1. ' This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against the judgment, dated 29-9-1994 passed by V Rent Controller, Karachi South in Rent Case No,1555 of 1993, Raeesa Bi v. Saeed Baloch whereby an application under section 15 of Rent Ordinance filed by respondent/landlady was allowed and the appellant/tenant was directed to hand over the vacant possession of the premises in dispute within sixty days' period to the respondent.
2. ' Brief facts of the case are that the respondent/landlady filed eviction application under section 15 of Rent Ordinance on 31-10-1993 against the appellant/tenant stating therein that she has purchased the property in dispute from the previous owner Mr. Akhlaq Ahmed through registered sale-deed No,5450 dated 24-11-1990 whereas the appellant has been tenant of the said premises at the monthly rent of Rs.121 and after the purchase of the said premises, the respondent/landlady sent a letter, dated 25-5-1993 calling upon him to pay the arrears from 1-11-1992 which intimation reached the appellant but he failed to pay or tender rent to the respondent on receipt of the said notice. The respondent had further stated that the appellant has deliberately failed to pay rent of the premises in his occupation from 1-11-1992 till 31-9-1993 therefore, latter was liable to be evicted.
3. The appellant/tenant filed written statement wherein he denied to be tenant of the respondent and stated that he did not receive any intimation as required under section 18 of the Rent Ordinance.
4. The appellant further stated that he was tenant of one Akhlaq Ahmed to whom he paid rent from January to December, 1992 as per Annexure 'C' and thereafter, he sent cheque for Rs.1,452 towards the rent for the period from 1-1-1993 to 31-12-1993 but the said cheque was not encashed by the previous owner with mala fide intention, consequently, appellant sent rent for the month of January, 1993 to March, 1993 amounting to Rs.363 through money order as per Annexure 0/2, and he obtained such certificate from the post office informing him that the said amount was paid to previous owner Akhlaq Ahmed on 14-3-1993. It is further stated that as the previous landlord was not accepting rent from appellant, therefore, in order to avoid default in the payment of rent, he deposited rent, intimation of the same was sent to previous owner Akhlaq Ahmed. The appellant also stated that he was not in the knowledge of any sale or transfer in respect of disputed premises in favour of respondent who was a cheater and played fraudulent game with the appellant by sending an envelope which contained nothing but Eid Greetings. It is stated that the appellant has made deposit of rent regularly in the name of previous owner Akhlaq Ahmed, therefore, former has not committed any default in the payment of rent and further that the respondent in the legal notice has not stated about the default having been committed by the appellant.
5. ' The respondent filed affidavit-in-evidence of Intizamuddin who has produced photo copy of alleged rent receipts for the sum of Rs.1,452 dated 9-2-1992 having been paid to the previous owner by the appellant, photo copy of notice dated 18-1-1993 by the counsel of the appellant to the previous owner wherein cheque for Rs.1,452 is said to have been sent to him, photo copy of A/D receipt Exh.0/1, photo copy of registered postal receipt Exh.0/1, photo copy of postal money order coupon and postal money order receipt No,8942 Exh.0/1, photo copy of postal certificates dated 9- 3-1993, photo copy of simple Miscellaneous Rent Case No,433 of 1993, Muhammad Saeed v. Akhlaq Ahmed Exh.0/4, photo copy of challan receipt deposited in the bank for the sum of Rs.726 on 20-3- 1993 in the name of previous owner Akhlaq Ahmed Exh.0/5, photo copy of bank challan in respect of amount of Rs.726 having been deposited in Miscellaneous Rent Case No,433 of 1993 in the name of previous owner Akhlaq Ahmed, postal registered receipt No,1788, photo copy of chit of Eid Greetings Exh.0/8, photo copy of envelope Exh.0/9, photo copy of letter, dated 7-6-1993 sent by the appellant to the attorney of respondent, photo copy of the envelope and A/D receipts Exh.0/11, photo copy of envelope sent by the post office Exh.0/13, photo copy of notice, dated 30-10-1993 sent by the respondent's counsel to the appellant Exh.0/14 alongwith photo copy of envelope, photo copy of the reply from the counsel of appellant, dated 8-11-1993 to the counsel for respondent, registered postal receipt No,1824 Exh.0/15, complaint to the S.H.O., Risala Exh.0/7 and photo copy of Miscellaneous Rent Application No,527 of 1994 filed by appellant against the respondent Raeesa Bi under section 10(3) of the Rent Ordinance in the month of March, 1994, photo copy of challan of the bank in respect of a sum of Rs.726 having been deposited in the name of the respondent on 11-7-1994, photo copy of the power of attorney allegedly executed by Mst. Raeesa Bi in favour of one Intizamuddin, Exh.A, photo copy of notice under section 18 dated 25-5-1993 Exh.A/1, photo copy of registered postal receipt and A/D receipt as Exh.A/2 and Exh.A/3, photo copy of the extract from the property register of District Exh.A/8 mutating the name of the respondent Raeesa Bi, conveyance deed in respect of property in dispute, executed by Akhlaq Ahmed in favour of Mst.
6. Raeesa Bi Exh.A/9.
7. ' The appellant Saeed Baloch filed his affidavit-in-evidence who also produced photo copies of documents Exhs.O/2 to 0/15. The deponents who filed the affidavits-in-evidence were cross- examined by the learned adversary counsel for parties. After recording of above evidence and hearing counsel for parties, impugned order was passed.
8. ' Heard the counsel for parties, perused the record and proceedings of the case and the case-law cited by them.
9. ' Contention of learned counsel for appellant is that the appellant is not defaulter in the payment of rent as he has paid rent to previous landlord up to December, 1992 and thereafter, he sent cheque for the period from 1-1-1993 to 31-12-1993 for the sum of Rs.1,452 which was not enchased by the previous landlord, therefore, he sent postal money order as per Exh.O/2 for the sum of Rs.363 being rent from January, 1993 to March, 1993 which was received by him as per postal certificate and thereafter, he filed Miscellaneous Rent Case No,433 of 1993 in the month of March, 1993 against the previous owner Akhlaq Ahmed and deposited a sum of Rs.726 on 20-3-1993 being rent from January, 1993 to June, 1993. However, he also deposited a sum of Rs.726 being rent from January, 1994 to July, 1994 in the name of respondent in Miscellaneous Rent Case No,527 of 1994 on 11-7- 1994. He further submitted that the power of attorney in the name of Intizamuddin is a forged, therefore, his evidence in the form of affidavit in evidence should be discarded in view of the report of the Finger Expert which was obtained privately (page 201 of the R&P) by the appellant and affidavit of S.H. Siddiqui the Finger and Handwriting Expert who was not cross-examined by the respondent. He has placed reliance upon (i) Noor Ahmed v. Mairaj Bibi (1994 CLC 479 and (ii)
10. Farman Sher Gil v. Ms. Seema Safdar (1991 CLC 1108).
11. ' Learned counsel for respondent has argued that the respondent purchased the property in dispute on 24-11-1990 and thereafter, he sent an intimation about the transfer of the premises on 25-5-1993 as required by section 18 of the Rent Ordinance but the appellant/tenant did not tender rent to the respondent and again a notice, dated 30th October, 1993 was sent to the appellant wherein he was informed that intimation was sent to him on 25-5-1993 about the transfer of the premises and further that the said premises was required by the respondent. He further submitted that the appellant/tenant replied the said notice as per his letter, dated 8-11-1993 Exh.O/15 wherein he admitted to have received his notice, dated 30-11-1993. He submitted that as the appellant/tenant did not pay rent he ultimately filed eviction application under section 15 of the Rent Ordinance on 31-10-1993. He further argued that the appellant should have at least paid due rent to the respondent after he came to know about the transfer of the shop premises as per letter, dated 30-10-1993 Exh.O/14, receipt of which was acknowledged by him in his reply Exh.O/15 dated 8-11-1993 but the appellant/tenant continued to deposit rent in the name of previous landlord. He further submitted that filing of eviction application would amount to due notice but the appellant did not tender rent to the respondent within the period of 30 days as stipulated in section 18 of the Rent Ordinance but the former deposited the rent on 7-11-1994 in Miscellaneous Rent Case No,527 of 1994 therefore, on the face of record there has been default in the payment of rent by the appellant, therefore, no interference was required to be made to the findings of learned Rent Controller. He further argued that the appellant has no right to challenge the power of attorney executed by the respondent in favour of her son Intizamuddin and it would be only for the executant who could challenge the execution of said power of attorney. In support of his contentions, he has placed reliance upon (i) Syed Khursheed Ali Jaffery v. Jamiluddin Siddiqui (1993 CLC 2511) wherein learned Single Judge at page 2514 observed that "even oral authorization would be sufficient to enable the agent to institute legal proceedings on behalf of principal, therefore, unless the respondent had himself disputed the execution of power of attorney the same cannot be challenged by the appellant".
(ii) Major (Retd.) Muhammad Yousuf v. Mairajuddin and others (1986 SCM R 751) wherein their Lordships of Supreme Court held that "if a notice under section 13-A of West Pakistan Urban Rent Restriction Ordinance was not served that would not amount to absence of relationship of landlord and tenant and the rent not having been paid even after the institution of application for eviction would be treated as notice under section 13-A". Section 13-A of the West Pakistan Urban Rent Restriction Ordinance is analogous to section 18 of Sindh Rented Premises Ordinance.
(iii) Abdul Malik v. Mrs Qaiser Jehan (1995 SCM R 204) wherein their Lordships of Supreme Court held that "where tenant deposited rent in Court instead of making an enquiry about the title of property in the name of previous owner, such conduct on the part of tenant would cause harassment to the landlady because she would not be in a position to withdraw the rent deposited in Court by the tenant and the said conduct of the tenant in depositing rent in the Court, would be contumacious and amounted to cause harassm ent to landlady, hence tenant could not take cover under the plea that it was a technical default".
(iv) Habib Bakhsh v. Mst Bilquis Begum and others (1995 SCM R 448) wherein their Lordship of Supreme Court observed that "tenant not paying rent to the deceased purchaser and made deposit of rent with the Rent Controller through Miscellaneous Rent Application in the name of previous owner who had ceased to have any interest in the tenement, the said deposit of rent would be of no legal consequence".
12. ' It the instant case the appellant has admitted in his reply, dated 8-11-1993 Exh.O/15 about the receipt of the notice, dated 30-11-1993 Exh.O/4 but yet he continued to deposit rent in Miscellaneous Rent Case No,433 of 1993 in the name of previous owner Akhlaq Ahmed. It is also admitted position that after filing of eviction application on 31-10-1993, the appellant continued to deposit rent in respect of premises in dispute in the name of previous owner in Miscellaneous Rent Case No,433 of 1993. It is only on 11-7-1994 that the appellant deposited sum of Rs.726 as rent for the period from January, 1994 to July, 1994 in the name of respondent when even according to his own admission he came to know about the transfer of shop premises in dispute at least on 8-11-1993, whereas section 18 of the Rent Ordinance required that after receipt of intimation, due rent should be paid within thirty days from the date of receipt of such intimation which admittedly was neither paid nor tendered. The payments made in the name of previous owner would not be of any consequence and would not absolve the appellant of the default in the payment of rent which he has committed. Evidence on record proves that the appellant has committed wilful and deliberate default, therefore, no interference is required to the finding of Rent Controller.
13. ' In view of the aforesaid reasonings and the case-law cited, there is no merit in the appeal hence the same is dismissed. However, two months' period is given to the appellant to vacate the premises subject to deposit of rent in the office of Rent Controller.