(1) This application for withdrawal of rent from the side of the respondents is allowed by consent.
(2) I have heard the learned counsel. The facts are elaborately detailed in the order of the learned Controller and need not be restated.
1. ' The basic question, which emerged in the rent case, was whether or not deposit of rent by the tenant bank in M.R.C. 4875/1983 on 10-114983 and continued deposits thereafter constituted due payments to the . Legal representatives of the landlord, since deceased. The miscellaneous rent case itself was filed against Rehmatullah deceased through legal representatives and not directly in the names of the successors. It was an admitted fact that when the first referred deposit was made, that was made only for the period May, 1982 to October, 1983, and thus no deposit whatever, at a time, for the month of April 1982 was made. Such default has remained unexplained. As to the delayed and cumulative deposit for the period of 18 months from May 1982 to October, 1983, the tenant's explanation was that such had occurred due to a suggestion by the legal heirs themselves that payments of accruing dues be not made to them till such time as heirship documents and other formalities had been commenced and concluded. I have re-examined the evidence on the point and find that the first letter on the subject (Exh. 0/2) was written on 20-6-1982 by respondent Naseem Ahmed Butt, but that document merely made a mention of the requisite formalities of heirship certificate etc. Being taken in hand and the suggestion only was that already standing deposits in the name of the deceased predecessor (Rehmatullah Butt) may be kept in tact. Per- letter dated 24-10-1982 (Exh. 0/3), Mst. Zohra Begum, widow of the deceased, in fact, made a request for payment of advance rent for the purposes of completion of certain works. These documents, therefore, clearly negate the bank's defence that there ever was a suggestion for withholding accruing rents. The matter is clinched by the legal notice dated 14-2-1985 (Exh. A/2) on behalf of the representatives, making a clear assertion that the bank had defaulted in payment and its reply dated 9-3-1985 (Exh. A/3), registering a refusal on the bank's part to make payments till such time as succession documents were obtained.
2. It is well settled that under Muslim Law legal representatives of a deceased person come to inherit the estate as soon as the succession opens and no formality, legal or otherwise, is needed to confer title on the heirs to the extent of their shares of inheritance in the property of the deceased predecessor. In the absence of an express directive to the tenant-bank by the legal heirs to refrain from discharging its obligation of payment of rents, it could not be found that the rents were withheld in a lawful manner or that correspondingly no default was committed.
3. ' Mr. Muhammad Zubair Qureshi, Advocate for the appellant, has argued the case from certain other angles also, which require to be mentioned. He has urged that when the rent case was filed, on 4-4-1990, the appellant-bank was regularly making deposits in the referred M.R.C. And that the default, if any, pertained to a period, clearly going beyond the limitation threshold i,e, three years preceding the institution. Relying on Muhammad Ahmed v. Mrs. Qamar Anwar Shaikh, 1980 CLC 664, which, in turn, has proceeded on Ashfaq-ur-Rehman v. Muhammad Afzal, PLD 1968 SC 230, he has urged that the arrears of rent due for a period beyond three years preceding the institution of an eviction case did not constitute rent due and cannot be a valid basis for an application to evict.
4. It is doubtful that Zafar Hussain Mirza, J. In the case of Muhammad Ahmed has spelled out any such wide proposition. It appears from the context that the learned Judge could be limiting his observation to the principle laid down in the case of Ashfaq-urRehman, to which he had occasion to make mention and that case had proceeded only to the extent that recoveries or deposits of arrears for any period preceding three years of the date of institution of a rent case or suit could not be ordered. It thus transpired that the case of Muhammad Ahmed was decided on the ground of waiver rather than on limitation.
5. ' Now, it is obviously a different matter altogether when an eviction application is based on time- barred arrears. As seen, deposit of such arrears may not be ordered. But a default in payment of rent is a default whether it is in relation to time-barred or timely arrears and the law has made no distinction in it. The only conceivable exception would be a case where the landlord, has either acquiesced in the default or has condoned it, thereby giving rise to waiver, but then that also would be equally effective in relation to the arrears sued for within time. The decision of the Supreme Court in Pervaiz Akhtar v. Additional District Judge, Rawalpindi, PLD 1990 SC 681, may, with advantage, be referred on the point. Default and actionable default at that is thus a proved fact.
6. Deposits in the name of the deceased landlord and not in those of the successors, ever since, has compounded it.
7. ' Another leg of argument of Mr. Muhammad Zubair Qureshi, Advocate for the appellant, is that no power of attorney was filed alongwith the eviction application. The power of attorney which was subsequently filed was dated 26-11-1987 when the attorney in his deposition spoke of a power given to him in 1990. The power itself, according to counsel, did not carry specific authority to file an eviction case. Further, the power of attorney did not include one of the legal representatives as a signatory. On such factual premises, it has been claimed that the eviction case was incompetent and, therefore, no relief could be allowed in it. I do not wish to go into any of the details of this technical controversy. All that I would say is that even if it was found that the eviction application was not filed in the proper capacity of an attorney, fact would still remain that the person, who filed the application, was himself one of the legal representatives of the original landlord and, being co- owner of the property, was competent to file such application in his own right. That cannot be denied either as a fact or as a matter of law. This objection, therefore, also does not survive.
8. In view of the foregoing, the appeal is dismissed and the finding of the Controller is upheld.
9. However, because banking business is being transacted at B the tenant-hold, one year's time, as proposed by Mr. Muhammad Zubair Qureshi, and agreed to by Mr. Shaikh Muhammad Usman, is allowed: Provided always that during such period the appellant-bank would continue to deposit the rent as before. On the expiry of the period allowed or upon default of accruing payments, whichever be earlier, the respondents would be free to apply for eviction and in that event writ of possession would be issued without notice simultaneously with Police aid and other concomitants.