1. ' This appeal has been filed against the judgment passed by the IIIrd Senior Civil Judge/Rent Controller, Karachi (Central) in Rent Case No,335/1988.
2. ' Briefly the facts are that the present appellants claim to be the heirs of Syed Karim Hyder the original owner of Bungalow No,C-43/6, Federal B Area, Karachi while the respondent is a tenant in the southern portion of the said bungalow. The case of the appellants further is that this southern portion of the bungalow hereinafter referred to as the disputed premises was rented out to the respondent by their deceased ancestor vide agreement dated 30-9-1981 on a monthly rent of Rs,800 plus Rs,16 towards electricity charges. The appellants claim that their ancestor Syed Karim Hyder died on 12-12-1981 and thereafter they sent a notice under section 18 of the Ordinance on 30- 12-1981 which was not received by the respondent. The second notice was again sent on 17-1-1983 which was also not received and, therefore, third notice was sent on 27-2-1984 which was received by the respondent and replied vide his reply dated 24-3-1984 wherein he stated that he was treating the said notice as a notice under Section 18 but demanded the Letters of Administration.
3. The case of the appellants further is that the respondent has failed to pay the rent since December, 1982 till the time of filing of the rent case and, therefore, he has fallen in default and was liable to ejectment. The other ground taken by the appellants is that the respondent has converted the residential premises into a towel factory and thus impaired the value and utility of the said premises.
4. ' The respondent filed his written statement and contested the rent case. The case of the respondent is that he is a tenant in the premises since the year 1974 and that he has been paying the rent in advance by means of deposit in bank account of late Syed Karim Hyder, the original owner and in this way he paid the rent till December, 1984 in advance and thus no default has been committed. As regards the conversion of the disputed premises, the respondent has pointed out that he has not violated any terms and conditions of rent agreement. The rate of rent is admitted and so also the execution of Rent Agreement dated 30-9-1981. On these pleadings the following issues were settled by the Rent Controller:
(1) Whether there exists relationship of landlord and tenant between the parties?
(2) Whether the opponent failed to pay the rent as alleged?
(3) Whether any of the terms of the tenancy were infringed by conversion to a user other than for which the premises was let out?
(4) Whether the value or utility of the premises has been materially impaired and whether any nuisance has been caused to the neighbours as alleged?
(5) What should be the order?
5. ' Appellants filed affidavits-in-evidence of Syed Sajjad Hyder and Ali Imam Zaidi. Both these witnesses were cross-examined while the respondent filed his own affidavit-in-evidence and was also cross-examined. The learned counsel has submitted the written arguments and the learned Rent Controller was pleased to dismiss the rent case. Being aggrieved the present appellants have preferred this appeal. The Rent Controller has answered issue No,1 in affirmative holding that the relationship of landlord and tenant exists between the parties. This finding has not been challenged nor the respondent has pressed this issue. Accordingly I maintain the findings of the Rent Controller on this issue. As regards issue No,2 the learned counsel for the appellants has submitted that the Rent Controller has erred in answering this issue in negative. The learned counsel for the appellants has argued that the appellants had sent the first notice to the respondent purporting to be notice under section 18 on 30-12-1981 and again on 17-1-1983 but both these notices were not received by the respondnet. He has submitted that in the cross-examination the respondent was shown these two notices being Exhs. A-5/3 and A-5/4 and that respondent has admitted that these notices were sent on correct addresses. The learned counsel has also referred to the certificate from postal authorities being ExhA-5/5 to the effect that the second notice dated 17-1-1983 was returned as no such person (the respondent) was available on the given address. In view of these facts the learned counsel has submitted that admittedly the notice was addressed on the correct address of the respondent, was sent through registered post having been prepaid for and, therefore it should be deemed to have been served on the respondent. However, it is admitted that a notice dated 27-2-1984 was served on the respondent wherein he was informed about the death of the original owner who died on 12-12-1981 and, therefore, a demand for rent for the period December, 1982 to February, 1984 was made. This notice was replied by the respondent through his reply dated 24-3-1984. In this reply the respondent has stated that the rent was being deposited in advance in bank account of the deceased and that the rent for the period ending December, 1984 had already been deposited. However, in this reply no particulars of deposit are given nor it is stated as. To under whose instructions this rent was being deposited in the bank. Admittedly, the agreement of tenancy did not contain any clause for deposit of rent in bank. In fact no date or mode of payment has been mentioned in the said agreement. The respondent has produced on record four pay-in- slips of the bank showing the deposit made by him in the bank. These slips are: "(i) On 7-3-1982 Rs 9,792.
(ii) On 6-3-1983 Rs 4,896.
(iii) On 2-11-1983 Rs,4,896.
(ii) On 31-1-1984 Rs,9,792."
6. ' From this the learned counsel for the respondent has submitted that these pay-in-slips would show that rent for the period ending December, 1984 had already been paid when the notice under section 18 was received by the respondent. Even this contention of the learned counsel for the respondent would show that the rent for the period July 1983 to December 1983 was deposited in bank on 2-11-1983 which itself would constitute a default. However, the learned counsel for the appellants has submitted that even if this point is ignored then too a deposit of rent in bank without the consent of the landlord would fall outside the scope of provision of section 10 of the Ordinance.
7. He has also submitted that in the cross-examination the respondent has admitted that he was required to pay the rent in advance before 10th of each calendar month. From this the learned counsel has submitted that it does not lie in the mouth of the respondent to take plea of deposit of rent in Court. He has referred to section 10 of the Sindh Rented Premises Ordinance, 1979 which provides for only three modes of payment of rent by the landlord i,e,, the tenant has to pay the rent directly to the landlord or in case he refuses or avoids to accept the rent, the tenant may send the rent to the landlord through postal money order or deposit the same with the Rent Controller within whose jurisdiction the premises is situate. In the present case it may be noted that admittedly no attempt was made by the tenant to send the rent through postal money order or deposit the same with the Rent Controller. Reliance may be placed on the case of UBL v. Ehsanul Haque (1989 CLC 287). In the present case also it may be observed that according to the respondent's own statement in cross-examination, he was required to pay the rent in advance before 10th of each calendar month and that he has not tendered the rent through any of the three modes of payment of rent as provided in section 10 of the Ordinance. He has, therefore, fallen in default as provided under law and is liable to be ejected. The learned counsel for the respondent has submitted that in the instant case the respondent had been depositing the rent in bank since quite a long time under the instructions of original owner Syed Karim Hyder. The first pay-in-slip which has been produced on record is dated 7-3-1982 which is after the death of the original landlord and also after the issuance of first notice under section 18 of the Ordinance. The learned counsel for the respondent has then placed reliance on a letter produced as Exh.O/6 which is at page-115 of the record of the Rent Controller. This is a photostat copy of the letter purported to have been sent by the original owner to the respondent on 23-1-1980 i,e, before the execution of the present agreement of tenancy. In this letter it appears that instructions were given to the respondent to deposit the rent in bank. This letter has not been mentioned in the written statement nor the present appellant No,1 Ali Imam Zaidi has been confronted with this letter in his cross-examination. This letter in fact has been placed on record for the first time with the respondent's affidavit-in-evidence on 2-5-1988, about four months after the appellants were cross-examined and closed their side. This photostat copy of the letter also does not stand proved in law as neither it has been proved that the letter is in the handwriting of the deceased or is signed by the deceased original owner. Production of the photostat copy of this letter on record in this manner would reflect on the respondent and shows his mala fide. If this letter was available with the respondent, then why no mention of this letter was made in the Written Statement or why the appellant was not confronted with the letter in his cross- examination. Certainly the appellant cannot be taken by surprise by introducing evidence in case for the first time after the appellants had closed their side. As it has already been observed that this letter by itself does not stand proved I am not inclined to accept the contention of the learned counsel for the respondent. Accordingly I set aside the findings of the Rent Controller on this issue and answer the issue in favour of the appellants holding that the respondent has committed wilful default and is liable to be ejected.
8. ' As regards issues Nos,3 and 4 the learned counsel for the appellants has not been able to show if any violation of the terms and conditions of the tenancy agreement has been committed. The learned counsel for the respondent has submitted that from the very induction of the respondent as tenant he has been using these premises for the same purpose, and, therefore, there is no question of conversion of the premises for purpose other than for which it was let out. The learned counsel for the respondent has further submitted that the appellants have not examined any person having technical knowledge to prove that the value and utility of the premises have been impaired materially. The learned counsel for the appellants has not been able to meet this contention of the respondent. I, therefore; find no reason to interfere with the findings of the Rent Controller on these two issues and maintain the same.
9. ' In view of findings on issue No,2 to the effect that the respondent has committed wilful default in payment of rent, I would accept the present appeal, set aside the judgment of the Rent Controller on issue No,2 and allow the rent case filed by the appellant on the ground of default in payment of rent. The respondent is directed to hand over the vacant possession of the disputed premises to the appellants within ninety (90) days from the date of this order.
10. ' Above are the reasons for the short order announced in Court on 2-11-1992.