' The facts of this case are that Dr. Zubeda Hamid Ali Khan, the owner of Flat No.3 in the building known as "Naz Mansion" built on Plot No.115-B in Sindh Muslim Cooperative, Housing Society Karachi (hereinafter called as "the Flat"), had let out the same to Muhammad Talha, the respondent No.2, (hereafter to be referred to as "the tenant"). 011,30-4-1996 Dr. Zubeda Hamid Ali Khan, the owner of the Naz Mansion gave entire Naz Mansion in trust namely "Dr. Zubeda Hamid Ali Khan Trust".
Beneficiaries thereof were her three daughters namely Mst. Shahnaz, Mst. Nazmeen and Mst. Amal.
She, however, revoked the trust with the consent of the beneficiaries by executing such deed under section 78 of the Trust Act on 12-3-1981. By the same deed she gifted the building i.e. Naz Mansion including the flat to her abovenamed three daughters.
2. On 29-10-1993, Dr. Zubeda Hamid Ali Khan expired. After her demise there had been a family settlement amongst her legal heirs in respect of the property. In the result thereof entire Naz Mansion including the flat was given to her two sons namely Muhammad Ali and Abbas Ali.
Accordingly, the mutation was also effected in their favour in the record of Sindh Muslim Cooperative Housing Society Karachi. The new owners/the petitioners claim to have sent intimation of the change of ownership in respect of the flat to the tenant on 16-12-1993 and 18-8-1994 under postal certificate. Since no rent was paid to them and they (Muhammad Ali and Abbas Ali) filed rent case No.43 of 1995 for ejectment of tenant Muhammad Talha alleging him to have defaulted in payment of rent and sublet the flat to some other persons.
3. The tenant resisted the rent case and filed written statement denying therein both of the allegations. He pleaded that the flat was property of trust and he was depositing the rent in the name of the trust. He also denied to have received any intimation about transfer of ownership in favour of the petitioners/applicants.
4. The learned Rent Controller, after recording the evidence, directed the ejectment of tenant accepting both of the grounds taken in the rent case. The appeal filed by the tenant was accepted by the learned District Judge Karachi (E) vide judgment dated 3-8-2002. That judgment has been assailed through present Constitutional petition.
5. It has been argued on behalf of the petitioners that the decision given by the Rent Controller was perfectly in accordance with law and the learned District Judge reversed it wrongly ignoring the settled principles of law relating to the intimation of the change of the ownership and the responsibility of the tenant to pay the rent under section 18 SRPO 1979. Continuing with his submission the learned counsel contended that if the service of notice under section 18 SRPO 1979 through post was not proved then the institution of the rent case was the notice about the change of ownership to the respondent No.2/tenant but he declined to pay the rent to the new owner/petitioner which is nothing but a deliberate .Default in payment of rent. He further contended that the learned Appellate Court treated the default non-consequential reversing the finding of the Rent Controller arbitrarily by introducing, at its own, the ground that on account of very complicated history in the ' affidavit-in-evidence of petitioner No.1 (Muhammad Ali) about their becoming the owners of the flat the respondent No.2/the tenant, was justified in depositing the rent in the name of trust instead of tendering the same to the new owners.
According to the ' learned Advocate, the learned Appellate Court should not have traveled to such an extent and introduced defence which was. Never pleaded specifically by the respondent No.2/the tenant. The learned Advocate submitted further that even otherwise the tenant/respondent No.2 could not raise such a plea for absolving him of the statutory responsibility of paying the rent to the new owner as required by section 18 SRPO 1979.
6. Addressing the issue of subletting learned Advocate for the petitioners simply contended that it has come in the evidence that respondent Talha,. The tenant was out of country which fact by itself proves that he had inducted some other person in the flat, therefore the allegation of subletting was established and the learned District Judge had wrongly reversed.
7. Learned Advocate for the respondent No.2 defended the decision of the learned Appellate Court arguing that in fact the flat was still property of Dr. Zubeda Hamid Ali Khan Trust and the respondent had committed no default by depdsiting the rent in favour of the trust even after the institution of the rent case. According to him, the trust created by Dr. Zubeda could not be revoked, therefore, the revocation deed, if any, was void.
8. In the alternative, learned counsel for the respondent No.2 contended that if this Court comes to the conclusion that the 'trust had been revoked and the petitioners had become owners of the flat then also the learned Appellate Court had rightly held that their claim that the flat had devolved upon them on demise of their mother was incorrect and also the confusing history of getting the ownership was sufficient justification for the respondent to continue depositing the rent in the name of trust. He further contended that even otherwise the continuous and regular deposit of rent by the tenant/respondent in the name of :previous owner instead of the petitioners Was a technical default, which does not warrant the extreme penalty of eviction. In Support of his contention learned counsel referred to the case of Major (Rtd.) A.S.K. Samad v. Lt. Col. (Rtd.) A.
Hussain and another 1987 SCM R 1013.
9. The learned Advocate appearing for the respondents Nos.1 and 3 did not support the decision of Appellate Court on the point. Of default. She, however, defended the conclusions on the issue of subletting. She argued that the default in present case cannot be treated as technical one for the simple reason that the respondent/tenant is still not accepting the petitioners as landlord entitled to the rent of the flat.
10. I will first address the issue of subletting. Although M. Talha, the tenant, is admittedly out of country but that fact by itself would not establish the issue of subletting. The learned Appellate Court has rightly considered the fact of the presence of tenant's father Alhaj M. Yousif Jan in the flat at the time of recording his evidence on commission and the fact that (tenant's) daughter Sumiyya M. Talha had been studying in Gulistan School situate in Sindh Muslim Cooperative Housing Society before 1997.
Also the allegation of subletting was vague for the reason that the petitioners simply alleged that the flat had been sublet to some other person without giving particulars of that so-called person.
Thus the conclusion drawn by the Appellate Court on the issue of subletting is unexceptionable.
11. However, on the finding relating to the default the arguments of petitioner's learned Advocate have substance in them. No doubt the service of notice under section 18 SRPO 1979 upon the tenant/respondent No.2 was denied by him and the petitioner failed to prove it through satisfactory evidence, however, the institution of rent case itself was surely a notice of transfer of the ownership. On getting the notice of the rent case the respondent is legally deemed to have got notice of the transfer of the ownership in favour of the petitioners/applicants. After that the tenant/respondent No.2 was required to pay the rent to the owner within 30 days of the receipt of the notice which was the statutory requirement under section 18 SRPO 1979. But admittedly, neither paid the rent to the petitioners nor deposited the same in their favour.
' Cooperative Housing Society. Simple word that the flat is still trust property reflects the unfair attitude of the respondent/tenant. In fact the present case is not that of continuity in depositing the rent in the name of previous owner only. Here the petitioner's ownership and their right of receiving the rent are being denied on the incorrect rather false ground that the flat is still the property of trust. Thus present is the clear case of refusal to pay the rent to the petitioners and as such the deposit of rent in the name of trust instead of the petitioners is not mere a technical default. It is the wilful default. The technical default was interpreted by the Honourable Supreme Court in the case of Pakistan State Oil Ltd. (supra) which reads as under:- "Most liberal interpretation that could be given to the word `technical' covered only such defaults which were unavoidable or were due to cause for which the defaulter was in no way responsible."
13. In view of the above interpretation refusal on the part of respondent No.2/the tenant to accept the petitioners as owners of the flat and pay rent to them cannot be treated as technical default. It is a calculated act and as such a deliberate and willful default.
12. The plea that the flat is still the property of trust is completely devoid of substance. The respondent No.1 did not challenge the legality of the revocation deed executed under section 78 of Trust Act. The deed had been acted upon. After the revocation of trust, the same property was gifted by Dr. Zubeda to her three daughters who, in family settlement, gave it to the petitioners.
Mutation was also effected in their favour in the record 01 Smdli Muslim
14. The reasoning in the appellate judgment about confusion and complication in respect of the petitioner's. Ownership needs no discussion as neither the respondent No.2/tenant pleaded it nor the same was valid.
15. The pronouncement referred to by the learned Advocate for the respondent No.2 do not relate to the cases of refusal to acknowledge the respective applicants as the landlords. They, therefore, are not helpful to him.
16. Thus the denial on the part of the respondent/tenant to pay the rent to the petitioner or deposit the same in their name is a wilful default warranting their ejectment from the flat. The judgment of the learned Appellate Court relating to the question of default is not legal and as such not sustainable. The same stands set aside to that extent. Consequently, the judgment of the Rent Controller is maintained except the finding on the issue of subletting. With this order the petition is accepted.