1995SCMR204 (PLP)

SALEEM AKHTAR, J.

This appeal is directed against the judgment of the learned Judge in Chambers of the High Court whereby the appeal of the respondent against the order passed by the learned Controller rejecting her application for ejectment was allowed and the appellant was ordered to be ejected.

2. The dispute relates to ground floor premises on Plot No. 4, row No.15, Block II; Nazimabad, Karachi, of which the appellant was tenant of one Haji Muhammad Bashir. On 23-4-1988 Mrs. Qaisar Jehan respondent served a notice under section 18 of the Sindh Rented Premiss Ordinance, 1979 (hereinafter called the Ordinance) on the appellant informing him that the property in dispute had been gifted by Haji Muhammad Bashir to Muhammad Ziauddin and Muhammad Merajuddin sons of Muhammad Shafiuddin on 24-10-1982 under a registered deed. It was further stated that the same property was again gifted by these two persons to her (respondent) under an oral gift dated 22-7-1987 confirmed by a registered deed dated 30-7-1987. The appellant was called upon to pay monthly rent to her. Alongwith the notice the declaration of gift was also supplied to the appellant. It seems that the appellant did not pay the rent to her and therefore she filed an application for ejectment on ground of default in payment of rent from May 1988 till August 1988. In defence the appellant pleaded that he had paid rent to Haji Muhammad Bashir up to September 1982 who used to collect it from him, but thereafter as he did not turn up he started depositing rent in miscellaneous Rent Case No. 4618/1982 where rent up to April 1988 has been deposited. It was pleaded that in November 1982 Muhammad Ziauddin and Muhammad Merajuddin claimed to be the owners on the basis of gift dated 24-10-1982, but no notice was served. The appellant apprehending forcible eviction filed Suit No. 360/1983 (renumbered 479/1985) for declaration and injunction against them. Thereafter on 23-4-1988 the appellant received notice from the 'respondent claiming ownership of the premises by virtue of the gift deed dated 30-7-1987, but instead of paying rent to her he started depositing rent in 'Miscellaneous Rent Case No. 444/1988 in the Court-of 6th Senior Civil Judge and Rent Controller in the names of Haji Muhammad Bashir, Muhammad Ziauddin, Muhammad Merajuddin and Mrs. Qaisar Jehan from the month of May 1988 and continued depositing it regularly there. The learned Controller held that there was a technical default and therefore dismissed the ejectment application. In appeal filed by the respondent the order of the Controller was set aside with the following observation:-- "By filing her affidavit and producing copy of the gift deed in her favour, Mst. Qaisar Jehan brought on record sufficient evidence for the purposes of the rent case to show that she was landlady for the purposes of proceedings under the Ordinance. In case Abdul Malik wanted to challenge her title in the property in litigation he should have moved a Civil Court for this purpose as observed in the case of Bashir Ahmad (1983 SCMR 302). The Rent Controller is not empowered to go behind a gift showing title and to question its validity and legal effect. In the circumstances of this case the relationship of landlord and tenant between the parties was established and such relationship was created on the day the property in litigation was gifted in favour of Mrs. Qaisar Jehan. Since Abdul Malik failed to pay rent to the landlady in terms of section 10(2) and section 18 of the Ordinance, he was defaulter in payment of rent and was liable to be ejected from the premises in litigation:"

3. Leave was granted to consider whether the learned Judge in Chamber was justified in reversing the finding of the learned Rent Controller. Mr. M.G. Dastgir, learned counsel for the appellant contended that as the rent was deposited in Court in terms of section 10(3) of the Ordinance and having' parted with the money, there was no default and alternatively if at all there was any default it was technical in nature and ejectment ought not to have been granted. 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.

4. If the appellant would have deposited the rent in the name of the respondent alone, perhaps the degree of contumacious conduct would have been sufficiently decreased, but he deposited rent in the names of all the four persons, namely, Haji Muhammad Bashir, Muhammad Ziauddin, Muhammad Merajuddin and Mrs. Qaisar Jehan. This would have caused harassment to the respondent. From the application under, section 10(3) of the Ordinance it is clear that the appellant did not state that the respondent had refused to accept rent or is avoiding to accept the same. Instead, he challenged the very gift deed by alleging that Haji Muhammad Bashir was an Indian national and could not have transferred the property in the names of Ziauddin and Merajuddin and therefore the gift in favour of the respondent was also illegal and she was not entitled to recover rent. This shows the conduct of the appellant in depositing the rent which was contumacious and intentionally plea was taken to cause harassment to the respondent. In such circumstances he cannot be allowed to take benefit of saying that it was a technical default. We therefore dismiss the appeal. The appellant shall hand over vacant and peaceful possession of the premises to the respondent on or before the expiry of four months provided he continues to pay the rent to the respondent. If the appellant fails to hand over vacant possession to the respondent immediately on expiry of four months, writ of ejectment shall be issued without notice: AA./A-1171/S Appeal dismissed.