1. MUHAMMAD ASHRAF LEGHARI, J.--- The appellant in this appeal has assailed the impugned order, dated 15.3.2000 passed by Vth Senior Civil Judge/Rent Controller, Karachi East, whereby the application under Section 16(2) of the Sindh Rented Premises Ordinance, 1979, filed by the respondents (landlord) was allowed and the defence of appellant was struck off, as he failed to comply with the order, dated 19.10.1999 passed by Rent Controller.
2. The brief facts giving rise to this appeal are that the respondents, who are appellants jointly purchased the Property bearing No. 781-C, P.E.C.H. Society Karachi from its previous owner Mrs. Shamima Begum vide registered sale-deed in November, 1997. Feroz Ahmed Patnawala, the father of appellant was appointed as their attorney. He was authorised to collect the rent and issue rent receipts and proceed any manner in respect of tenancy. The appellant is a tenant of the property i.e. Flat No. 4 situated on the second floor of the property and was paying rent at the rate of Rs.1,100 besides the water, conservancy and fire charges/taxes, payable to the authorities concerned. He has paid monthly rent up to September, 1987, to its previous owner and thereafter he has failed to pay the monthly rent and other charges. As such, he wilfully defaulted paying the rent for which Rent Case No. 696 of 1994 was. Filed in the Court of IVth of Senior Civil Judge and Rent Controller, East Karachi.
3. After the purchase of the property, the respondents sent a notice under Section 18 of the Sindh Rented Premises Ordinance, 1979 through their counsel by a registered A.D. Post on 5.12.1997. The appellant received this notice but did not respond to it.
4. The respondents sent another notice on 14.2.1998, through their counsel. The appellant sent a reply of the aforesaid notice through his counsel on 10.3.1998 and another reply on 20.3.1998 through registered post A.D.
5. The appellant on receipt of aforesaid notices was bound to pay the rent but he deliberately made default and did not tender the rent to the respondents. The respondents urged plea of personal bona fide need of the premises on various grounds. The appellant failed to vacate the premises as well as failed to tender the rent to respondents. The respondents, therefore, filed rent application in the Court of Vth Senior Civil Judge and Rent Controller, East Karachi.
6. The appellant was served and he submitted his written statement, wherein he has admitted that he is tenant of Flat No. 4 and the rent case is pending before IVth Senior Civil Judge and Rent Controller, East Karachi but he denied that he was paying rent at the rate of Rs.1;100 per month. He asserted in the written statement that respondents have no concern with regard to the rent prior to 1997. It is submitted that the respondents had not come to the Court with clean hands. They had filed an application under Order 1, Rule 10, C.P.C. In the Rent Case No. 696 of 1994 for joining them as party. The appellant asserted that he was depositing monthly rent in Miscellaneous Rent Application No. 276 of 1995 in the Court of IVth Senior Civil Judge and Rent Controller, East Karachi.
7. He has responded the notice sent by the respondents and has committed no default in payment of rent. The rent case was filed by Mrs. Shagufta Rehman, the previous owner of the suit property who subsequently sold it to Mst. Naghma Siraj and the plea was raised that the respondents had filed a sale-deed of purchase of property from one Shamima Begum. The record should be verified to ascertain as to how Mrs. Shamima Begum became the sold owner of the property and how she sold the property in question to them.
8. The rest of the allegations were denied by the appellant. He also denied that the property in question was required to respondents for their personal bona fide use.
9. The respondents filed their affidavits in support of their pleadings averred in the ejectment application. They also filed an application under Section 16(1) of the Slndh Rented Premises Ordinance, 1979 on 14.1.1999.
10. The appellant filed objections to the said application and so also the additional objections on 29.10.1999.
11. The learned Vth Senior Civil Judge and Rent Controller passed the tentative rent order on 29.9.1999, which is in fact impugned in this appeal.
12. It is contended by Mr. Mirza Saeed Baig, learned counsel for the appellant that the appellant has committed no default in payment of rent. He asserted that the rent was being deposited in Court since March, 1995, in Miscellaneous Rent Case No. 276 of 1995. The respondents Nos. 1 to 3 owned only 50 paisa share in the premises in question and that the major shareholder has not filed an ejectment application. The ejectment application was not maintainable, as Rent Application No. 696 of 1994 was already pending. It is pleaded that the order passed by the Rent Controller on an application under Section 16(1) of the Ordinance is illegal and without lawful authority. The order for deposing rent passed by the learned Rent Controller was illegal, improper and arbitrary. The respondents have moved an application for impleading them as party in earlier rent case, therefore, this Rent Application bearing No. 401 of 1998 cannot be maintained. The learned counsel argued that he had moved an application under Section 10, C.P.C. Read with S. 151, C.P.C. For the stay of the proceeding but the same was dismissed summarily and thereafter he moved transfer application but during the pendency of the same, the Trial Court passed the impugned order.
13. Learned counsel for the appellant placed reliance upon the cases reported as Habib Bank Limited v. Noor Ahmed (1990 CLC 1170), Ismail v. Mst. Sara Bai and others (1987 CLC 1393), Nasir Kamal Pasha v. Muhammad Ismail Khan (PLD 1983 Kar. 192), A.I Muhammad v. Khalil Ahmed Allahwala and 2 others (1985 CLC 1297) and Anwar Ahmed v. Muhammad Sharif (1991 M LD 701).
14. Mr. Arshad Mubin Ahmed, the learned counsel for the respondents contended that the appellant was served by notice under Section 18 of the Sindh Rented Premises Ordinance, 1979 which is not denied by the appellant. He asserted that after the receipt of said notice, the appellant was required to make payment directly to the respondents and he was not supposed to deposit the same in Court. It is submitted that paras. 1 and 2 of the written statement shows that the appellant his admitted the ownership of respondent. The appellant is depositing _rent in Miscellaneous Rent Case No.276 of 1995 which is being paid bona fidely in the name of a third party who is no more owner of the property. It is stated that objections were filed to an application under Section 16(1) of the Sindh Rented Premises Ordinance, 1979. The impugned order was passed on 15.3.2000, as the appellant failed to comply with the order, dated 29.10.1999. As such, his defence was rightly struck off by the Rent Controller. It is contended that the tentative rent order was passed on 29.10.1999, which was conditional and the respondents were restrained not to withdraw the disputed rent of Rs.650 per month from arrears and future rent as well as the charges of water and severage amounting to Rs.5,034 till the decision of this case. The appellant failed to comply with the said order dated 29.10.1999 and the Rent Controller passed the impugned order on 15.3.2000. The learned counsel for the respondents placed reliance upon the cases reported as Hussain Trading Company, Karachi v. Messrs Jalal Brothers (Private) Limited, Karachi (1994 SCM R 159), Messrs Paramount Linen through Partner v. Mst. Shagufta. Muzaffar (1997 CLC 221), Muhammad Gulzar v.
15. Jamia Masjid Al-Rehmania Trust (2000 M LD 133), Ghulam Hussain v. Mst. Roshan Bibi (1986 SCM R 1714) and Mst. Zulekha Bai v. Muhammad Yaqoob (1989 CLC 479).
16. The plea that respondents are co-sharer in the property to the extent of 50 paisas and they cannot file ejectment application is not tenable. No such plea was taken in written nor any evidence, was led to that effect. The co-owners are even otherwise competent to file an application for ejectment.
17. Reference can be had to a case of Rajab A.I v. Daius B. Kandawalla and another (PLD 1984 Kar. 14).
18. The argument that tentative rent order was illegal and improper, therefore, it was not necessary for the appellant to comply with it, has no force. The Rent Controller had the jurisdiction in the matter and the tentative rent order was conditional. The respondents were hot permitted to withdraw the same till the final decision. The reference can be had to a case of Mahmood Bashir v. Mst. Mubina Begum (1988 SCM R 427).
19. The main controversy outstanding between the parties is as to whether the appellant wilfully failed to pay rent to appellant at the rate of Rs.450 in Miscellaneous Rent Case amounts to payment of rent to landlords. The respondents filed an ejectment application pleading that the appellant had failed to deposit rent. Admittedly the notice was sent to him which was replied and still the appellant continued depositing rent in the name of previous owner. The respondents are not party to the aforesaid Miscellaneous Rent Case No. 276 of 1995 nor they could withdraw the rent from the Court. The tentative rent order was passed on 29.10.1999, which was deliberately not complied with by the appellant and violated the order of the Court. The ownership of respondent is not denied but the appellant is ma/a fidely depositing rent in the aforesaid Miscellaneous Rent Case No. 276 of 1995 at the rate of Rs.450 and is denying the rate of rent to be Rs.1,100. The tentative rent order is clear in terms that the respondent would not withdraw the disputed amount, in spite of this factual aspect of the case, the appellant is intentionally and bona fidely depositing the rent in the name of previous owner, although he is in knowledge that property is transferred to the present respondents. The learned Rent Controller was justified in striking off the defence of the appellant as he made a wilful and deliberate default in payment of rent. The respondents who are lawful owner of the property has received not a single penny towards the rent due against the appellant. Reference can be had to a case of Ghulam Hussain v. Mst. Roshan Bibi (1986 SCM R 1714) wherein their lordships have held as under:- "(3) In support of this petition for leave to appeal from the order of the High Court, the learned counsel contended that the petitioner had committed no default in compliance with the tentative order passed by the Rent Controller. We are unable to agree with this submission for admittedly the rents were not deposited in the account of the ejectment application, The High Court has for good reasons found the petitioner negligent in prosecuting his defence and we ars satisfied that the Rent Controller was justified in striking off the defence of the petitioner. It was for him to have complied with the orders by depositing the rents in the accounts of the ejectment application which was the direction given in the order passed under Section 16(1) of the Sindh Rented Premises Ordinance."
20. The case-law cited by learned counsel for appellant is distinguishable on facts as well as law points from the case in hand.
21. Under such circumstances and the legal position stated above, no exception can be taken to the impugned order passed by the learned Rent Controller and the same does not call for interference. Consequently, the appeal stands dismissed with costs alongwith the listed applications. Appellant shall hand over the vacant possession of premises to respondents within 30 days of the passing of this order.