1. ' Appellant M/s. Bamboat & Co. Filed this appeal under section 21 of Sindh Rented Premises Ordinance (hereafter mentioned as the Ordinance) against an order, dated 28-5-1988 passed by 1st Senior Civil Judge and Rent Controller, Karachi South in Rent Case No,1659 of 1987.
2. ' Admittedly the appellants are in possession of the premises in litigation viz. Tenement No,60 of the property bearing Survey No,11/2 Survey Sheet No,RC/B, Ranchore Road, Karachi.
3. ' Rent Case No,1659/87 was filed by the respondents G.B. Construction Company for eviction of the appellants from the premises in litigation on the ground that the appellants had failed and neglected to pay monthly rent since 4-9-1984. Respondents claimed to have sent notice dated 4- 9-1984 to the appellants under section 18 of the Ordinance and yet the rent was not paid.
4. ' The rent application was contested by the appellants who in their written statement took stand that they were occupying the premises in litigation since 1948 as tenant of Ahmed Moise Builder.
5. They added that they were paying the rent regularly till M/s. Ahmed Moise Builders refused' to receive the rent and subsequently the rent was being deposited in Misc. Rent Case No,4064/83. The appellants admitted receipt of notice dated 4-9-1984 but contended that the respondents did not provide them with any proof about having purchased the premises in litigation. They also alleged that the notice dated 4-9-1984 contained forged signature. The appellants claimed to have replied the said notice under letter, dated 11-12-1986 and 8-1-1987. In support of their case, the respondents filed affidavit-in-evidence of Abdul Samad. The appellants filed affidavit-in-evidence of Abdul Aziz.
6. After recording evidence of the parties, learned Rent Controller under the impugned order, dated 28-5-1988 accepted the application and ordered eviction of the appellants from the premises in litigation. Hence this appeal.
7. ' Mr. Maqsood Hassan Rizvi, learned counsel for the appellants argued that the rent application was filed not by the landlord but by his attorney and that it was not properly verified and that the trial Court had not considered maintainability of the rent case. It was further argued that the rent case was filed on 16-11-1987 although the default was alleged since 4-9-1984. Learned counsel for the appellant was of the view that the default has not been established, because the appellants had been depositing the rent in Miscellaneous Rent Case No,4064/83 and there was no conscious nonpayment of rent. In support learned counsel cited the case of Mashaikuddin v. Ali Haider 1989 M LD 539.
8. ' The respondents had notice of this case and they had nominated Ch. Muhammad Iqbal as their counsel. They also appointed Mrs. Fozia Noorani as their Advocate. However, none appeared to represent the respondents on the date of hearing.
9. ' It is an admitted fact that the appellants were duly served with notice under section 18 of the Ordinance. This has not been denied in the written statement. Respondents examined A. Samad as their witness. He produced copy of General Power of Attorney by which he is appointed as attorney by the respondent's firm. However, power of attorney appears to have been signed by the partner of the respondents. This does not invalidate appointment of Abdul Samad as attorney. The rent application has been signed by Abdul Samad and after being armed with power of attorney he was competent to sign the rent application. Rent application is not verified but on that ground it cannot be discarded because the provisions contained in Civil Procedure Code do not strictly apply to the rent proceedings.
10. ' A copy of the notice under section 18 of the Ordinance has been produced. It shows that the entire building including premises in litigation were purchased by the respondent's firm, from Ahmed House Builders Company Housing Society Ltd. Through a sale-deed registered with District Registrar, Karachi. In the circumstances it was incumbent upon the appellants to commence paying rent to the respondents within 30 days from the date of receiving the notice, as provided under section 18 of the Ordinance.
11. ' However, case of the appellants is that they have been depositing the rent in a miscellaneous rent case. A tenant can deposit rent of the premises only when the landlord had refused or avoided to accept rent as per subsection (3) of section 10 of the Ordinance. Before depositing the rent with the Rent Controller of the area the tenant should have sent the rent to the respondents by postal Money Order after tendering the same personally to the respondents. This was not done. In the circumstances the ground of default in terms of clause (ii) below subsection (2) of section 15 of the Ordinance was made out. In the case of Mashaiktrddin 1989 M LD 539 following view was taken:--- "Principle that emerges from the several decisions is that default to be regarded as deliberate default, the conduct of the tenant should be such as to lead to the inference that his omission was a conscious violation of his obligation to pay the rent or reckless indifference. If the default was due to accident or inadvertence or erroneous of false sense of security based upon the conduct of the landlord himself, the default cannot be said to be wilful default."
12. ' There can be no cavil with the above view. In the instant case the default appears to be deliberate as even after receiving notice under section 18 of the Ordinance, the appellants have not taken any effort to pay the monthly rent to the respondents.
13. ' The appellants examined Abdul Aziz, who claimed to be manager of the appellant's firm. He stated in his affidavit that the appellants were old occupants of the premises in litigation as tenants of M/s. Ahmed House Builders Cooperative Housing Society since 1948, but due to some dispute the rent was being deposited in Miscellaneous Rent Case No,4064/83 and the same was deposited up to 31-12-1986. Abdul Aziz further stated that notice under section 18 of the Ordinance received by the appellants created doubt and confusion because it was signed by Mr. Bawani for the purchaser and seller and that the rent was deposited in Court up to 31-12-1984. In his cross- examination Abdul Aziz denied receipt of notice dated 4-9-1984 although the same was admitted to have been received as per the written statement. Abdul Aziz admitted having signed reply to notice Exh.O/1, sent by the appellants. The appellants could not have sent reply to the notice if they had not received the notice. In this way the appellants have taken self-contradictory stand. Abdul Aziz stated in cross-examination that rent was sent by the appellants to the respondents by. Money Order which was refused. No such evidence has been brought on record and no such claim has been made in the written statement, where it is said that rent was being continuously deposited in Court. This shows that in spite of receiving notice under section 18 of the Ordinance, the appellants failed to pay rent to the respondents personally or through the Money Order. Mere deposit of rent in a rent case by itself, would not amount to compliance with clause (ii) below subsection (2) of section 15 of the Ordinance.
14. ' Subsection (3) of section 10 of the Ordinance says that where the landlord has refused or avoided to accept the rent, it may be sent to him by postal Money Order, or be deposited with the Controller within whose jurisdiction the premises is situated. In the present case no effort was made by the appellants to pay rent to the respondents personally or by Postal Money Order. In the circumstances, the appellants/tenants were not entitled to deposit the rent in Court and their act of depositing the rent in Court without complying with subsection (3) of section 10 of the Ordinance, would not save them from being visited with the penal provisions contained in clause (ii) of subsection (2) of section 15 of the Ordinance.
15. ' For the foregoing reasons, I dismiss this appeal with no order as to costs. The appellants are required to vacate the premises in litigation within a period of three months and surrender the same to the respondents.