1. ' This appeal has been filed challenging the orders passed by the First Senior Civil Judge/Rent Controller, Karachi (Central) on 8-8-1991 whereby he had ordered to strike off the defence of the present appellants and directed them to hand over the vacant possession to the present respondents within sixty (60) days.
2. ' Briefly the facts are that the premises in dispute namely, ground floor of residential House No,III-H 2/2, Nazimabad, Karachi was owned by late Musharaf Ali, who had inducted the present appellant No,1 as tenant at the monthly rent of Rs,1,100. This Musharaf Ali expired and was succeeded by his L.Rs, including Wasif Ali and Mst. Rukhshanda.
3. ' It is pointed out by the learned counsel for the appellants that the said Wasif Ali and Mst.
4. Rukhshanda filed Rent Case No,1394 of 1984 against the present appellants which rent case was subsequently withdrawn by order passed on 1-10-1989, the photostat copy of which has been produced before the Rent Controller by the present appellant himself. In the meanwhile, on 29-5- 1989 the present respondents purchased the said property through registered sale-deed from the said Wasif Ali and Nadir Ali the two sons of deceased Musharaf Ali for valuable consideration through a registered sale document. The present respondents are then said to have orally intimated the present appellants about the purchase of the property and also sent notice through registered A.D. And notice through telegram on 2-9-1989 but the receipt of the same is denied by the present appellants. However, it is an admitted fact that the appellant sent a notice to the present respondents on 18-7-1989 which was replied by the present appellants on 29-7-1989 whereby the present appellants were informed about the purchase of the property by the present respondents. The respondents then filed the rent case against the present appellants on the ground of default, subletting to appellant No,2 and requirement for personal use. Written statement was filed by the present appellants who have denied the relationship of landlord and tenant on the ground that the son of the said Musharaf Ali the original owner had taken a loan of Rs,70,000 from the son of the present appellant No,1, namely,Nizamuddin and that subsequently he had agreed to adjust the said amount against the future monthly rent. He has taken another plea that the said Wasif. Ali had agreed to sell the suit premises to the present appellant No,1 in consideration of the adjustment of Rs,70,000. In the proceedings before the Rent Controller on 20-12-1990 wherein he has held that the relationship of landlord and tenant did exist between the parties and directed the present appellant to pay the current monthly rent of the premises in question at Rs,1,100 from 19-5- 1989. He has directed the appellant to deposit the arrears of rent amounting to Rs,19,800 within four.Months from the dates of the order and also to deposit future rent on or before 10th of each succeeding calendar month. This order was not complied with and, therefore, an application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 was moved. This application was also contested by the present appellants and finally the impugned order was passed on 8-8-1991. Being aggrieved the present appellants have preferred this appeal.
5. ' I have heard the learned counsel for the parties. It is an admitted position that the order passed by the Rent Controller on 20-12-1990 has not been complied with. However, the learned counsel for the appellants has made three-fold submissions.
6. ' Firstly, he has contended that no relationship of landlord and tenant exists between the present parties and, therefore, the present appellants are not bound to comply with the order of the Rent Controller passed on 20-12-1990. The record shows that the plea taken by the learned counsel on this point is that no notice under section 18 of the Sindh Rented Premises Ordinance, 1979 has been served on the present appellants. However, it is admitted that the present appellants had themselves sent a notice to the respondents on 18-7-1989 which was replied by the respondents on 29-7-1989 wherein they were informed that the present respondents had purchased the said property and had also asked the present appellants to vacate the premises as they require the same for personal use. This admitted fact demolishes the contention raised by the counsel for the appellants. Secondly, the plea taken by the learned counsel for the appellants is that his son had advanced a sum of Rs,70,000 to the said Wasif Ali the son of the original Owner and that the said amount was agreed to be adjusted in future rent. It is also pleaded that the said Wasif Ali had agreed to sell the case premises to the appellants by adjusting Rs,70,000 towards consideration.
7. These pleas on the very face of it are inconsistent. However, there is nothing on the record to indicate that any such agreement was reduced in writing or any such undertaking was given by the said Wasif Ali. The present appellants contested the two applications moved under subsections
(1) and (2) of section 16 of the Ordinance. At no time had he taken this plea or filed any document or affidavit of any person including Wasif Ali to support his contention. Today, in Court the learned counsel has shown one agreement but the same had not been produced before the Rent Controller. The reason assigned by the learned counsel is that the said agreement was in possession of the son of the present appellant who had gone to United States of America and, therefore, it could not be produced earlier. Be that as it may, nothing has been said in the objections filed to the above-said two applications about this fact. In these circumstances, I am not inclined to accept the contention of the learned counsel with regard to this plea. The third plea taken by the learned counsel is that on 5-3-1991 he had moved an application before the Rent Controner for condonation of delay and for extension of time to deposit the rent in Court under the above-said orders of the Rent Controller. This application is at page 67 of the record of the Rent Controller. Even this plea of the appellant is inconsistent with his first ground taken that he had purchased the property or that he had paid the rent in advance amounting to Rs,70,000 and, therefore, the order of the Rent Contrller is not binding on him. It may also be observed that in this application the ground given for non-payment of the arrears of rent in due time is that the appellant had gone away to Punjab where he had invested money in the purchase of buffaloes and, therefore, he could not pay the arrears of the rent. This application shows that it was placed before the Rent Controller on 18-5-1991 and the Rent Controller had ordered notice of this application but no efforts were made to get the notice issued or served upon other side when in the meanwhile the application under section 16 (2) of the Ordinance was moved on 27-4-1991 which was contested by the present appellants without any mention of the said application which was moved by him.
8. ' In view of the above discussion I am inclined to hold that the non-deposit of arrears of rent in due time is not only on account of negligence on the part of the appellants but is also contumacions.
9. Accordingly this appeal is dismissed with costs. The appellants shall hand over the vacant possession of the case premises to the respondents within sixty (60) days from the date of this order. It will be open for the respondents to withdraw the rent deposited in two Courts.