1. ' By this common judgment I intend to dispose of these two appeals as both the appeals involve common points of law and fact and the respondent landlady in both these appeals is the same.
2. ' Briefly the facts are that the respondent had purchased the building in which the present appellants are the tenants, in occupation of two of the shops. The building was purchased by the present landlady from its previous owner through a sale-deed registered with the Sub-Registrar, T Division IV, Karachi on 14-2-1-983. Thereafter, the landlady served the appellants with a notice under section 18 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance. Each of the appellants in response to the said notice, sent a pay-order amounting to Rs,110 being the rent for the months of February and March, 1983 alongwith a reply. The respondent landlady then through her Advocate sent another notice, dated 10-7-1983 whereby she returned the said pay-order on the ground that the appellants were in arrears since May, 1982 and, therefore, the rent tendered by them was not all the arrears. In the meanwhile the appellants had tendered the rent for the month of April, through money order on 13-5-1983 which was note accepted by the landlady. Again the rent for two months i.e. April and May was tendered through money order on 11-6-1983 which was also refused by the landlady. The appellants then filed their respective Miscellaneous Rent Cases and started depositing the rent in Court from 19-7-1983. The first deposit in each case was made on 19-7-1983 for a sum of Rs, 220 being the rent for four months. The landlady filed the rent cases for the ejectment of the appellants on the ground of default and personal use. The learned Rent Controller by an order passed on 22-2-1987 was pleased to allow the rent cases on both the grounds and the appellants were ordered to hand over the vacant possession of the premises in dispute. The appellants filed the present two appeals before this Court, which were heard by my Lord Justice Saleem Akhtar, J. (as his Lordship then was), who dismissed the appeals by judgment passed on 30th April, 1989. However, in the judgment his Lordship upheld the findings of the Rent Controller to the effect that the appellants were defaulters in payment of rent but the findings on the grounds for 'personal use was set aside. The present appellants then preferred the appeals before the Honourable Supreme Court being Civil Appeals Nos.181-K and 182-K of 1990. The appeals were allowed by the Honourable Supreme Court vide judgment passed on 3-4-1991 and both the appeals have been remanded to this Court to be heard afresh in view of the following observations made by the Rent Controller in her order which had not been dilated upon in the judgment of this Court:-- "The opponent has admitted that he was served with notice under section 18 of Sindh Rented Premises Ordinance, therefore, he remitted rent for the months of February and March, 1983, by pay order. ut such was not acknowledged by applicant, therefore, he remitted rent for April, 1983. When pay order of rent of February and March, 1983, was not acknowledged by applicant by pay order, then why he did not tender rent of February and March, 1983, through M.O. He only tendered rent for the month of April, 1983 through M.O. It means opponent had committed default in payment of rent during the ownership of the applicant. Hence in these circumstances I am of the view that opponent has miserably committed default in payment of rent with effect from May, 1982, to March, 1983."
3. ' The matter has come up for regular hearing today. I have heard Mr. Monem Khan, Advocate for the appellants and Mr. Mirza Waqar Hussain, learned counsel for the respondent.
4. ' The learned counsel for the appellants has submitted that after receipt of the notice under section 18 of the Ordinance the rent for the two months was tendered through pay-order within thirty days, which pay-order was received and kept away by the landlady until 10-7-1983 when the same was returned. From this the learned counsel has submitted that the appellant was absolved of any penalty that could be imposed upon him under section 18 Of the Ordinance or section 15(2) of the said Ordinance. He has further submitted that thereafter the rent for two months was also tendered through money order in due time but the same was declined by the landlady. He has further submitted that on 10-7-1983 the landlady had returned the abovesaid pay-order, and therefore, the appellants approached the Rent Controller and started depositing the rent in Miscellaneous Rent Cases.
5. ' Mr. Mitza Waqar Hussain, Advocate for the respondent, has submitted that even on appellant's own showing he has committed default with regard to payment of rent for the months of February and March, 1983 and, therefore, he is liable to be ejected.
6. ' I have given anxious consideration to the submissions of the learned counsel for the parties. It may be observed that the Honourable Supreme Court, in this matter has held that the respondent landlady would be entitled to rent for the period commencing from the date of her purchase of the building in question i.e. 14-2-1983 and would not be entitled-to any rent for the period prior to that.
7. However, it is an admitted position that the notice under section 18 of the Ordinance was given on 3-3-1983 and the rent for the two months was tendered through pay-order on 2-44983. There is dispute about these dates. In view of the judgment of the Honourable Supreme Court only 17 days had elapsed between the purchase of the building by the landlady and the service of notice under section 18 of the Ordinance. Giving a further period of 30 days by 2-4-1983 the date on which the pay-order was sent, the landlady could have been entitled to rent for one month and seventeen days but instead the rent for two months was tendered. The landlady having received and kept away the pay-order cannot by entitled to pray for imposition of penalty on this account. The very fact that the pay-order was kept away by the landlady for a period of more than three months gives rise to inference that she had mala fide intentions to create a ground for ejectment. She again refused to accept the rent tendered to her through money order. In these circumstances, the appellants could not have been penalised for having committed the default as contemplated under section 15(2) of 'the Ordinance. However, there is another aspect of the case that it was the obligation cast upon the appellants to have deposited the rent in Court on account of above refusal by the landlady, this deposit in. Court had to be of all arrears due right from 14-2-1983 but in this appellants have failed which is obvious in view of his own admission. In each of the two cases the respective appellant in paragraph four of his affidavit-in-evidence has stated as under:-- "4. That I say that the aforesaid tender of rent was, however, not acknowledged, whereafter I remitted the rent for the month of April, 1983 by means of Postal Money Order, dated 14-5-1983 No.2325 which too was refused. I produce money order receipt and the Counterfolio as Exh.5 to Exh.G/1.
8. ' That similarly I tendered rent for the months of April and May, 1983 by way of Money Order No.3007, dated 11-6-1983 which was also refused, thereafter I started depositing rent. in Miscellaneous Rent Case No.2699 of 1983 from the period 1-4-1983. Photostats of the receipts are produced herewith as Exhs.D/1 and D/2 to D/31."
9. ' Not only this but also the photostat copy of the rent receipt produced by him with regard to first deposit in the Court on 19-7-1983 shows that an amount of Rs,220 has been deposited which is rent for four months and that there is an endorsement on the receipt showing the months April, May, June and July, 1983. There is also Nazir's report on the reverse of the application for withdrawal of rent amount made by the landlady on 6-4-1985 which shows that after 19-7-1983 rent has been deposited in Court for every subsequent month. No rent has been deposited for February and March, 1983 by the appellants which rent still remains outstanding. No explanation has come on record from the appellants as to why this rent has not been deposited in the first instance at the time this Miscellaneous Rent Case was filed or even after the judgment of the Honourable Supreme Court passed on 3-4-1991.
10. ' In this view of the matter the appellants are liable, to be ejected and the issue of default stands proved against them. Accordingly, these appeals are dismissed with costs. The appellants shall hand over the vacant peaceful possession of the premises in dispute to the respondent within sixty
(60) days from the date of the judgment.