts below were justified in not endorsing the validity of such a deposit. The Ordinance, whereas it gives certain protections and privileges to tenants, also imposes certain obvious obligations on them which, it may be stated, is their bounden duty to strictly follow."
9. In the case of Mehmood Bashir v. Mst. Mobina Begum, reported in 1984 CLC 2620, the tenant had deposited the rent in the name of the husband of landlady instead of landlady in complete disregard of the order of Rent Controller and in this context it was observed:- "The very reading of the order dated 5th December, 1981 shows that the Rent Controller had made a definite direction to the appellant to withdraw the rent from Miscellaneous 5611 of 1979 which he had deposited in the wrong name, and had given sufficient time to the appellant from 5th December, 1981 to 18th January, 1982 to do the needful. There is nothing wrong in the order of the Rent Controller. It was a fair and reasonable order and the appellant should have complied with the same, but he failed to do so. Not only that he had failed to withdraw the rent from Miscellaneous 5611 of 1979 and deposit the same in the name of the present respondent in proper proceedings, but he further adopted a very unreasonable and unfair attitude by continuing to deposit the rent of December, 1981 in the same Miscellaneous proceedings 5611 of 79 on 7th December, 1981 and then again doing the same on 10th January, 1982. To say the least the appellant had continued to act under his own will and in complete disregard and defiance of the order of the Rent Controller dated 5th December, 1981.
' Even if there was some initial justification for deposit of rent in the name of Zafar who is the husband of the present respondent still that justification was completely gone after the order passed by the Rent Controller on 5th December, 1981. The result is that it was not a mere technical non-compliance with the order of the Rent Controller dated 5th December, 1981 but a contumacious insistence on the part of the appellant that he will continue to do as he liked in spite of the order of the Rent Controller."
10. This question was also examined in the case of Mst. Muhammad Nisa v. Anwar Ali, reported in 1989 CLC 157 although in different context, wherein it was remarked:- "In my view she had full knowledge of the sale of this property to the respondent and she deposited rent in the name of the previous landlord merely to harass the respondent. In these circumstances the finding of the learned Controller with regard to default in payment of rent cannot be questioned."
11. This view gets support from the judgment of Supreme Court in the case of Ghulam Hussain v.
Mst. Roshan Bibi, reported in 1986 SCM R 1714, wherein it was held:- "We are unable to agree with the submission for admittedly the rents were not deposited in the account of the ejectment application. The High Court has for good reasons found the petitioner negligent in prosecuting his defence and we are satisfied that the Rent Controller was justified in striking off the defence of the petitioner. It was for him to have complied with the orders by depositing the rents in the account of the ejectment application which was the direction given in the order passed under section 16(1) of the Sindh Rented Premises Ordinance."
12. Mr. Akhlaque Ahmad Siddiqui, learned counsel for the appellant has, however, contended with force that such non-compliance was only technical one and no prejudice appears to have been caused to respondent. The case of Abdullah Ghanghro and another v. Mst. Tahira Begum and another, reported in 1988 SCM R 970, certainly appears to lend same colour to this contention. The facts of the present case are, however, distinguishable. In the reported case the rent was being deposited by the tenant in miscellaneous proceedings pending between the same parties, while the rent in the present case is being deposited in the name of a wrong person with a view to deprive the respondent to collect rent. It may also be added that the above case although reported in the year 1988, was decided on 31st January, 1984, long before the judgment of Ghulam Hussain v. Mst. Roshan Bibi, reported in 1986 SCM R 1714, referred to above.
13. The grant of stay is not an automatic process and the only fact that the appeal has been admitted to regular hearing does not entitle the appellant to get an order of this nature. There should be a justification of this order and in the light of the rule laid down by the Supreme Court in the case of Khawaja Ghulam Mustafa v. Mian Waqar Ahmad, reported in PLD 1980 SC 9, I am of the view that the appellant, who has not only flouted the order of the Rent Controller but has demonstrated in no uncertain terms for any one to see that he has got scant regard for such orders is not entitled to such a relief.
14. In the result I find no merits in the application of stay (C.M.A. No,336 of 1991) and dismiss it. As a necessary corollary to this order, the interim stay granted earlier is recalled.
Stay vacated.