This appeal has been filed against the order of learned IVth Controller, Karachi rejecting rent application of the appellant for ejectment of respondent on the ground of default in payment of rent.
2. The opponents filed their written reply stating. Therein that opponent, before him his father Ahmed Hasan Qureshi used to pay rent regularly. On refusal of money order in respect of rent by father of the applicant, opponent filed Miscellaneous Rent Application No. 6945 of 1980 in the Court of IVth Senior Civil Judge and Rent Controller, Karachi and he and before him his father used to deposit rent regularly and have committed no default.
3. On behalf of the appellant affidavit in evidence of appellant's attorney Iftikharuddin was filed who produced photo copies of some rental receipts.
4. From the side of the opponent affidavit-in-evidence of the opponent was filed. Photo copy of death certificate of father, original money order receipts and photo copy of Rent Application 6945 of 1980 have been filed.
5. On the pleadings of the parties the learned Rent Controller framed the following issues:---
(1) Whether opponent has become statutory tenant after death of his father?
(2) Whether opponent had committed default in payment of rent?
(3) What should the decree be?
6. According to the findings of the learned Rent Controller opponent had become statutory tenant after the death of his father Ahmed Hasan Qureshi on 15-9-1982, and that he has not committed default, as such, the application was rejected.
7. The learned counsel for the appellant's has argued that applicant's father committed default when the rent of April, 1980 was not paid, and that no rent has been paid to the appellant till today.
He further argues that money order purported to be sent to the applicants on 8-10-1990 for a sum of Rs. 750 was in respect of rent of previous five months which is itself an admission of the default.
That even the money order has been sent in the name of Amtul Rehman not in the name of Amtul Haseeb the present applicant. He has also argued that the Miscellaneous Rent Application No. 6945 of 1980 has not been filed against the present appellant but against one Amtul Rehman. The money order as well as Miscellaneous Rent Application would clearly show that the rent is not tendered to the appellant but to one Amtul Rehman who is stranger to appellant. He further argues that respondent in his cross-examination had admitted that his landlady is Ismat Habib which shows that he had knowledge of the correct name of the appellant. He argues that as such opponent has committed default to the rent from April, 1980 till today as rent has not been paid. He has placed his reliance on 1984 MLD 793 (Rafiuddin v. Additional District Judge etc.).
8. Learned Advocate for the respondent argues that the rent of five months have been sent to the appellant on 8-10-1980. The money order was not refused due to the wrong name, but was refused as appellant had by that time filed rent case against the opponent. He further argues that in respect of default a rent case was filed but was dismissed in default, which is clear from deposition of Iftikharuddin in cross-examination. As such, he argues that default from April, 1980 to the date of the money order cannot be agitated now, as rent application was filed in the Court, but was dismissed in default.
He further argues that opponent before him his father has been regularly depositing the rent in Miscellaneous Rent Case No. 6945 of 1980. In that rent only one default of 13 days in respect of rent of January, 1981 has been committed. He further argues that these both defaults were-committed during the time when his father was alive. Respondent has become statutory tenant after his death on 15-2-1982, as such, he is not liable for those default even if any committed by his father. Reliance is placed on PLD 1985 Kar. 633.
9. Learned Advocate further argues that though the Rent Application No. 6945 of 1980 in the name of Amtul Rehman was filed, but applicant's attorney in his cross-examination has admitted that he has the knowledge that opponents were depositing rent in the Court. As such, there is no default.
9. For default in payment of rent for first five months for which a money order dated 8-10-1980 for Rs. 750 was sent but was refused on the grounds that ejectment application was pending in the Court. It is also admitted that earlier case was dismissed for default. This case must have been filed on or before 8-10-1990, as such, the default if any would have been the subject-matter of that application. As the application was dismissed in default and no further proceedings initiated except this ejectment application which was filed in 1987, default if any of those five months cannot be a ground for ejectment and that default if any was also committed by the father and the present respondent and the applicant has become statutory tenant after his death in the year 1982.
10. The respondent before his father has been depositing rent in M.R.C. No-6945 of 1980 (Ahmed ul Hussain Qureshi v. Amtul Rehman) pending in the Court of Vth Senior Civil Judge, Karachi South.
The name of the landlady of the said premises is Amtul Haseeb whereas Miscellaneous Rent Application in which rent is deposited is in the name of Amtul Rehman which is clear that the rent is not deposited in the name of the appellant but to some other person.
11. It is to be seen whether deposit of rent in the wrong name is by over--sight or deliberate act on the part of the respondent. Respondent in his cross---examination has clearly admitted that name of the landlady is Amtul Haseeb. These are words in cross-examination: "it is incorrect to suggest that I am not depositing rent in the name of Amtul Haseeb"; "to the best of my knowledge Amtul Haseeb is landlady in Miscellaneous Rent Case"; "the name of my landlady is Amtul Haseeb;" "it is correct to suggest that landlady is Amtul Haseeb". This clearly shows that opponent has the knowledge about the correct name of the appellant/landlady and according to him he is depositing the rent in the name of Amtul Haseeb. Admittedly one rent application was filed by the applicant in 1980, which was dismissed in default. Apparently after this application the respondent or his father would have come to know the correct name of the landlady but still he did not take any step to correct the name of the landlady in the rent miscellaneous application. As the respondent claims tenancy through his father, he is liable for all the acts and omissions committed by his father. Even otherwise, the death of his father in 1982, the respondent had more than enough time to rectify the error if any. The failure of the respondent to correct the name of the landlady clearly shows that he wanted to deprive her of the rent. As such, there is wilful default of the payment of rent on the part of the respondent.
12. In PLD 1993 Lah. 101 (Muhammad Yousuf v. Naimuddin Malik) it was held that where the tenants were aware of the fact that the ownership of the shop in question had changed hands and despite notice to that effect they continued depositing the rent in the name of previous landlord as such deposit would not be considered valid tender or payment of rent and therefore tenants had committed default in payment of rent which they had been rightly ordered to be entitled.
13. It .Has been held in Rafiuddin v. Additional District Judge reported in 1986 MLD 793 that deposit of rent not in the name of the landlord, but in the name of predecessor-in-interest is not proper.
Eviction ordered though deposit is in the name of predecessor-in-interest.
14. The learned Rent Controller has not discussed aspect of the case whether deposit in the name of Amtul Rehman is to be regarded as the deposit in the name of Amtul Haseeb. This is an omission on his part. He should have discussed it and given his finding on that point also.
15. In view of the above discussion I am of the view that respondent has committed default. The appeal is, therefore, allowed and the impugned order is set aside. The respondent should hand over vacant possession of the said shop within sixty days.