1. Appellants M/s. Delsec (Pvt.) Limited have challenged their eviction from the premises in litigation, ordered by IVth Senior Civil Judge and Rent Controller, Karachi East in Rent Case No.245 of 1989.
2. Admittedly the premises in litigation viz. Flat No.1 on 1st Floor of the building on Plot No.683-C, Central Commercial Area, Block II, PECHS, Karachi is in possession of the appellants, having obtained the same from Mst. Saeeda Akhtar under a Tenancy Agreement dated 15-6-1987. Rent of the premises is Rs.1,800 per month as asserted by the respondent and not denied by the appellants.
3. Respondent Syed Basit Ali, who claimed to have purchased the said building including the Flat in litigation from Mst. Saeeda Akhtar under a deed of conveyance dated 20-12-1988, filed Rent Case No.245 of 1989 in Court of a Rent Controller under section 15 of Sindh Rented Premises Ordinance (hereafter mentioned as the Ordinance) for eviction of the appellants from the Flat in litigation on the only ground that the appellants had defaulted in payment of rent since January, 1988. Notice about change of ownership was sent by the respondent on 24-12-1988 to the appellants, who received the same.
4. The Rent Case was contested by the appellants, who in their written statement challenged the Tenancy Agreement dated 15-6-1987 to be unenforceable under the law because it was not attested in terms of section 5 of the Ordinance. The appellants, denied existence of relationship of landlord and tenant with the respondent. It was added that copy of the deed of conveyance dated 20-12-1988 was not supplied to the appellants who claimed to have paid to Mst. Saeeda Akhtar a sum of Rs.25,000 as fixed deposit, while taking from her the flat on lease. In respect of the ground of default, the appellants stated that a letter was written to previous landlady namely Mst. Saeeda Akhtar for copies of appropriate documents but she did not reply and even then a draft of Rs.3,600 was sent to Mst. Saeeda Akhtar as rent for the period January, 1989 and February, 1989 but said lady returned the draft with a letter dated 25-3-1989 after keeping it for one month. Thereafter, the appellants started depositing the rent in Miscellaneous Rent Application No.345 of 1989. Throughout the written' statement, the appellants claimed relationship of landlord and tenant with Mst. Saeeda Akhtar and -not with the respondent.
5. During pendency of the Rent Application, the Rent Controller on an application moved under section 16(1) of the Ordinance, framed an issue as to, whether there existed relationship of landlord and tenant between the parties. After recording evidence, the Rent Controller under his order dated 5-12-1990 found the issue in the affirmative. Thereafter, under an order dated 15-1-1991 the Rent Controller directed the appellant to deposit in Court arrears of rent for the period from 1-1-1988 to 31-12-1990 at the rate of Rs.1,800 per month, amounting to Rs.64,800 within thirty days of the order dated 15-1-1991. The appellants were also directed to deposit future monthly rent at the rate of Rs.1,800 per month by 10th of each calendar month. The appellants were allowed the facility to withdraw the amount from MRC No.345/89 and deposit the same in the ejectment case. The appellants moved an application for extension of time for compliance of the order dated 15-1-1991 but the same was dismissed do 3-8-1991.
6. On 4-3-1991 the respondent moved an application under section 16(2) of the Ordinance for striking off defence of the appellants on the ground that they had not complied with the order dated 15-1- 1991 inasmuch as they had failed to deposit the arrears of rent and future monthly rent for January 1991 on due date. Said application was opposed by the appellants who filed objections. After hearing both sides, learned Rent Controller under the impugned order dated 3-8-1991 struck off defence of the appellants and directed them to hand over the vacant possession of the Flat in litigation to the respondent within sixty days from the date of the order. Hence, this appeal.
7. Mr. Muhammad Ibrahim Bajwa, learned counsel for the appellants conceded that the appellants were defecto tenants of the respondent and that rate of the rent was Rs.1,800 per month. Learned counsel for the appellants argued that appellants had complied with the rent deposit order dated 15-1-1991 and if there was any lapse on account of deposit of rent in the Miscellaneous Rent Case, the same was condonable and it did not empower the Rent Controller to strike off the defence. In support the learned counsel for the appellants cited the cases of (1) Muhammad Yameen v. State Life Insurance Corporation and another-1982 SCM R 546; (2) Najmuddin v. Mst. Anis Fatimah 1991 SCM R 64, (3) Malik Aman v. Khawaja Abdul Aziz (1991 SCM R 68), (4) Muhammad Siddique v. Abdul Karim and others 1983 CLC 913.
8. Mr. M.M. Mahmudi, learned counsel for the respondent argued that the appellants had committed default in compliance with the rent deposit order. Learned counsel posed a question as to, why cheque for Rs.45,000 was deposited in the rent case on 18-2-1991 when it was ready on 11-2-1991. It was further argued that rent for January, 1991 was to be deposited by 10th January, 1991 but it was deposited in the Miscellaneous Rent Case on 7-2-1991. Some other defaults were also pointed out.
9. In support learned counsel for the respondent cited the cases of (1) M/s. MA. Yahya v. M/s. Nawab Abdul Malik Estate 1982 SCM R 1160, (2) DrAbdullah Ghanghro v. Mst. Tahira Begum 1984 CLC 3102,
(3) Khawaja Ghulam Mustafa v. Mian Waqar Ahmed (PLD 1980 SC 9), (4) Noor Muhammad and another v. Mehdi (1986 CLC 90), (5) Kabiruddin A. Lalani and another v. War Ishaq Ansari (1987 CLC 1984).
10. It may be observed that the provisions contained in subsection (2) of section 16 of the Ordinance have been subject to interpretation in a good number of cases. Where a tenant deposited rent regularly but in Miscellaneous Rent Case he was found not guilty of disobedience of order passed under section 1G(1) of the Ordinance, in the case of A.S.K. Samad v. Abdul Hussain and another 1987 SCM R 1013. Somewhat similar view was taken in the case of Muhammad Yousaf v. Maqbool Ahmed 1985 _CLC 2862. In the case of Muhammad Yameen (1982 SCM R 546) cited on behalf of the appellants the deposit of rent was one day after due date and alleged failure was due to calamitous incessant rains disrupting ordinary human dealings and such plea for late deposit of rent, was not accepted by the Rent Controller but it was accepted by the High Court and in Civil Petition for Special Leave to Appeal the landlord failed to satisfy the Supreme Court as to the finding in favour of the tenant suffered from any infirmity and his petition was dismissed. In the case of Najmuddin 1991 SCM R 64 cited on behalf of the appellants, before the order of deposit of rent, the tenant had deposited a specified amount as rent in Miscellaneous Rent Case and it covered the amount ordered by the Rent Controller to be deposited and the tenant had been approaching the Rent Controller to tell the landlord to withdraw the rent from the Miscellaneous Rent Case or to permit withdrawal from Miscellaneous Rent Case for being deposited in the ejectment case but such request by the tenant was not acceded to and his defence was struck off.
11. Such order of the Rent Controller and order of the High Court maintaining such order, were set aside by the Supreme Court of Pakistan on the 'ground that the tenant cannot be said to have failed to comply with the order about the deposit of rent. In the case of Malik Aman 1991 SCM R 68 the tenant in Miscellaneous Rent Case had deposited an amount which was more than the tentative rent determined by the Rent Controller while passing Rent order, and every genuine effort was made by the tenant to get the amount paid through Miscellaneous Rent Case deposited in ejectment case but his efforts were frustrated and it was held that in such situation it could hardly be said that the tenant did not comply with the order of deposit of rent. In the case of Muhammad Siddique 1983 CLC 913 the order passed, by the Rent Controller striking off defence of the tenant was perfunctory and lacking judicious approach inasmuch as he did not apply his conscious mind to the contentions raised and plausible explanation offered by appellant/tenant and the view taken was that the Rent Controller had not exercised his jurisdiction on proper appreciation of law, and facts of the case and that the pleas raised by the tenant had not received fair treatment at hands of the Courts below.
12. Facts of these cases are distinguishable from the facts of the present case, where the appellants despite getting notice under section 18 of the Ordinance did not recognise the new owner viz. The respondent to be their landlord. After receiving notice dated 24-12-1988 mentioned in para. 1 of the written. Statement, the appellants were duty bound to pay the rent due to the new owner viz. Respondent Basit Ali. In spite of this the appellants insisted on A Mst. Saeeda Akhtar to be their landlady. Even in the Miscellaneous Rent Application the rent was deposited in the name of said lady. Consequently, deposit. Of rent in the name of Mst. Saeeda Akhtar cannot be termed as technical default, rather it is contumacious and deliberate. In such circumstances the Rent Controller was justified in striking off defence of the, appellants in view of the observations made in the case of Khawaja Ghulam Mustafa v. Mian Waqar Ahmed PLD 1980 SC 9 cited on behalf of the respondent. In the case of M/s. MA. Yahya 1982 SCM R 1160 no amount in Court was deposited in the ejectment proceedings while some deposits were made in some other rent case: Even in the other case the amount of rent deposited was not within the due dates and hence the defence was held to have been rightly struck off. In the case of Dr. Abdullah Ghanghro 1984 CLC 3102 the tenant deposited the rent in a Miscellaneous Rent Application despite order by Rent Controller to deposit rent in the main rent application and defence of the tenant was struck off and such order was maintained in appeal by a learned Single Judge of this Court. Similar view was taken in the cases of Noor Muhammad 1986 CLC 90 and Kabiruddin 1987 CLC 1984. Said view is in conflict with the view taken by the Supreme Court of Pakistan in cases of A.S.K.Samad 1987 SCM R 1013 and Dr. Abdullah Ghanghro 1988 SCM R 970.
13. In Abdullah Ghanghro and another v. Mst. Tahira Begum and another 1988 SCM R 970 the Supreme Court of Pakistan held that where the tenants were regularly depositing the rent in Court in a miscellaneous proceedings between the same parties, their failure to deposit rent in the specific case numbers in which the rent orders under section 16(1) of the Ordinance were passed, was a mere irregularity. While taking such view the Supreme Court of Pakistan set aside order of the Rent Controller rejecting plea of the tenants and Order (1984 CLC 3102) of the High Court upholding view of the Rent Controller.
14. As per the Rent Deposit Order dated 15-1-1991, the appellants were to deposit Rs.64,800 by 14-2- 1991. As against this the appellants deposited cash of Rs.21,600 on 14-2-1991 but remaining amount of Rs.45,000 was deposited through a cheque on 18-2-1991. The appellants in their objections to the application moved under section 16(2) of the Ordinance gave explanation for late deposit of Rs.45,000. According to them the application of withdrawal of rent from Miscellaneous Rent Application No.345/89 was moved on 28-1-1991 but the cheque was delivered to them on 13-12- 1991. That the cheque was deposited by the appellants in their account with their bankers for collection on 13-2-1991 but it was stamped on 14-2-1991 and sent for collection on 16-2-1991 (15-2- 1991 being weekly holiday). Amount of cheque was said to have been collected on 18-2-1991 and then deposited in the main case the same day. The respondent in his reply to the objections averred that the cheque for Rs.45,000 being the amount intended to be withdrawn from the Miscellaneous Rent Case and deposited in the main case, was drawn on 7-2-1991 and was signed on 11-2-1991 and yet it was deposited in the main rent case on 18-2-1991 viz. After for days of the due date..
15. For late deposit of monthly rent for January, 1991 the explanation furnished by the appellants was, that new Ledger number was not allotted .To them before 14-2-1991 and hence rent for January, 1991 was deposited on 7-2-1991 in the Miscellaneous Rent Case No.345/89. In terms of the rent deposit order dated 15-1-1991 the rent for January, 1991 could be deposited by 10th January, 1991 or on 15-1-1991. There is no- proper explanation for deposit of rent for January, 1991 on 7-2-1991. In the circumstances, the Rent Controller was justified in striking off defence of the appellants.
16. For the foregoing reasons, this appeal stands dismissed with no order as to costs and the appellants are given a period of two months to vacate the premises in litigation.
17. Such short order was passed on 2-6-1994 and these are the reasons for the same.