1. ' This is First Rent Appeal directed against an order dated 12-4-1992 passed by the 1st Senior Civil Judge and Rent Controller, Karachi-Central, in Rent Case No,713/85, Rashidullah Samma v. Syed Mehmood Ali whereby an application filed under section 15 of the Sindh Rented Premises Ordinance, 1979 hereinafter called Rent Ordinance was allowed against the appellant/tenant and was directed to hand over the possession of the premises in question to the respondent/landlord within sixty days from the date of impugned order.
2. ' Brief facts of the case are that respondent/landlord filed eviction application against the appellant/tenant in respect of Shops Nos.1, 2 and 3 and garrage of House No,3-H-5/1, Nazimabad, Karachi, which premises were on rent at the rate of Rs,300 per month on the ground that the appellant/tenant failed to pay rent to the respondent/landlord even after service of intimation under section 18 of the Rent Ordinance and further that the appellant/tenant has, without consent of the respondent/landlord, dismantled the partition walls of all the three shops and has converted the three shops into one shop and back side wall of one shop has also been broken and badly damaged to make a free access to said garrage thereby has materially impaired the value and utility of the said premises. The said eviction application was resisted by the appellant/tenant who filed written statement wherein he denied to have committed default in the payment of rent and stated that he has been depositing rent in Miscellaneous Rent Case No,2938 of 1978, Ejectment Rent Case No,3922 of 1978 and ultimately in Ejectment Rent Case No,713/85 from 18-7-1978 till 20-8-1984 in the name of deceased Halimabai. He has also stated that copy of the mutation register dated 1- 3-1983 in the name of respondent/landlord is defective which has been obtained by suppressing the material fact from the concerned department and it did not amount to a title and full ownership of the property as the names of three daughters were not mentioned in the said copy of mutation register. It is also stated that Ejectment Case No,3922/78 filed by Mst. Halima Bai waS finally dismissed on 28-1-1980 for non-prosecution wherein he has deposited rent and in fact he has deposited rent in excess, therefore, he subsequently made an application for withdrawal of excess amount of rent which was allowed by the Rent Controller.
3. ' The respondent/ landlord filed affidavit-in-evidence of his attorney Israr Ahmad and produced photocopy of letter to Manager, United Bank Ltd., as Exh. A/1, attested copy from register of mutation dated 13-11-1977 as Exh.A/2, reply of the bank dated 19-1-1980 as Exh.A/3, reply of the appellant/tenant as Exh.A/4, reply of notice under section 18 dated 12-11-1984 as Exh.A/5. The appellant/tenant filed his own affidavit and produced certified true copy of application under section 13(2)(i) as Annexure A, photocopy of general power of attorney in favour of Kalimullah Annexure B, report of Nazir Annexure C, two photocopies of rent receipts as Annexures D and E, money order coupon Annexures F & G, postal receipts as Annexures H & I, photocopy of order in Rent Case No,3922/78 as Annexure 1-2, application for withdrawal of rent in Rent Case No,3922/78 as Annexures 1-3, photocopy of statement of rent deposited in Court as Annexures 1-4 and 1-5, seven photocopies of rent receipts as Annexures J to P, photocopy of Karachi Electric Supply Corporation's bill as Annexure Q. Learned Rent Controller settled as many as four issues and held that ejectment application was maintainable and that appellant/tenant was defaulter in the payment of rent while the issue as to whether value and utility of the premises were impaired, it was answered in the negative and in view of the finding on issue No,2, eviction of the appellant/tenant was ordered.
4. ' I have heard Syed Yousuf Ali, learned counsel for appellant and Mr. Sajjad Ali Shah, learned counsel for respondent and perused the record and proceedings of the case and the case-law cited by the parties' learned counsel.
5. ' The only point for consideration in this appeal is whether the deposit of rent in Miscellaneous Rent Case No,2938/78, Ejectment Rent Case No,3922/78 and thereafter in Ejectment Rent Case No,713/85 out of which this present appeal has arisen in the name of deceased Mst. Halima Bai by the appellant tenant after the expiry of thirty days' period of services of intimation notice dated 31-10- 1983 under section 18 of the Rent Ordinance would be legal tender of rent.
6. ' It is admitted by the respondent's learned counsel that the appellant/tenant has made deposit in Miscellaneous Rent Case No,1938/78 as per statement at page 111 of the R & P, in Ejectment Rent Case No,3922/78 as per statement at page 131 of the R & P of the case and in Rent Case No,713/85 as per statement at page 133 of the R & P. It is also admitted by the learned counsel for appellant that all the payments have been made in the name of deceased Halima Bai the mother of the respondent/landlord. The appellant's learned counsel also admitted the receipt of intimation notice dated 31-10-1983 under section 18 of the Rent Ordinance which also stood proved by his reply dated 12-11-1983 through his counsel to the respondent/landlord. Learned counsel for appellant/tenant also admitted that appellant/tenant knew" about the death of Mst. Halima Bai and also knew the legal heirs in view of the order dated 28-1-1980 passed in Ejectment Rent Case No,3922/78 which appeared at page 125 of the R & P as well as could also be inferred from the trend of the cross-examination by him to the respondent's/landlord's attorney wherein he suggested the names of the daughters of deceased Mst. Halima Bai.
7. ' Syed Yousuf Ali, learned counsel for appellant also admitted in the Court that the appellant/tenant did not deposit the rent in the name of deceased Mst. Halima Bai even after the receipt of intimation notice under section 18 of the Rent Ordinance because the attested copy of extract from the register of mutations was not a title document and further that the respondent/landlord failed to produce successsion certificate.
8. ' In the instant case the appellant/tenant has not tendered rent to the respondent/landlord the terms of section 10(3) of Rent Ordinance only on the ground, that the copy of extract from the mutation register was not sufficient to confer title upon the respondent and that no succession certificate was produced by him. It is not case of the appellant that the respondent/landlord refused or avoided to accept the rent. In Abdul Malik v. Mrs. Qaiser Jehan 1995 SCMR 204 at page 206, para. 3 it was observed:-- "Section 10(3) of the Ordinance provides that where the landlord refuses to accept rent, it should be sent to him through postal money order or it should be deposited with the Controller within whose jurisdiction the premises is situate. This provision will apply where there is refusal or avoidance to accept the rent. Certain cases in which there may be uncertainty, fraud or misrepresentation the tenant may be permitted to invoke the principles of this provision. However, this cannot be made a handle for harassing the landlord because everyone knows that it may be easier for the tenant to deposit the rent in Court, but difficulties are faced by the landlords for its withdrawal. Therefore, in such cases it has to be seen that while depositing the rent in Court there has been refusal or avoidance and further that the conduct of the tenant is not contumacious or with mala fide intention to harass the landlord. In the facts of the present case the respondent had served a notice informing the appellant that the property has been gifted to her. Instead of making any inquiry about the title he started depositing rent in Court. The respondent had supplied a copy of the gift deed also and from evidence it seems that Haji Muhammad Bashir, the original owner had gifted to his nephews who had gifted to the respondent who was closely related to them. In these circumstances, the deposit of rent without replying to the notice of the respondent under section 18 of the Ordinance could not be held to be a bona fide conduct on the part of the appellant.
9. ' In Habib Bakhsh v. Mst. Bilquis Begum and others 1995 SCMR 448 at page 450, para. 4 it was observed:-- "Since the petitioner was insisting not to pay rent to the deceased purchaser, the deposit of rent by him with the Rent Controller through miscellaneous rent application in the name of the previous owner, who had ceased to have any interest in the tenement was of no legal consequence."
10. ' In Muhammad Yousaf and another v. Nadimuddin Malik PLD 1993 Lahore 101 learned Judge in Chamber at page 104 has observed:-- "So, in view of the law laid down in the aforementioned cases, I am convinced that in the present case the appellants had been served with a valid notice under section 13-A of the Urban Rent Restriction Ordinance, 1959, and relationship of landlord and tenant between the parties had come into existence. Admittedly the appellants failed to tender or pay any rent to .Their new landlord, i,e, the respondent and thus rendered themselves liable for immediate ejectment. Depositing rent in the office of the Rent Controller in the name of the previous landlord would not be considered a valid tender of payment of rent."
11. ' In Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24 at page 27 it was observed:-- "In these circumstances the failure of the petitioner to offer the rent to respondent landlady even after October, 1979 was without any justification. The mere fact that the application for his ejectment was pending or that an order under section 13(6) had not yet been passed would not absolve him of his duty under the Rent Restriction Law to pay/offer the rent to the landlady each month on time. The receipt of the copy of the ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of section 13-A of the Ordinance. And the mere fact that after about a year he made the deposit under compulsion of an order of deposit made by the High Court will not make any difference."
12. In view of the admitted position and the case-law cited it stood proved that deposit of rent by the appellant/tenant even after service of intimation notice under section 18 of the Rent Ordinance was made in the name of deceased Mst. Halima Bai so also continued to deposit even after the death of deceased Mst. Halima Bai: when the appellant knew about the death of Mst. Halima Bai and the names of legal heirs of deceased, therefore, the said deposit of rent in the name of deceased Mst.
13. Halima Bai was not legal and due tender under the Rent. Ordinance, hence, the appellant/tenant was defaulter in the payment of rent if not from the date of order dated 28-1-1980 passed in Rent Case No,3922/78 at least from the date when notice of intimation under section 18 dated 31-10-1983 was received and replied on 12-11-1983 till the filing of ejectment application on 11-3-1984 and thereafter, till he made deposit in the name of respondent/landlord when an order under section 16(1) of the Rent Ordinance dated 22-8-1984 was passed.
14. ' The contention of the learned counsel for appellant that ejectment application is not maintainable and it is not filed on behalf of all legal heirs of deceased Mst. Halima Bai has no merit considering that any one of the legal heirs/owner is entitled to file ejectment application. It will not be out of place to state here that in F.R.A. 76/88 filed by respondent/landlord in this Court it has been mentioned by my learned brother Mamoon Kazi, J. In para. 2 of the order dated 1-12-1991 that "learned counsel for respondent agrees that the application which was filed by one co-owner of the property was maintainable", therefore, the said contention has no merit.
15. Next contention of the learned counsel for appellant is that the ejectment application has been filed through general power-of-attorney, Israr Ahmad Khan who possessed attorney from one Rashidullah Samma, therefore, ejectment application was not maintainable. This contention has also no force considering that when one of the co-owners can file ejectment application then the attorney can also on behalf of one of the co-owners can file ejectment application. The case-law cited PLD 1976 Kar. 756, 1983 CLC 337 and 1987 SCMR 1288 by the learned counsel for appellant has no application to the facts of the instant case.
16. ' In view of the aforesaid reasonings and case-law I do not find merit in this appeal which is hereby dismissed. However, appellant is given sixty days' period to vacate the premises subject to deposit of rent for the said period in the office of Rent Controller.