1. This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order, dated 31-5-1994 passed by III Senior Civil Judge, Karachi, Central, in Rent Case No.1513/93, Mst. Yasmeen Aziz v. M/s. Jodhpur Rajastan Cooperative Housing Society Ltd. Whereby an application under section 15 of the Rent Ordinance filed by respondent/landlady was allowed and appellants/tenants were directed to hand over the vacant possession within sixty days from the date of impugned order subject to return of advance amount of Rs.7,000 to the appellant/tenant.
2. Brief facts of the case are'that the respondent/landlady filed ejectment application under section 15 of Rent Ordinance against the appellants/tenants in respect of Flat No.B-II/2, Nawaz Court, Water Pump, F.B. Area, Block 16, Karachi, which was on 'rent at the agreed rate of Rs.900 per month on the ground that she needed the said flat premises for her own personal use and that the appellants/tenants have failed to tender rent from March, 1993 to July 1993 and were, thus, liable to be evicted. The respondents filed written statement wherein they stated that tenancy agreement dated 1-3-1984 was executed between Aziz Ahmed the father of the present respondent on one side and appellants/tenants on other side and thereafter again in February, 1989 another tenancy agreement was executed by Aziz Ahmed, father of the applicant on one hand and the appellants/tenants on the other hand. It is stated that rent for the month of April 1993 was paid against the receipt thereafter rent collector did not come to collect rent during the months of May and June, 1993 and rent for the said two months was sent through cheque dated 25-7-1993 and then appellant sent rent for the months of July 1993 and August 1993 through letter dated 15-8-1993 and no notice as required under section 18 of the Rent Ordinance was served upon the ppellants/tenants therefore, there was no default in the payment of rent and the alleged personal requirement was mala fide. Learned Rent Controller on the pleadings of parties settled the following issues: ---
(1) Whether the opponent committed wilful default in payment of rent?
3. (2)Whether the applicant requires the premises in question for her personalbona fide use?
(3) What should the order be?
4. The respondent/landlady filed affidavit of her father her attorney Mr. Aziz Ahmed who has produced photocopy of general power of attorney Exh.A/1, photocopy of mutation order of K.D.A.
5. Dated 26-3-1991 in favour of respondent/landlady as Exh.A/2, engagement card Exh.A/3, decoration charges Exh.A/4, photocopy of rent receipt Exh. A/5 and affidavit-in-evidence of Mr. Shabbir Ahmed. The appellant/tenants examined Mr. S.M. Tahir, Secretary of the appellants who has produced photocopy of agreement Exh.0/1, copy of letter, dated 25-7-1993 Exh.0/2, postal registration receipt and A/D receipt Exhs.0/3 and O/4, letter dated 15-8-1993 as Exh.0/5, postal receipt of Exh.0/6, A/D receipts as Exh.0/7 and O/8, photocopies of rent receipts Exhs.0/9 to 0/34, photocopy of agreement Exh.0/35 and affidavit of Mehmood Baig.
6. After recording the above evidence and hearing the learned counsel for parties, learned Rent Controller passed the impugned order against which present appeal has been preferred.
7. I have heard Mr. Arif Bilal Sherwani, learned counsel for appellants only as the respondent and her counsel have remained absent without any intimation though repeatedly called since morning.
8. Learned counsel Mr. Arif Bilal Sherwani has argued that learned Rent Controller should have framed issue of relationship of landlord and tenant between the parties as such plea was raised by him in the written statement. I have gone through the written statement filed by the appellants/tenants. I do not find specific denial on the part of the appellants in respect of their being not tenant of respondent except that it has been stated in para. 3 of the written statement that "opponent/landlord is Mr. Aziz Ahmed son of Abdul Ghani and that no notice as required under the law for the change of ownership has been received by the opponent". No suggestion in the cross- examination to Mr. Aziz Ahmed. Attorney of the respondent/landlady has been made that respondent was not landlady of the appellants/tenants. Exh.A/2 is the mutation order dated 26-3- 1991 which showed that respondent was the owner of the flat premises which she has got it through gift deed from her grandfather Abdul Ghani. Ejectment application was filed on 21-7-1993 before the Rent Controller. Filing of ejectment case would amount to notice within the meaning of section 18 of the Rent Ordinance. The object of section 18 of the Rent Ordinance is to enable the tenant to know as to whom he has to pay the rent and when ejectment application is filed, it would amount to a notice within the meaning of section 18 of the Rent Ordinance. Non-service of notice under section 18 of Rent Ordinance, on the tenant would not amount to negation of the relationship of landlord and tenant between the parties. Reference is made to Maj. (Rtd.) Muhammad Younus v.
9. Mehrajuddin 1986 SCM R.751, Muhammad Ragib v. Abdul Razak PLD 1994 Kar. 20 and Pakistan National Shipping Corporation v M/s. General Service Corporation 1992 SCM R 871. As soon as the appellants/tenants came to know that the respondent/landlady has become owner by virtue of mutation order Exh.A/2, then within the 30 days from the date of service of notice of filing of ejectment application the rent due, should have been paid. In the instant case, the appellants/tenants appeared through their Advocate who filed power of attorney on 3-8-1993 and filed written statement and affidavit-in-evidence of S.M. Tahir wherein he stated that appellants have paid rent up to April 1993 and thereafter the lent collector did not come to collect rent therefore, rent for the months May and June, 1993 was sent through cheque and thereafter again rent was sent for two months through cheque for July, 1993 and August, 1993 but the same returned undelivered. It would mean that from May, 1993, the appellant/tenant, did not tender rent to the respondent/landlady even within thirty days after filing of ejectment case on 21-7-1993. The alleged tender of rent through cheque is no tender within the meaning of section 10 of Rent Ordinance.
10. There is no evidence on record that the appellants/tenants tendered rent within thirty days from the date of service of notice of ejectment application upon the appellants/tenants. It is the liability of the appellants/tenants to tender rent and it is not the responsibility of the respondent/landlady to go and collect rent from the appellants/tenants. Admittedly, rent as para. 5 , of tenancy agreement Exh.A/1 was payable by 5th day of each month in advance according to English Calendar but rent for the month of May, 1993 was not paid by 5th of May, 1993 to the respondent.
11. Reference is made to Mst. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190, Syed Asgharali Imam v. Muhammad Ali PLD 1988 SC 228 even if it be said that in view of Shezan Ltd. v. Ghaffar Khan 1992 SCM R 2400 the appellants/tenants became statutory tenant then also rent for the month of May, 1993, was to be paid by 30th of August 1993 but no rent for the said month as well as for the months of June and July, 1993 and onwards was not paid within the meaning of section 15(2)(ii) of Rent Ordinance. Testimony of respondent/landlady's attorney and her witness could not be shaken in the cross-examination. Learned counsel for appellants even did not put suggestion in the cross- examination of Aziz Ahmed that the rent for the May and June, 1993, July, 1993 and August, 1993 was sent through two separate cheques to him though remittance of rent through cheque was not due tender within the meaning of section 10 of Rent Ordinance. There is also no evidence in the shape of cheque or any letter from the bank on record to show that cheques were sent to the respondent or to her attorney or presented for payment. It was not necessary for the Rent Controller to pass an order under section 16(1) for deposit of rent in respect of arrears due. It was the responsibility and liability of the appellant/tenant to make payment as required by law. The appellant/tenant cannot escape the liability of payment of rent by ` stating that he was not called upon by the Rent Controller to make payment Father of the respondent/landlady has filed his affidavit wherein he has stated that respondent was owner and landlady of the premises, there remained nothing for the appellants/tenants to deny the tenancy when the appellants themselves have been previously making payment to her father in the capacity of the rent collector on behalf of his father. In fact, the appellants have admitted the respondent as landlady, the only ground for their denial was that they had not received notice as required by section 18 of the Rent Ordinance which contention was devoid of merit and' force: I do not find any substance in the contentions of the learned counsel for appellants and do not find any illegality with the finding on the point of default in the payment of rent by the appellants/tenants hence no exception could be taken to the finding of the learned Rent Controller.
12. Next contention of the learned counsel for appellants is that need of the respondent/landlady is not bona fide one and is not based on good faith. The statement on the point of bona fide need of the respondent/landlady in the ejectment application that after her marriage with her cousin she would shift in her own flat premises is reiterated by her attorney and father in the affidavit-in--- evidence which has not been shaken in the cross-examination or rebutted by the appellants/tenants. Even no suggestion was made to Aziz Ahmed, the father and attorney of respondent/landlady that the need of the respondent/landlady was not based on bona fide and good faith. Nothing was suggested to Shabbir Ahmed the uncle of respondent/landlady in respect of need of the respondent/landlady that the same was not bona fide or not based on good faith. It is settled law that if no suggestion is made to challenge the statement in the cross-examination it would mean that the said assertion has been accepted. Accordingly, contention of the learned counsel for appellant has no substance that the respondent/landlady has not proved the bona fide need in respect of flat premises.
13. In view of the aforesaid reasoning, I do not find merits in this appeal which is hereby dismissed, however, the respondent is directed to refund the deposit to the appellants. The appellant/tenant is, however, given sixty days' period to vacate the premises subject to deposit of rent for the said period in the office of Rent Controller.