1. ' Appellant Mst. Sajida Begum in her appeal filed under section 21 of Sindh Rented Premises Ordinance (hereinafter to be mentioned as the Ordinance) has challenged her ejectment ordered from the premises in litigation by Ist Senior Civil Judge and Rent Controller, Karachi Central in Rent Case No,411/1987.
2. ' Admittedly the appellant was tenant of Hassan Abbas husband of the respondent in ground floor of House No,451 at New Golimar (Gul Bahar), Karachi on rent of Rs,50 per month. Admittedly Hassan Abbas has died on 14-5-1979. In his lifetime Hassan Abbas had filed Rent. Application No, 1988 of 1972 for eviction of the appellant from the premises in litigation. Said application was dismissed in default on 23-1-1980, after death of Hassan Abbas. In said rent application a rent order was passed on 16-5-1973 in pursuance of which the rent was being deposited in Court by the appellant/tenant.
3. ' Rent Application No, 411/1987 was filed on 7-4-1987 by the respondent for eviction of the appellant from the premises in litigation on the sole ground of default in payment of rent since July 1982. The respondent claimed that after death of her husband Hassan Abbas, she sent intimation to the appellant under notices dated 1-10-1986, 3-3-1987 and 15-3-1987 to the effect that she had become landlord in place of Hassan Abbas, but said notices were returned with evasive remarks.
4. ' The Rent Application was opposed by the appellant who in her written statement stated that Hassan Abbas had filed against her Rent Case No,988/1970 on the grounds of default and personal requirement but the same was dismissed on merits on 15-2-1972. Appellant added that in said case she was ordered to deposit the monthly rent with Nazir of the Court and she complied with such. Directions. Another Rent Case No,1988/72 was also filed by Hassan Abbas for her eviction and in said case a rent order was passed on 16-3-1973 which was being complied with regularly.
5. Appellant denied receipt of any notice from the respondent about change of ownership of the premises in ltigation. The ground of default was controverted. In present Rent Case No,411/87 a fresh order about deposit of rent was passed. On 13-12-1989 with consent of the parties. According to the said order dated 13-12-1989 the amount earlier deposited by the appellant shall be withdrawn and deposited in the present case in adjustment of rent within 15 days, while the future rent was to be deposited at the same rate of Rs,50 p.m., on or before 10th of each calendar month till disposal of the case. The arrears of rent were to be deposited from the month of July 1982 by withdrawal of such amount from the regular rent application substituted for M.R.C. As per order dated 241.-1990.
6. ' After recording evidence of the parties, learned Rent Controller under the impugned judgment dated 24-5-1992 allowed the application for ejectment and directed the appellant to vacate the premises within 60 days. Hence this appeal.Mr. Abdul Karim Siddiqui learned counsel for the appellant argued that the appellant had never been in default because she had been depositing the rent regularly in Rent Application No, 1988/72 in pursuance of the rent order passed in said case on 16-5-1973. It was added that the appellant never knew about death of Hassan Abbas or about the respondent having stepped into the shoes of the landlord and as such the rent continued to be deposited in Rent Case No,1988/72. It was further argued that deposit of rent by the appellant till July 1982 was not challenged and that no notice about change of ownership was received by the appellant due to manipulation by the respondent. Learned counsel for the appellant next argued that had there been non-compliance with the order dated 16-5-1973 or with the order dated 13-12- 1989 amended on 29-1-1990, the respondent would have moved for striking off the defence. It was further argued that even if there was nonpayment of rent for any period it was not due to any fault by the appellant and as such she was not a defaulter. In support learned counsel cited the case of Noor Muhammad and another v. Mehdi (PLD 1991 SC 711).
7. ' Mr. Sardar Qureshi. Learned counsel for the respondent argued that deposit of rent in name of deceased Hassan Abbas was not valid deposit in the eyes of law and as such the appellant is defaulter for the purposes of section 15 of Sindh Rented Premises Ordinance. It was next argued that the notices under section 18 of said Ordinance were sent to the appellant three times one after the other by registered post and if the appellant had not received the same, he should have examined the postman and in absence of evidence of postman, the notices shall be deemed to have been served upon the appellant. It was also argued that filing of rent case by itself amounted to issuance of notice to the tenant, under section 18 of the Rent Ordinance. Learned counsel for the respondent relied on report of the Nazir submitted in Rent Case No,1988/72 about non-deposit of rent after 8-7-1982 but such report was not filed in the trial Court. In support learned counsel for the respondent cited the cases of:
(i) Pakistan National Shipping Corporation v. M/s. General Service Corporation (1992 SCM R 871).
(ii) Khair Muhammad v. Abdul Hamid (1982 CLC 101).
(iii) Ghulam Muhammad v. Muhammad Sharif (1987 CLC 2439).
(iv) Qadri Brothers Foundry and Workshop and others v. Masood Hussain Antria (1991 CLC 1042).
(v) Mst. Kulsum Begum and another v. Muhammad Siddique (1991 CLC 1134).
(vi) United Bank Ltd. v. Ehsan Ellahi (1989 CLC 287).
(vii) Israr Ahmed v. Abdul Aziz (1987 CLC 336).
8. ' First point to be determined is, as to whether the provisions contained in section 18 of the Ordinance were complied with, after death of Hassan Abbas. In para. 4 of her rent application respondent Mst. Syeda Umme Rabab Bano stated that after death of previous landlord she sent the intimations to the appellant on 1-10-1986, on 3-3-1987 and on 15-3-1987 by registered post A/D but all the envelopes were returned with evasive remarks. In this way she admitted, that not a single notice sent to the appellant was served upon him. The presumption of the appellant having been served with the three notices, could have arisen if the same had not come back to the respondent, after they were sent at correct address of the appellant. For this reason the cases of Ghulam Muhammad v. Muhammad Sharif (1987 CLC 2439) and Mst. Kulsum Begum and another v.
9. Muhammad Siddique (1991 CLC 1134) are distinguishable. In the present case no presumption would arise to the effect that the notices sent to the appellant under registered envelopes containing his correct address, be deemed to have been received by him, because the same were received back by the respondent. However filing of the rent application by the respondent against the appellant can be treated to be the notice from the former to the latter under section 18 of the Ordinance, as per the view taken in the cases of Israr Ahmed v. Abdul Aziz (1987 CLC 336), Mst.
10. Kulsum Begum and another v. Muhammad Siddique (1991 CLC 1134) and Ghulam Muhammad v.
11. Muhammad Sharif (1987 CLC 2439). Present rent case was filed on 7-4-1987 while the appellant was served by publication in daily Mashriq, Karachi dated 18-10-1987 for 27-10-1987. Hence in terms of said authorities, the appellant can be treated to have been served with notice under section 18 of the Ordinance on 18-10-1987. The default, according to the respondent occurred from July 1982 till March 1987. Liability of the appellant to pay monthly rent to the respondent arose on and from 18-10-1987 if simple filing of rent case against him is taken to be his service with notice under section 18 of the Ordinance. Monthly rent was being regularly deposited by the appellant in Court of the Rent Controller, as appears from the order dated 13-12-1989 amended by the order dated 29-1- 1990. Perusal of said order dated 13-12-1989 shows that even on said date the appellant was not alleged to have defaulted in depositing monthly rent for any month since passing of the rent order dated 16-5-1973 in previous Rent Application No, 1988 of 1972. It is correct that remittance of rent in name of a deceased through cheques, was no payment in the eye of law, as per the view taken in the case of Qadri Brothers Foundry & Workshop and others v. Masood Hussain Antria (1991 CLC 1042). In the instant case there is nothing on record to show that the appellant knew about death of Hassan Abbas prior to knowing about filing of Rent Case No,411 .Of 1987 against her by the respondent. Hence the case of Qadri Brothers is distinguishable.
12. ' Deposit of rent by the appellant in Court of the Rent Controller in Rent Case No, 1988 of 1972 even after death of Hassan Abbas and after dismissal of said rent case, would constitute at the most default of technical nature like the one which occurred in the case of Noor Muhammad and another v. Mehdi (PLD 1991 SC 711). In said case the tenant deposited the rent within time but in the previous proceedings between the same parties, and not in the fresh proceedings. It was held that such default being purely technical in nature was not default on part of the tenant to invite penal provisions of the Ordinance.
13. ' Remaining authorities cited on behalf of the respondent do not further his case. In Pakistan National Shipping Corporation (1992 SCM R 871), it was held that object of section 18 of the Ordinance was to intimate the tenant about transfer of the property or name of the new landlord and that section 18 is not to be strictly construed if the tenant has positive knowledge of the transfer. In the case of United Bank Ltd. (1989 CLC 287) three modes of payment of rent have been given. This authority could apply if the appellant was duly served with a notice under section 18 of the Rent Ordinance and if there was no order directing her to deposit the rent in Court. In Khair Muhammad (1982 CLC 101), the view taken was that the amount of rent deposited under order of the Rent Controller in a previous case, was not a payment under clause (i) of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance. In said case there was no change of the landlord.
14. ' For the foregoing reasons I hold that the appellant was not a defaulter within the meaning of clause (ii) of subsection (2) of section 15 of the Ordinance and consequently her appeal is accepted and the impugned order is set aside and the rent application filed by the respondent stands dismissed, with no order as to costs.