1. ' This appeal under section 21 of Sindh Rented Premises Ordinance, 1979 has been filed by appellant/tenant to question the ejectment order, dated 15th July, 1997 passed by learned I-Senior Civil Judge and Rent Controller, Mirpurkhas, allowing Rent Case No, 19 of 1995 directing the appellant/tenant to vacate the premises/shop in question and hand over its peaceful possession to the landlord within four months (120 days) from the date of said order.
2. ' The facts in brief are that appellant was inducted as a tenant by Nasrullah Khan (since deceased) on 1st August, 1993 in respect of Shop No,2, situated near Fateh Masjid, Dholanabad. Mirpurkhas, at a monthly rent of Rs,700 payable on first of each calendar month and an amount of Rs,27,500 was received and acknowledged by the said Nasrullah Khan as deposit to be refunded to the tenant at the time of termination of tenancy and handing over the vacant possession of the shop in question. It is the case of the landlord/respondent Zafarullah Khan who is brother of late Nasrullah Khan that by virtue of a settlement arrived at between the two brothers viz. The applicant and Nasrullah Khan the shop in question became the absolute/exclusive property of the applicant who also became entitled to receive the rent of the same from the opponent/tenant with effect from 1- 6-1995. The opponent/tenant was informed regarding the change of ownership and such notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was sent to the tenant on 11-6-1995 which was served upon him. Since the opponent/tenant failed to pay or tender the rent due with effect from 1-6-1995 onwards and committed wilful default hence the Ejectment Application No,19 of 1995 was filed on 2-10-1995. After the service of the summons opponent/tenant filed his objections/writtenstatement admitting therein that applicant Zafarullah Khan became the landlord of the shop in question which was let out to the opponent tenant by his brother late Nasrullah Khan. Execution of rent agreement was not denied. It was further stated that in view of litigation between the applicant and Nasrullah Khan the opponent/tenant used to deposit the rent in Court every month regularly vide Miscellaneous Rent Application No, 9 of 1994. After the receipt of the notice from the applicant, the opponent approached the applicant for receiving the rent who directed the opponent to deposit the same with his lawyer Mr. Ghulam Muhammad Shad, Advocate. Accordingly the opponent deposited the rent for the months of June, 1995 and July, 1995 with Mr. Ghulam Muhammad Shad who also issued such receipts. However, to be on safe side the opponent also deposited the rent for the said two months in Court. According to the opponent Mr. Ghulam Muhammad Shad refused to accept the rent since August 1995 as according to him he was restrained by the applicant. The opponent claimed that he has been regularly depositing the rent amount in the Court and has not admitted any default in payment of the same. It was also pleaded that the application for ejectment has been filed with mala fide intentions as the applicant/landlord wants to let out the same to someone else in violation of agreement made between the opponent and late Nasrullah Khan. In support of his case the applicant Zafarullah Khan filed his affidavit-inevidence and he was cross-examined. He stated to have informed the opponent/tenant and demanded rent from him. He denied that he had authorised Mr. Ghulam Muhammad Shad to receive rent on his behalf or that Mr. Ghulam Muhammad Shad was his Advocate. Even otherwise, the rent paid to. Mr. Ghulam Muhammad Shad on 7-6-1995 was for the month of May and not for June, 1995. Similarly, rent paid to Mr. Shad on 2-7-1995 was for the month of June, 1995 and not for July, 1995. It was further stated that no rent has been offered or paid to him despite notice under section 18 of the Sindh Rented Premises Ordinance, 1979, issued on 11-6- 1995 which was admittedly received by the opponent/tenant. He denied that the opponent/tenant is depositing the rent regularly and that he is not a defaulter. According to the applicant/landlord the rent deposited, if any, in Miscellaneous Rent Application No, 9 of 1994 in the name of late Nasrullah Khan is not a legal tender and it is a mala fide act. He has produced a copy of Miscellaneous Rent Application No, 9 of 1994. He was cross-examined. He denied to have authorised Mr. Ghulam Muhammad Shad to accept rent on his behalf. He further denied that Mr. Shad remained his Advocate at any time. He further denied that the rent was being regularly deposited by the opponent/tenant. He also stated that he did not know about any default committed by the opponent previously but asserted that since after issue of notice by him intimated the change of ownership, the opponent/tenant is a wilful defaulter.
3. ' In rebuttal opponent/tenant Muhammad Hussain filed his affidavit-inevidence reiterating the same facts as stated in his written-statement/objections. He admitted to be a tenant of the applicant and so also to have ,received notice regarding the change of ownership in favour of the applicant. He claimed to have paid Rs, 25,000 as advance to Nasrulalh Khan at the time of agreement. He further stated that he is not a defaulter and that under the instructions of the applicant he paid rent to Mr. Ghulam Muhammad Shad for the months of June and July and that he has been depositing the monthly rent in Court in Miscellaneous Rent Application No, 9 of 1994.
4. He denied to be a defablter and expressed his willingness to pay rent at enhanced rate or even 'Pugri' amount as per system in .The local market. In his cross-examination he stated to have paid Rs,2,75,000 as advance/deposit to Nasrullah Khan and contradicted the figure of Rs,25,000 as mentioned in his affidavit-inevidence. He showed his ignorance as to when Nasrullah Khan died. He denied that he was not asked to pay the rent to Mr. Ghulam Muhammad Shad or that he offered the rent to the applicant which was refused by him.
5. ' An application was filed on behalf of opponent to summon and examine Mr. Ghulam Muhammad Shad, Advocate, who appeared as a witness. In his examination-inchief he stated about the dispute between late Nasrullah Khan and Zafarullah Khan and subsequent settlement between the brothers. He admitted to have received the rent on behalf of the applicant and to have issued receipts and to have paid the same amount to Waliullah younger brother of applicant. In his cross- examination he stated that he did not remember as for which month rent was due but he issued receipts as per statement of the opponent. He admitted that he never remained as a counsel for the applicant and that he was not authorised by the applicant to receive the rent on his behalf.
6. The learned Rent Controller after sifting the evidence on record came to the conclusion that the opponent/tenant is a wilful defaulter as despite service of the statutory notice as required under section 18 of the Sindh Rented Premises Ordinance, 1979, he has failed to legally tender the rent either directly to the applicant/landlord or in case of alleged refusal or non-availability of the landlord to deposit it in his name. Deposit of rent in the name of previous owner Nasrullah Khan cannot absolve the opponent/tenant from his liability to pay the rent to the new owner/landlord as per law.
7. ' Mr. Muhammad Hashim Memon, learned counsel for the appellant, has mainly argued that the appellant cannot be treated as a wilful defaulter because he firstly paid rent for the months of June and July, 1995 to Mr. Ghulam Muhammad Shad, Advocate and so also started depositing the same in Miscellaneous Rent Application which was pending since 1994. According to the learned counsel intention of the tenant is to be seen and at the most it is a technical default and does not fall within the definition of a wilful default. In support of his contention learned counsel has referred to the case of Abdul Hameed v. Abdul Aziz 1992 MLD 1361. In that case the tenant had established that he was paying rent for the disputed period in the office of Rent Controller, although in the name of previous owner, hence the default, if any was considered to be of technical nature. The facts of that case are distinguishable as there is nothing to show that the deposit in the name of previous owner was being made despite service of notice under section 18 of the Sindh Rented Premises Ordinance 1979. The learned counsel has also cited the case of Muhammad Yusuf and another v. Muhammad Ibrahim Khandwani (PLD 1991 Karachi 220) wherein it was held that deposit in the name of previous landlord did not involve any contumacy and the tenant could not be penalized for default. With due respects this authority is also of no help to the appellant. As per facts of the cited case, after the death of the previous landlord who had expired on 6-3-1982 notice under section 18 of the Sindh Rented Premises Ordinance, 1979, intimating the death and devolution of the property on the appellants was issued on 9-7-1985 which was replied by the tenant on 24-7- 1985 stating therein that the rent of the premises upto August 1985 was already lying deposited in a previous rent proceedings between .Him and the appellant's predecessor-in-interest. He despatched the rent for the month of September 1985 through money order which was refused on 6-10-1985 whereafter Miscellaneous Rent Case No, 3049 of 1985 was filed by him and the rent continued to be deposited in the same and despite the above factual position the default was claimed, which was held as a technical default. In the present case after service of the notice instead of tendering the rent either directly, or through money-order, or by way of deposit in miscellaneous rent case to be filed against the new landlord, the opponent continued to deposit rent in the name of deceased Nasrullah Khan in the micellaneous rent case already filed by him in 1994, hence the default appears to be contumacious in nature and the act of non-deposit of the rent in the name of new landlord cannot be said to be a logical outcome of the previously instituted proceedings. Hence the view expressed in the above referred case is distinguishable. In the next case Major (Recd.) A.S.K. Samad v. Lt. Col. (Rtd.) A. Hussain and another (1987 SCMR 1013) wherein the leave to appeal was granted by the Hon'ble apex Court to examine the plea of the tenant/appellant that he was depositing rent in Court regularly in earlier proceedings between the parties, and thus, there was no failure on his part to deposit rent in Court, and in any case, failure if any was only technical in nature and should not entail penalty of his eviction from demised premises, the facts are once again distinguishable. Firstly, the tenant was depositing the rent in Court regularly in earlier proceedings between parties (under lining is mine), whereas in this case the appellant/tenant has not deposited any rent in the name of the respondents. Secondly, in the above referred case wife of landlord had executed rent-deed with tenant/appellant describing herself as owner of property and the tenant was depositing the rent with the permission of Rent Controller regularly. Though the orders of deposit of rent in subsequent proceedings were not complied with and the eviction order was passed on that account hence the default was considered to be mere technical. Lastly it was argued by the learned counsel for the appellant that arrears of rent can be adjusted against security amount deposited with previous landlord which the present landlord is willing to return to the tenant. Reliance was placed on the case of Nasir Khan and another v. Allahuddin 1992 MLD 2395. This authority is not applicable under the present circumstances of the case.
8. In rebuttal to show that failure on the part of the tenant to deposit the rent in Court in spite of having received notice of change of ownership of property in the name of previous owner amounts to harassm ent to the landlord and it is a contumacious act. The learned counsel for the respondent has placed reliance on the case of Abdul Malik v. Mrs. Qaisar Jehan (1995 SCMR 204).
9. He has also argued with the help of the rule as laid down in the case of Syed Hamid Hussain v. Mst.
10. Humaira Ghias (1986 CLC 1873) that deposit in the name of former landlord could not be held to be a valid deposit absolving the tenant from consequences of ejectment. The learned counsel has also placed reliance on the cases of (i) Saghiruddin v. Muhammad Qasim and six others (1994 MLD 487) (ii) Syed Mehmood Ali v. Bashiruddin Samma (PLD 1996 Karachi 351), (iii) Abdul Jabbar v.
11. Sharafat Khan (1997 MLD 2813) and (iv) Haleema Bai v. Ahmed etc. (1998 MLD 1776) in support of his contention that it is a case of wilful default. '
12. I have given due consideration to the facts of the case and the case law cited at the bar. In this case relationship of landlord and tenant between the parties is not disputed. Service of notice under section 18 of the Sindh Rented Premises Ordinance, 1979, has also not been controverted by the appellant/tenant. There is nothing on record to show that after receipt of the notice the tenant offered the rent to the new landlord and in case of refusal, adopted recourse to the procedure as prescribed by the law. Neither the rent was sent through money-order nor any fresh miscellaneous rent application was filed arraying the new landlord as opponent and seeking permission to deposit the rent in view of his alleged refusal. Deposit of rent in the name of a deceased person is itself a contumacious act as to how the respondent/landlord shall be in a position to withdraw an amount which has been deposited in the name of a deceased person. Payment of rent for two months to Mr. Ghulam Muhammad Shad, Advocate, without any authority from the landlord is also of no help to the appellant. More particularly when Mr. Ghulam Muhammad Shad who was summoned by the appellant as a witness has himself stated that he was not authorised by Zafarullah Khan to accept any rent on his behalf. Under the circumstances I see no force in this appeal which is dismissed with costs. The appellant is granted three months (90 days) time to vacate the shop and hand over its peaceful vacant possession to the respondent/landlord.