2007 PLP 420 (YLR)

AMIR HANI MUSLIM, J.

This Constitutional petition has been preferred by the petitioner against respondent No.1, inter alia, on the ground that both the Courts below were in error in passing the impugned orders of ejectment against the petitioner.

2. The facts, as they appear from the pleadings of the parties, are that the petitioner was the tenant of Amjad Ali and Mrs. Farhat Saeed since 23-10-1982.The previous owners sold the property in June, 1995 to respondent No.1. This fact was notified by the previous owner Amjad Ali to the petitioner in June, 1995.

3. According to the learned counsel for the petitioner, the petitioner initially sent the rent through money order to Saleem Motiwala, who happens to be the director of respondent No.1, for the month of July and August, 1995 at the rate of Rs.1,000 per month. According to the learned counsel, the rent for the month of June, 1995 was paid by the petitioner to Amjad Ali whereafter on acquiring knowledge that the property has changed hands, he sent the rent through money order in the joint name of Saleem Motiwala and Amjad Ali. However, this rent was refused, as a result the petitioner claims to have started depositing it in the Court in M.R.C. No.500 of 1995 in the joint name of Saleem Motiwala and Amjad Ali. Since then the petitioner is depositing the rent till date in the said M.R.C.

4. The respondent No.1 tiled ejectment application after giving notice dated 11-1-2001 under section 18 of the Sindh Rented Premises Ordinance, 1979 intimating the petitioner that respondent No.1 has acquired proprietary rights in the property in dispute. The record further reveals that the respondent No.1 filed ejectment application against the petitioner on 26-1-2001 i.e. 14/15 days after the issuance of notice under section 18 of S.R.P.O. 1979. In the ejectment application it has been pleaded that the petitioner failed to pay the rent to the respondent No.1 since June, 1995 and it was further pleaded that the petitioner is habitual defaulter in the payment of rent. This ejectment application was filed by respondent No.1 which is a private limited company and not by Saleem Motiwala. The written statement was filed by the petitioner in which relationship of landlord and tenant between respondent No.1 and the petitioner was not denied. It was further pleaded that the petitioner was depositing the rent in the M.R.C. No.500 of 1995 in the joint names of Saleem Motiwala and Amjad Ali. The learned trial Court after recording the evidence, allowed the ejectment application on the ground that the default was admitted by the petitioner by not depositing the rent in the name of respondent No.1 despite the knowledge that respondent No.1 had acquired the property and the petitioner continued depositing the rent in the joint name of Saleem Motiwala and the previous owner, Amjad Ali for which no plausible defence was offered by the petitioner.

5. This order of ejectment was challenged in appeal by the petitioner, however the Appellate Court affirmed the findings of the Rent Controller and dismissed the appeal against which present petition has been filed.

6. It has been contended by the learned counsel for the petitioner that both the Courts below erred in law in holding that the petitioner has committed default. The 'learned counsel has submitted that it was not a default simplicitor but it was a technical default and the petitioner kept on depositing the rent in the Court in M.R.C. in the name of previous owner as well as Saleem Motiwala who is the director of respondent No.1. He has relied upon the case of Harjibhai Behrana Dar-e-Meher reported in 2001 SCMR 1888 in which the Honourable Supreme Court held that refusal and/or avoidance to receive the rent by the landlord will not give a cause to the landlord to file ejectment proceedings. He has also relied upon the case of Mehboob Jewellers and others v. Nur Ahmed reported in 1989 SCMR 1327. The cases relied upon by the learned counsel for the petitioner are distinguishable on facts inasmuch as the tenant in the aforesaid cases did not have the knowledge of change of ownership at the time when he deposited the rent in the name of previous landlord. The learned counsel next contended that the ejectment case filed by respondent No.1 was premature as after the issuance of notice dated 11-1-2001 under section 18 of S.R.P. Ordinance, 1979, respondent No.1 filed ejectment case on 26-1-2001 without waiting for a month and according to him, the ejectment application was filed against the language of section

18. According to the learned counsel, section 18 required the new owner to wait for one month and thereafter proceed to file the ejectment application if the tenant fails to make the payment.

7. Conversely, the learned counsel for the respondent No.1 had argued that the petitioner had committed wilful default. He has relied upon the cases of Abdul Malik v. Mrs. Qaiser Jehan reported in 1995 SCMR 204 and Fazal Elahi v. Gul Khan Ahmed Qureshi reported in 1997 SCMR 945 wherein it was held that the deposit of rent in the joint names of new and the previous owner amounts to harassment once the tenant has acquired the knowledge that the previous landlord has sold the interest in the property. Learned counsel for respondent No.1 has further relied upon the case of Muhammad Yousuf v. Mehraj-ud-Din reported in 1986 SCMR 751 wherein the Honourable Supreme Court has held that filing of ejectment application itself is a notice under section 18 of the S.R.P. Ordinance, 1979 and the tenant should start depositing the rent in the name of new owner who has filed the ejectment case. The learned counsel for respondent No.1 has also relied upon the case of Mobin Fatima v. Muhammad Yamin reported in PLD 2006 SC 214 at page 218 wherein it was held that even if different conclusion is possible, the High Court should not accept it while exercising constitutional jurisdiction. The learned counsel for respondent No.1 has submitted that the petitioner fully knew that the property has changed the hands and after receiving notice under section 18 of the Sindh Rented Premises Ordinance, 1979, he continued depositing the rent in M.R.C. in the joint names of Saleem Motiwala and the previous owner. He further submitted that even after filing of ejectment application, the petitioner did not change his conduct which is contumacious on his part as has been held by the honourable Supreme Court in the above-cited case. He submitted that in the face of findings of the Courts below, this Court would not interfere in the impugned orders in exercise of its constitutional jurisdiction.

8. I have heard the learned counsel for the parties and have perused the material available on the record. It seems that when the petitioner acquired the knowledge that the property has changed the hands in June, 1995, he has started depositing the rent in M.R.C. No.500 of 1995 in the joint names of the previous landlord and Saleem Motiwala, director of respondent No.1 after the refusal of the money order. The petitioner claims that he has not been served with the notice under section 18 of the S.R.P.O. 1979. What is most strange, is that once the petitioner was served with the notice of the ejectment application and he did not dispute the relationship of landlord and tenant between respondent No.1 and himself, he did not care to deposit the rent either in Court in the said ejectment proceedings or in M.R.C. by changing the names of the parties. There is no plausible explanation offered by the petitioner as to why he continued depositing rent in M.R.C. No.500 of 1995 in spite of the fact that the petitioner never denied the relationship of landlord and tenant with the respondent No.1. The issue as to whether the default - was technical or otherwise, has been elaborately dilated by the Honourable Supreme Court in the cases reported in 1995 SCMR 204 and 1997 SCMR 945 supra. Both the said judgments of the Honourable Supreme Court are applicable to the case in hand and, therefore, I am of the considered view that the deposit of rent by the petitioner in the M.R.C. after acquiring the knowledge of change of ownership, was unwarranted until leads to wilful default.

9. So far as the contention of the learned counsel for the petitioner that the ejectment application should have been filed after the lapse of one Month of the issuance of notice under section 18 of the S.R.P.O. 1979 is concerned, with profound respect to the learned counsel for the petitioner, once the learned counsel has taken the stand that the petitioner was never served with notice under section 18, he cannot bank upon his case on the language of section 18 as argued by him. Moreover, once ejectment application was filed, it was a notice of change of ownership as has been held by the Honourable Supreme Court and, therefore, it was incumbent upon the petitioner to start depositing the rent in the name of respondent No.1 which was never done. The learned counsel for respondent No.1 has relied upon the cases of Nasim Ahmad Khan v. Niaz Akhtar reported in 1988 SCMR 1619 and L. Hussain v. Muhammad Nawab reported in PLD 1992 Karachi 307 in support of his contention that ejectment application can be filed after lapse of years. There is no restriction for the landlord to file the ejectment application after a lapse of a few years. It is the choice of the landlord to file ejectment proceedings C at any time and this lapse would not debar the landlord to seek ejectment on the ground of default. For the aforesaid reasons, I do not find any infirmity in the impugned orders passed by the Courts below which could warrant interference by this Court in exercise of constitutional jurisdiction. This petition is accordingly dismissed in limine along with listed application. Record and proceedings be sent back forthwith. H.B.T./M-178/K Petition dismissed.