' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) is directed against the judgment dated 2-2-1993 passed by learned Controller Karachi-Central directing ejectment of the appellants on the ground of default in payment of rent.
2. By agreement of tenancy dated 24-7-1974 between the respondent and appellants' predecessor-in-interest Syed Nooruddin, house bearing No:1-C-2-3 Nazimabad, Karachi was rented out to him on a monthly rental of Rs,450 commencing from 1st August, 1974 for a period of 11 months. According to the tenancy agreement a sum of Rs,2,250 was paid to the respondent as advance and fixed deposit which was duly acknowledged. In addition to the payment of monthly rent, the tenant was made liable to pay all utility charges.
3. After the death of Syed Nooruddin, respondent sought ejectment of appellant Aminuddin on the ground of default with the averments that initially rate of rent was Rs,1,100 per month which was increased to Rs,1,600 per month in January, 1985 and lastly raised to Rs,2,000 per month in January, 1987. Without specifying the period of default in his eviction application respondent pleaded that appellant Aminuddin failed to pay or tender rent to him and a sum of Rs,30,900 was outstanding up to September, 1988. According to him, a notice dated 11-4-1988 was served on appellant Aminuddin and as against a sum of Rs,67,900 outstanding against him after adjustment of the payments made a sum of Rs,30,900 was still outstanding against the said appellant. Another notice dated 10-9-1988 was served on the said appellant calling upon him to clear the arrears of rent but without any response.
4. Eviction was resisted and a written statement was filed by Mst. Shahida widow of Syed Nooruddin instead of Aminuddin admitting tenancy in favour of Nooruddin but disputing the rate of rent as claimed by the respondent. According to said written statement in terms of agreement of tenancy rent was admitted at the rate of Rs,450 per month which was increased from time to time and finally raised to Rs,900 per month which was paid up to October, 1988 after adjustment of taxes paid to local authorities. It was maintained that rent for the months of November, December, 1988 and January, 1989 was offered to the respondent through her relative living on the first floor and also through her husband but she refused to accept the same. Consequently rent at the rate of Rs,900 per month was deposited in Miscellaneous Rent Case No,65 of 1989 w,e,f, November, 1988 uptodate. Service of notice was denied with the assertion that no amount was outstanding against the tenant.
5. During the pendency of the case at the instance of respondent, appellants Nos.2 to 6 being legal representatives of deceased Syed Nooruddin were joined as party to the eviction application and amended memo. Was filed without any corresponding amendment.
6. On behalf of appellants Nos.2 to 6 amended written statement was filed under the signature of appellant Syed Wajihuddin taking almost the same pleas as raised in the earlier written statement.
7. At the trial, respondent examined her husband and attorney Sultan Ahmed Khan who produced copies of two legal notices issued to Aminuddin alongwith postal registration receipt in respect of the first notice. On the other hand, appellant Syed Wajihuddin appeared in the witness-box in rebuttal who produced a copy of the tenancy agreement, a copy of the Miscellaneous rent application and a copy of challan evidencing the deposit of Rs,3,600 in miscellaneous rent case on 26-1-1989.
8. On consideration of the relevant evidence on record and hearing parties' counsel, learned Controller without deciding the rate of rent payable by the appellants on the basis of report of Nazir concluded that no rent had been deposited in Miscellaneous Rent Case after March, 1992 and the appellants failed to explain non-deposit of rent, therefore, they had committed default and were thus liable to ejectment. Consequently he directed ejectment of the appellants which has been impugned in this appeal.
9. Admitted case of the appellants is that the rate of rent was lastly raised to Rs,900 per month which they are liable to pay under the law in order to continue the tenancy even after the expiry of the tenancy agreement. Likewise I am not inclined to accept the version of the respondent that the appellants were in arrears of rent to the tune of Rs,30,900 up to September, 1988 as no concrete and plausible evidence was adduced in support of this plea except a copy of the legal notice dated 11-4-1988 addressed to appellant Aminuddin giving the breakup of the outstanding rent. By this notice respondent had called upon the aforesaid appellant to pay a sum of Rs,67,900 within 15 days which amount included even the rent due for a period exceeding three years prior to the date of notice. In the absence of any adequate and satisfactory evidence to substantiate that the appellants were in arrears of rent to the extent of Rs,30,900 it is highly difficult to hold the appellants guilty of default.
10. Appellants' own case however, is that rent for the months of November, December, 1988 and January, 1989 was offered to the respondent through her relative and more particularly through her husband who refused to accept the same. This plea was suggested to the respondent's husband during his cross-examination but for obvious reasons he denied the same. Be that as it may, according to appellants, they deposited rent w,e,f, November, 1988 in the office of the Controller with his permission vide Miscellaneous Rent Case No, 65 of 1989. In the first instance rent for four months amounting to Rs,3,600 was deposited on 26-1-1989 which according to appellants' own case would cover the rent for the period from November, 1988 to February, 1989. A glance at the Nazir's report with regard to deposits made in the aforesaid case at page 124 of the lower Court file establishes that last deposit was made on 9-4-1992 which would cover the rent for the month of March, 1992.
11. There is considerable force in the argument advanced at the bar that after this date appellants did not fulfil their statutory duty to deposit rent in the office of Controller as undertaken by them in the Miscellaneous. Rent Case and as expected of them in order to continue the tenancy. On the other hand it was contended on behalf of the appellants that there was no notice or direction from the Controller to the appellants to deposit rent in the office during the pendency of the rent case as such they cannot be considered to be in default in payment of rent. No doubt, no order in terms of section 16(1) of the Ordinance was passed by the Controller, appellants cannot escape their statutory liability to pay rent to the respondent every month and evidently there is no lawful justification for discontinuing the deposit of rent initiated by themselves. I would, therefore, conclude that though there was no default in payment of rent on the date of eviction application, but the appellants by reason of their own negligence and indifference committed a wilful default by abruptly discontinuing the deposit of rent during the pendency of the proceedings. Indeed they were not entitled to prior notice either from the respondent or from the Controller for wilful default on their part.
12. The matter does not end here. Even after filing appeal before this Court they did not care to realise their statutory duty to pay rent. On the hearing fixed on 14-3-1995 appellant No,2 Syed Wajihuddin who has been contesting and pursuing the appeal on behalf of the appellants, and present in Court, at the potation by learned counsel for the respondents was directed by my learned brother Kamal Mansur Alam, J. To continue depositing the rent with the Rent Controller as before but the record indicates that no steps were taken to comply with this lawful direction by the appellate authority for the reasons not disclosed by the appellants.
13. As to the consequences of commission of default during the pendency of eviction proceedings before the Controller or before the appellate authority, there is a recent judgment in the Pakistan Art Emporium Shop v. Palace Hotel, Karachi (1989 CLC 34) in which late Allandino G. Memon, J. After taking into consideration the earlier judgments by this Court held that subsequent default which occurred even after filing of ejectment application till the rent was deposited could be taken into consideration, while deciding the question of default. See PLD 1987 Lahore 407 also.
14. For the aforesaid facts and reasons, I am clear in my mind and hold that there was contumacious default on the part of the appellants during the pendency of the eviction proceedings before the Controller as well as during the pendency of this appeal before this Court.
In the circumstances discretion could not be legally exercised in their favour. Learned Controller was, therefore, justified in directing eviction of the appellants. Accordingly appeal stands dismissed. Appellants are directed to vacate the demised premises within 60 days of the order subject to deposit of arrears of rent due against them, within 30 days failing which a writ of possession shall issue without notice.