1. ' This is an appeal under section 21 of Sindh Rented Premises Ordinance. 1979 hereinafter called the Rent Ordinance directed against an order dated 30-4-1991 passed by learned Senior Civil Judge and IIIrd Rent Controller, Karachi West in Rent Case No,717 of 1988 (Mst. Zubaida Begum and 3 others v. Muhammad Muslim) whereby an application under section 15(2) of the Rent Ordinance for ejectment against respondent predecessor-in-interest was filed in respect of the Shop No,8 on Plot No,M-II-E/612, Shershah Colony, Shershah Road, Karachi, which was on the rent at the monthly rent of Rs,70 as per agreement of tenancy dated 16-9-1993, on the ground of default in the payment of rent from February, 1988 till the filing of ejectment application on 24-10-1988 which was disallowed hence the present appeal.
2. ' Brief facts of the case are that the predecessor-in-interest of the appellants filed First Ejectment Case No,968 of 1970 against the predecessor-ininterest of respondent in respect of Shop No,8 on the abovesaid property who was her tenant at the rate of Rs,70 per month on the ground of default in the payment of rent, and during the pendency of said ejectment application former expired, therefore, the present appellants were brought on the record and ultimately the said application was allowed by the learned Rent Controller and against which order, F.R.A. No,245 of 1973 was filed before this Court which was allowed holding that there has been no default. Thereafter, the present appellants filed Ejectment Rent Case No,717 of 1988 against the predecessor-ininterest of the respondent for his ejectment from the Shop No,8 constructed on Plot bearing No,M-II-E/612, Shershah Colony, Block D, Shershah Road, Karachi, on the ground of default in the payment of rent from February, 1988, till the filing of ejectment application on 24-10-1988 after service of notice as required under section 18 of Sindh Rented Premises Ordinance, 1979, dated 31st January, 1988, who filed the written statement wherein he stated that he was paying rent to Mst. Shamsun Nisa Begum original owner/landlady during her lifetime and after her death was depositing the rent in her name in the office of Rent Controller and further stated that he was not informed about the death of original owner/landlady Mst. Shamsun Nisa Begum, hence there has been no default in the payment of rent.
3. ' On the pleadings of the parties the learned Rent Controller settled only one issue viz. "whether opponent committed wilful default in payment of monthly rent in respect of disputed premises? If so, its effect?" The appellants filed an affidavit-in-evidence of Abdul Hannan who filed agreement of tenancy Annexure "A", photo copy of application in respect of Rent Case No,968 of 1970 as Annexure "A/A" alongwith affidavit as Annexure "A/A-1", photo copy of judgment dated 20-2-1983 as Annexure "A/B", photo copies of notices alongwith postal and A/D receipts as Annexures "A/C", A/C- 1" and "A/C-2" and also produced photo copy of notice dated 31-1-1988 alongwith postal receipt and A/D receipt as Annexures "B", B/1" and "B/2". The respondent filed his own affidavit-in-evidence.
4. Learned Rent Controller, after recording the above evidence and hearing the learned counsel for the respective parties dismissed the ejectment application, hence the appeal.
5. ' I have heard Mr. S.M. Akhtar Rizvi, learned counsel for the appellants, after 12-00 noon, while the respondent and his counsel Mr. Fida Muhammad Khan Khel have remained absent in spite of repeated calls since morning without any intimation.
6. ' The only point for consideration is, whether after service of notice dated 31-1-1988 under section 18 of the Rent Ordinance upon the predecessorin-interest of the respondent, the deposit of rent in the name of deceased landlady in the office of Rent Controller by the respondent's predecessor-in- interest and the, respondent would be valid tender in law. My answer is in the negative in view of the following reasons:-- "The respondent's predecessor-in-interest in para. 3 of the written statement admitted that he was paying rent to Mst. Shamsun Nisa Begum the original owner/landlady of the shop in dispute and in para 1 of respondent's reply dated 25-2-1988 to notice dated 31-1-1988 sent by Mr. Abdul Hannan Pasha one of the L.R. Of appellant's predecessor-ininterest admitted the appellants to be legal representative of Mst. Shamsun Nisa by admitting the content of para. 3 of said notice. It is also admitted position that the appellants were brought on record in the First Rent Case No,968 of 1970 and thereafter F.R.A. No,245 of 1973 was also filed by the respondent against the present appellants, therefore, former could not be permitted to say that the appellants were not the legal heirs of deceased Mst. Shamsun Nisa Begum, the original landlady of the demised shop premises. The learned Rent Controller in the impugned order has held that as the appellants did not supply documentary proof to the respondent to show that the former were the legal heirs of the original'owner/landlady Mst. Shamsun Nisa, therefore, the respondent was justified to deposit rent with the Rent Controller in the name of deceased has no legal sanction in view of the above stated admissions on the part of the respondent, admitting the appellants to be the legal heirs of respondent/landlady. In fact, under the law as soon as respondent's predecessor-in-interest received intimation under section 18 of the Rent Ordinance as per notice dated 31-1-1988 demanding rent from the respondent's predecessor-ininterest, the rent should have been tendered to the appellants and in case of failure to accept the rent, same could have been sent through money order and in case of its refusal, rent should have been deposited in the office of the Rent Controller having jurisdiction. Deposit of rent in the name of deceased landlady in the office of the Rent Controller would not be due tender of rent as it would not be in terms of section 10 of the Rent Ordinance. Reference is made to Suleman and another v. M.A. Malick 1988 SCM R 775, Sarwar Abbas v. Mst. Hajrabai and 4 others 1983 CLC 337, Feroze Ahmed v. Mst. Zahra Khatoon 1992 CLC 735 and Munawar Hussain v. Badiul Hassan 1992 CLC 2495. In the instant case, the respondent continued to deposit rent in the name of the deceased original landlady Mst. Shamsun Nisa in order to create hardship and problems for the appellants in collection of rent which has no sanction in law as observed in the above-cited cases. It is not the case of the respondent that he offered rent to the appellants but it was refused.
7. ' In view of the aforesaid reasonings and the case-law cited; the finding of the learned Rent Controller is not legal hence the same is hereby set aside and the appeal is allowed.
8. ' C.M.A. No,262 of 1994 is also fixed for hearing but as I have allowed the appeal and ordered for eviction of the respondent on merits of the case, therefore, it would not be necessary to pass any order on this application, as such, it stands disposed of.
9. ' However, respondent is given 60 days' period to hand over the possession of shop premises subject to deposit of rent in the office of Rent Controller to the appellants.