HAZIQUL KHAIRI, J.--By this common judgment I will dispose of F.RA.No.58/87, F.R.A.No.59/87 and F.RA.No.60/87 filed by Ikramullah and two others, landlords, against their tenants, namely Muhammad Tufail, Muhammad Khursheed and Mumtaz Ahmed respectively. The said landlords are aggrieved by a common order dated 31-5-86 passed by the learned Controller -I West, Karachi, dismissing Rent Case No.286/85, Rent Case No.2283/85 and Rent Case No.2297/85 in which they sought eviction of their said tenants on the ground of default in payment of rent for the period from November, 1978 to February, 1979.
2. The said rent cases were under Section 13 (2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 in respect of three independent flats of a building on plot No.2, 2nd Floor Block-4, sub-Block-F, Nazimabad, Karachi at the monthly rent of Rs.350/-, Rs.400/- and Rs. 450/- respectively and were filed by deceased Bilqis Begum of whom the appellants are sons and daughter and who died during the proceedings before the learned Controller. The common defence taken by all the said three tenants was that the deceased first with ulterior motives had initiated ejectment proceedings against them before the Martial Law Authorities in 1979, but the same was of no avail she therefore disconnected water supply for a period of 7 years. It was denied by them that they had committed any default in payment of rent. According to them Mst. Sultana Khalilullah, the attorney of the deceased and now one of the appellants had left for Manila and no her instructions they had been making payments of monthly rent to one Abdul Haleem Sheikh, Director Information, Government of Sindh, and also a co-tenant of the same building. In this way she was being paid rent right in time for each month for over a period of l2 months. In so far as the alleged period of default is concerned the same was deposited in her account with the Bank, on the failure on the part of the said attorney to collect the rent from the said Abdul Haleem Sheikh, her authorised agent. Apart from this, an advance of two months' rent was still lying unadjusted in their respective accounts.
3. The appellants examined the said attorney Mst. Sultana Khalilullah, who produced power of attorney, agreements of tenancy and statements of account. The respondents, on the other hand, examined themselves and produced the said Abdul Haleem Sheikh, Director of Information, Government of Sindh. In her affidavit-in-evidence Msf. Sultana Khalilullah, reiterated that the respondents had failed to pay rent for the months of November, 1978 to February, 1979. She however admitted that the respondents or someone on their behalf had deposited the rent for the said period in her account but after the due dates. It was also admitted by her that she had gone to Manila and had given the number of her account and the name of the Bank to the respondents and the rent was always being deposited in her account in her absence.. It was however specifically denied by her that she had authorised Mr. Abdul Haleem Sheikh or anyone else to receive money or cheque towards rent from anyone on her behalf. In cross- examined she had admitted that the system of deposit in Bank commenced since she left for Manila and she wanted to continue it, but the tenants demanded Rs.40/- per month as the rikshaw charges. It was further admitted by her that her account number was changed due to computerisation.
4. Respondent Muhammad Tufail in his affidavit-in-evidence had stated that he had been making payment of rent through cross cheques to the appellant's predecessor Mst. Bilquis Bano. After the said attorney left for Manila he as well as the two other tenants had been depositing rent in her account in the Habib Bank Limited. However, on her return she told them that she has no more account in the Bank and had appointed Mr Abdul Haleem Sheikh, Director Information, Government of Sindh, to collect cross cheques from him and Pay Orders from other tenants. Thus he started handing over cross-cheques in advance to the said Mr.Abdul Haleem Sheikh. Accordingly he left cross cheques drawn on 1-12-1978, 1-1-1979, 1-2-1979, 1-3-1979 and 1-4-1979 for the respective preceding months to the said Mr.Abdul Haleem Sheikh, but the said attorney failed to collect the cross-cheques. Therefore, he had to take back the same from Mr.Abdul Haleem Sheikh and deposited the same in her account. In support he has produced Ex.0.6/2 being a statement from the bankers as well as photostat copies of five cheques drawn on Habib Bank Ltd. In the name of the appellant's attorney. Respondent Mumtaz Ahmed tenant in R.C.No.2297/85 in his examination- in- chief had stated that he had been depositing the rent in the account of the said attorney in her Bank. However, subsequently on her instructions he started remitting rent to her through a co- tenant and a very responsible and senior officer of the Government, namely, Abdul Haleem Sheikh, Director Information, Government of Sindh, through Pay Orders. In so far as the rent for the alleged default period is concerned, the same was duly tendered to the said Mr.Abdul Haleem Sheikh by Pay Orders dated 8-11-1978, 3-12-1978, 4-1-1979 and 1-2-1979. The said attorney wilfully failed to collect these pay orders from Mr.Abdul Haleem Sheikh. He has also filed a certificate (Ex-0.6/2) from his Bankers and the photo copies of Pay Orders (Ex.0.6/3 to 0.6/7) showing that Pay Orders as aforesaid were issued in the name of the landlady. It was also alleged by him that the said attorney changed her bank account subsequently. Similar testimony was given by respondent Muhammad Khursheed tenant in R.C.No.2283/85 who also produced the statement of account and photo copies of Pay Orders from the Bank showing that he committed no default for the alleged period of default. He had also come out with the same allegations against the appellant's attorney.
5. Mr.Abdul Haleem Sheikh the said co-tenant of the appellant who at the relevant time was Director Press Information, Government of Sindh in his affidavit had stated that the attorney of Mst.
Bilquis Bano, the deceased landlady, used to come and collect rent from him through pay order/cheques on her specific request and with the consent of the respondents from them and other tenants. The arrangement continued for a period of 20 months. The said attorney used to come in the first week of every month and for about 1 years, there was no complain, in so far as the rents for the month of October, 1988 were concerned he had to remind her to come and collect the same but she failed to do. On the 10th of December, 1978 she told him that she was not well and would collect the same soon. Similarly, he had to remind her to collect rents for the month of December, 1978. She promised to collect it, but she failed to do so. In 'he same manner she failed to collect rents for the months of January and February, 1979. In cross-examination he stated that he had vacated the tenament in his possession, which is in possession of the appellant. It was admitted by him that he was hot authorised in writing by the deceased or her successor to collect rent on their behalf from the respondents. He, however, voluntarily stated that the said attorney was suffering from gouth, therefore, she could not go from one tenant to other and since she was friendly with his family, therefore, on her request he used to collect the rent from respondents. The Pay Orders/Cheques were being given by the respondents to him by the 5th of every month.
6. The said Mrt. Sultana Khalilullah was the attorney and Rent Collector of the deceased Mrf. Bilquis Begum and is now one of the landladies. It is an admitted position that on her directions the respondents were asked to deposit the rent in her account with the? Bank instead of paying the same directly to her. The stand taken by all the respondents was that she had authorised Mr Abdul Haleem Sheikh Director in Government of Sindh to receive cheques/pay orders on her behalf which is denied by her. His version is that Government of Sindh was also the tenant of the deceased A/rt.
Bilquis Begum and he was allotted the house as Government Servant. He was a family friend of the appellants and the deceased and was living in the neighbour-hood of the respondents. On the date of his deposition he had already retired and otherwise he was not an interested witness. There was no reason for a man of his position to depose falsely to support the respondents. His deposition not only inspires confidence but has also remained unshattered and if he is to be believed, the respondents have to believe as well as he has corroborated their statements. In other words the respondents had committed no default in payment of rent and the said attorney herself had not collected the cheques/pay orders from the respondents. What however is established beyond any doubt is that on her directions the mode of payment of rent was modified and they were asked to deposit the rent in their attorney's account with the Bank. The effect of these directions would be to absolve the respondents of their obligation to make payment directly to the appellant/landlords in terms of Section 10(2) of the Sind Rented Premises Ordinance, 1979. Further to this, it is also an admitted position that the said attorney had changed her Bank Account and did not inform the respondents about it. The delayed payment of rent by the respondents by 31-3-1979 for the alleged period will not amount to default on their part for which in the circumstances of the case, the appellants themselves are responsible.
7. With regard to the contention of the learned counsel for appellant that the rent for two months lying with the appellant as security was not liable to be adjusted towards arrears of rent, the position is no more ambiguous. The said security was lying with the appellant for due performance of contract by respondents and was payable on the respondent's vacating the respective premises held by them. This position has been made clear in the case of Mrs. Zarina Khawaja vs. Agha Mahboob Shah, P.L.D. 1988 S.C.190. I am therefore In the result all the three appeals are dismissed with costs.