1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter referred as the Ordinance) is directed against an order dated 13-12-1993 passed by learned Controller, Karachi- South allowing Rent Case No,1274 of 1991 and directing appellant's eviction.
2. ' Appellant is' the tenant on monthly rental of Rs,125 in respect of Room No,8 in Mehran Manzil, Zakaria,, Lane, Jodia Bazar, Karachi since before the acquisitioning of property by the respondent Trust.
3. ' Respondent sought ejectment of the appellant from the demised premises on the ground of default in payment of rent with effect from July, 1985 till the filing of eviction application in August, 1991. Since the appellant was the tenant of the previous landlady, from whom the property in question was purchased by All Muhammad Rashid by virtue of a sale-deed with effect from 28-7- 1985, he was served with statutory notice dated 8-8-1985 under section 18 of the Ordinance calling upon him to pay rent of the premises with effect from July, 1985 to the new purchaser. Appellant, however, did not respond to this notice where after he was served with another legal notice dated 15-8-1987 followed by a third notice dated 22-9-1990 under section 18 of the Ordinance on behalf of respondent Trust calling upon him to pay rent with effect from July, 1985. While in the legal notice dated 15-8-1987 respondent demanded rent at the rate of Rs,125 in addition to Rs,25 per month as water and conservancy charges with effect from the month of July, 1985 without disclosing the date of creation of Trust or purchase of property from Ali Muhammad Rashid, in the third notice dated 22-9-1990 respondent demanded rent with effect from July, 1985 at the rate of Rs,156 per month from. July, 1985 to June, 1988 and Rs,172 per month from July 1988 up to date. Appellant did not respond to the notice dated 15-8-1987 but he sent a reply to the third notice through his Advocate on 30-9-1990 denying that the rate of rent was Rs,156 per month with effect from July, 1985 to June, 1988 or that it was raised to Rs,172 per month with effect from July, 1988. He urged that from the receipts signed by respondent it would appear that the rate of rent was Rs,125 per month.
4. He denied default in payment of rent and claimed that rent had been deposited up to date in Miscellaneous Rent Case No,882 of 1985 in the office of IIIrd Senior. Civil Judge and Rent Controller, Karachi-South. In the eviction application, however, respondent Trust contended that Rs,125 per month had never been agreed rate of rent between the parties and no rent receipt had been issued to the appellant as asserted by him in his reply dated 30-9-1990. Respondent asserted that on enquiry it was revealed that the appellant had been depositing rent in the office of the Controller at the rate of Rs,125 per month since July, 1985 though he was liable to pay water and conservancy charges at the rate of Rs,25 per month which forms part of the agreed rent. It was further claimed that under section 10(1) of the Ordinance, rent being payable not later than 10th of each month it was statutory obligation of the appellant to deposit rent in Court on or before the 10th of each following month. He has committed numerous defaults while depositing rent in Miscellaneous Rent Case.
5. ' Appellant contested eviction proceedings and in the written statement he admitted relationship of landlord and tenant but disputed his liability to pay water and conservancy charges at the rate of Rs,25 per month as according to him rent of Rs,125 per month was inclusive of water and conservancy charges. He pleaded that after the receipt of intimation regarding change of ownership vide notice dated 8-8-1985, he tried his level best to pay monthly rent at usual rate but the respondent avoided to receive the same on one or the other pretext and refused to accept the rent sent through money order, therefore, he had no alternative except to deposit the same in the Court at the rate of Rs,125 per month.
6. ' In support of its case, respondent Trust examined Managing Trustee Abdul Razzaque and one of the trustees Riaz Hussain while the appellant appeared as his own witness.
7. ' In the first round of litigation, defence of the appellant was struck off vide order dated 24-1-1993 for non-compliance with the order relating to deposit of rent which was impugned in F.R.A. No,84 of 1993. This F.R.A. Was allowed by consent of parties on 8-8-1993 and the case was remanded to the Controller for a decision on merits.
8. ' On the above averments of the parties and after hearing their counsel, learned Controller settled the sole point relating to default in payment of rent and decided it against the appellant directing his eviction which has been impugned in this appeal.
9. ' From a narrative of this judgment, it would appear that appellant was the tenant in the demised premises under the previous landlady Mrs. Safia Rashid wife of Hakim Abdul Rashid from whom the property in question was purchased by Ali Muhammad Rashid who became its owner with effect from 28-7-1985 and who serves statutory notice on the appellant on 15-8-1985. It is the case of the appellant that after receipt of the first notice he tried his level best to pay rent to Ali Muhammad Rashid transferee of the premises but the latter avoided to receive the same on one pretext or the other and even refused to accept the rent sent through money order and as such he had no alternative but to deposit the same in Court at the rate of Rs,125 per month. In support of his averment that he was tenant prior to the purchase of property by the respondent he produced a rent receipt dated 1-6-1985 Exh.O/1 in proof of payment of rent for April, May and Jane, 1985 amounting to Rs,375 which was not disputed. He also produced Money Order Coupen dated 8-9- 1985 Exh.O/2 to substantiate his version that he had remitted rent amounting to Rs,375 from July to September, 1985 in the name of Ali Muhammad Rashid which was refused. Thereafter he started depositing rent in Miscellaneous Rent Case with effect from 29-9-1985, depositing rent after every three months, last two deposits made on 30-1-1991 and 15-8-1991 by way of rent for a period of six months at a time. During his cross-examination appellant admitted that some times in October and November, 1985 he had come to know that property in question was a trust property, but he clarified that Ali Muhammad Rashid had purchased this property and sent notice demanding rent from him. He asserted that he used to pay rent to Ali Muhammad Rashid as owner of the property.
10. He frankly admitted the receipt of notice dated 15-8-1987 but on being questioned whether after receiving notice dated 15-8-1987 he had tendered rent or deposited the same in the name of Trust he replied that he was paying rent regularly. During his cross-examination he further stated that he had gone to pay rent to Riaz and his father Rashid when he was informed that they had purchased the building in 1985. According to appellant it was perhaps the month of August/September, 1985 when they asked him to enhance the rent which he refused to agree where after they replied that the receipts were under print and refused to receive rent. Thereafter he sent rent by money order. It is pertinent to note the consistent version of the appellant that he tried his level best to pay rent at usual rate to the respondent who avoided to receive the same on one, pretext or the other and that Ali Muhammad Rashid retused to accept the rent through money order and as such he had no alternative except to deposit the same in Court, was not at all controverted in the cross- examination.
11. ' Learned counsel for appellant with reference to first notice dated 8-8-1985 rightly contended that the appellant had made all efforts to pay rent to Ali Muhammad Rashid who had purchased the property but the latter avoided to accept the rent and finally refused to accept the rent remitted through money order. He further urged that in the circumstances, appellant was left with no option but to deposit rent in the office of the Rent Controller and that there was no default in payment of rent on his part.
12. ' As observed earlier, there is sufficient reliable evidence, in support of the above contention raised on behalf of appellant but learned counsel for respondent vehemently contended that after the receipt of second and third notice sent on behalf of respondent Trust, appellant was under a legal duty to pay rent to the Trust but he did not care to respond to the demand of respondent Trust for payment of rent. It was pointed out to the learned counsel that the appellant had promptly responded to the first notice sent on behalf of Ali Muhammad Rashid by offering the rent in person and after avoidance to accept the same sent rent by money order which having been refused, he had been depositing rent in the office of the Controller regularly and that there was no default in strict sense of the term but learned counsel insisted that the appellant having failed to deposit rent in the name of Trust had committed, deliberate and wilful default which could not be condoned by the Controller or by this Court as appellate authority under the Ordinance. After a close scrutiny of the evidence and material placed on record I find no substance in the point urged by the learned counsel for respondent that there was a default. For the first time notice was sent on behalf of Ali Muhammad Rashid demanding rent without mentioning any amount with effect from July, 1985 claiming ownership with effect from 28-7-1985. In my view, new purchaser having acquired ownership of the building with effect from 28-7-1985 could not legally maintain his claim for recovery of rent for the month of July, 1985 in the absence of any evidence to show that previous owner had authorised him to do so. Secondly offer of rent to said landlord followed by remittance of rent by money order and on his refusal to accept the same, deposit in the office of the Controller would show that appellant was all 'along anxious and willing to discharge his statutory duty. In these circumstances, appellant could not be termed as defaulter within the meaning of the term. It is interesting to note that in the second notice dated 15-8-1987 respondent trust claimed acquisition of the building by Ali Muhammad Rashid from Safia Rashid wife of Hakim Abdul Rashid with effect from 8-7-1985 but said Ali Muhammad Rashid himself had actually acquired ownership with effect from 28-7-1985. The two dates mentioned in these notices are self-contradictory and cannot be reconciled with each other. Besides, in this notice apart from rent at the rate of Rs,125 per month water and conservancy charges amounting to Rs,25 per month were demanded without enclosing any bill received from Karachi Water and Sewerage Board. In the absence of a bill to this effect appellant could not be legally saddled with a liability to pay rent at the rate demanded in the notice without any evidence that he used to pay this amount to previous landlady. In the third notice dated 22-9-1990 sent on behalf of respondent Trust, appellant was called upon to pay rent at the rate of Rs,156 per month from July, 1985 to June, 1988 and at the rate of Rs,172 per month with effect from July, 1988 without any legal basis or justification. In the absence of any agreement as to rate of rent or any order fixing fair rent of the premises by the Controller respondent could not arbitrarily claim rent at the rate of Rs,150 in 1987 and raise it to Rs,156 per month with retrospective effect and at the rate of Rs,172 with effect from July, 1988.
13. Respondent's witness Abdul Razzaque in his evidence admitted that in 1985 notice was given by Ali Muhammad Rashid and that appellant was depositing rent in Court according to said notice. He also admitted that Ali Muhammad Rashid is one of the trustees. I am therefore, of the considered view that by continuing to deposit rent in the name of said All Muhammad Rashid after whose name the Trust is said to have been created, appellant did not commit any wilful default within the ambit of the term. His bona fides can be gathered from his reply to last notice sent on behalf of Trust in which he categorically asserted that rent had been deposited up to date in Miscellaneous Rent Case and that the respondent was at liberty to withdraw the same.
14. ' In a somewhat identical case where a tenant was crediting amount of rent in the name of a Director of Company that owned rented premises and after passing of tentative rent order for payment of arrears of rent and current rent, tenant started depositing current monthly rent in Court it was held by a learned Judge of this Court in Jamaluddin Qureshi v. Messrs Fassmaz Limited 1994 M LD 426 that although credit of rent in personal account of Director of Company that owned premises in dispute would not legally amount to tender of rent to landlord, but in certain suitable cases depending an facts of each case Rent Controller could exercise his discretion by condoning such lapse on the part of tenant.
15. ' In support of his submission that respondent Trust was a separate entity from Ali Muhammad Rashid, learned counsel for respondent has relied upon cases of Manek J. Mobed and another v.
16. Shah Behram and others PLD 1974 SC 351 and S.M. Younus and 2 others v. Messrs Premier Mercantile Service, Karachi and-another 1981 CLC 1380. In the first case Horeble Supreme Court held that: "If a person obtains leasehold rights in his own name and subsequently assigns them to a firm or to a private limited company consisting of his family members it cannot be said that no change has taken place in the status of the tenant or that it is not a case of subletting or assignment of leasehold rights."
17. ' Second case cited by the learned counsel was taken to Supreme Court of Pakistan in appeal ;and in the Supreme Court judgment in the case of Premier Mercantile Service and another v. S.M.
18. Younus and others PLD 1982 SC 79 it was held that where a registered partnership firm was dissolved and converted into a private limited company and got registered under Companies Act without informing or getting permission from landlords, a distinct legal entity different from firm came into existence and it remained so whether veil of incorporation was lifted or not. It was further held that such legal entity possessed altogether different rights and subjected to different liabilities with respect to third parties including landlords. Honourable Supreme Court held that such change could not be brought about unilaterally so as to transform very legal existence of partnership firm in a manner affecting their liability.
19. ' There is no cavil with the proposition of law laid down, in the above cases but in the distinct circumstances of the present case these are hardly of any assistance to the respondent.
20. ' Reliance was also placed on the cases of Mala and 7 others v. Jahangir and 3 others 1982 SCM R 239 and Mst. Bilqees Begum and 7 others v. Habib Bakhsh 1988 MLD 2539, in support of the submission that deposit of rent in the name of Ali Muhammad Rashid would not amount to deposit in the name of respondent Trust. In the first case Hon'ble Supreme Court observed as under: "Eviction---Petitioner's predecessor-in-interest entering property as tenant when only allotee's rights conferred on person inducting him as tenant---Transfer of rights in property claimed by respondent and a formal notice served on transferee---Petitioner if entertaining doubt regarding claim of two allottees, held, could have ascertained it from authorities sanctioning transfer or made deposit before Rent Controller with his own reservations but could not in good faith deposit in name of landlord about whom he stood formally informed to have ceased to have interest-in- property---Conduct of tenant being contumacious, Rent Controller, held further, rightly ordered his eviction on ground of default in payment of rent."
21. ' In the second case Saiduzzaman Siddiqui, J 9s his Lordship then was) held that deposit of rent by tenant in the name of previous owner in suits of service of notice was not a valid deposit so as to relieve him of consequences of deposit as he was under obligation to deposit rent in the name of new landlord from the date of receipt of notice.
22. While ownership in both the cases had changed hands and there were different individuals entitled to receive rent, in the present case as observed earlier, the Trust consisted of previous owner Ali Muhammad Rashid as well as other family members and the appellant acting in good faith continued to deposit rent bona fide in the name of Ali Muhammad Rashid. Consequently no ulterior motive or contumacious default can be attributed to him as appellant had neither withheld the rent nor caused any prejudice to the respondent by continuous deposit of rent in the name of Ali Muhammad Rashid. Both the cases are thus clearly distinguishable and of no help to the respondent.
23. ' Since I have held above that there was no wilful default on the part of the appellant in the deposit of rent reliance on the case of Arshad Muhammad Siddiqui v. Muhammad Haroon 1992 MU) 810 is misconceived and uncalled for. In this case the view taken was that after the purchase of the property, purchaser by virtue of section 8 of the Transfer of Property. Act, succeeded to the rights which had already accrued to the previous owner including the ground of default, if already committed.
24. ' On his part, learned counsel for respondent referred to para.8 of the ejectment application and para.11 of affidavit-in-evidence filed by respondent's Managing Trustee Abdul Razzaque to the effect that appellant had committed a number of defaults in deposit of rent in Miscellaneous Rent Case in terms of section 10(1) of the Ordinance. Learned counsel pointed out that the respondent had relied upon Nazir's report indicating deposit of rent for three months at a time in support of its plea of default on the part of appellant but in my view this would not amount to default in payment of rent since monthly rent falls due, after expiry of the month and a default would accrue only if rent is not paid within 60 day of the rent falling due. There is considerable force in the submission advanced on behalf of appellant which is fully supported by clause (ii) of subsection (2) of section 15 of the Ordinance because there was no agreement fixing a date for payment of rent between the parties. I am of the view that in the absence of any agreement between the parties deposit of rent after every quarter would not entail penal consequences as by reason of sections 10 and 15 of the Ordinance a period of 70 days is permissible to a tenant for deposit of monthly rent from the date it falls due. I may refer to cases of Shezan Limited v. Abdul Ghaffar and others 1992 SCM R 2400 and Sir E.H. Jaffer and Sons Ltd. v. Sultan Karam Ali and others 1995 SCM R 330 in this connection.
25. ' Learned counsel for appellant referred to the case of Abdul Ghafoor v. Fateh Sher reported in 1995 CLC 172, in support of his contention that the respondent had been changing stand from time to time in order to find fault with the conduct of the appellant who had been acting consistently and diligently in order to discharge his obligations under the law. By withdrawing the rent deposited in M.R.C. Respondent had waived his objection if at all any, the counsel added. In the reported case which arose out of a suit for preemption it was held by a learned Judge of the Lahore High Court that where respondent acknowledged title of appellant in the suit land and obtained its lease from him under a duly executed lease deed, he could not be allowed to take contradictory stand and principle of approbation and reprobation would apply with full force. In the R & Ps. Of M.R.C. I have noted that the said Ali Muhammad Rashid has withdrawn entire rent deposited up to date claiming ownership of the premises vide his application dated 9-5-1993 which fully supports my view.
26. ' No other point has been urged for or against the impugned order, which in view of above discussion, cannot be sustained at law as it proceedes on wrong assumption of facts and law. I, therefore, set aside the same and allow this appeal leaving the parties to bear their own costs.