1989 PLP 287 (CLC)

Sadruddin Huda for Appellant. Manoharlal for Respondent. Date of hearing: 26th September, 1988 This is an appeal challenging the order passed by the Rent Controller, whereby, the application of the present respondent filed for ejectment was allowed on the ground of default in payment of rent. The facts of the appellant s case are that the respondent and his brother Muhammad Gulzar were co‑owners and landlords of the building situated on Plot No. M.R.7/57, Adamjee Dawood Road, Market Quarters, Karachi, and that the present appellant is the tenant in a portion of ground floor on the monthly rent of Rs.1,

300. The co‑owner Muhammad Gulzar is said to have died issueless on 10‑2‑1975, and that there is a dispute among the heirs of deceased Muhammad Gulzar, as the City Deputy Collector has deleted their names from the record of rights. It is also asserted that the opponent/ tenants have paid 50$ of rent in advance upto 31‑1‑1978 and the balance of Rs.650 per month was being paid to the applicant as per the lease agreement and that they have failed to pay the said 50 per cent of rent since 1‑2‑1975, which they are alleged to be depositing in a current joint account which as a result of the death of said Muhammad Gulzar has become inoperatable and such intimation was also sent by the applicant to the tenant bank. The ground of personal bona fides requirement was also taken. The opponent bank in their written statement has challenged the maintainability of the ejectment application for non‑joinder of necessary party and on the ground that the applicant has no locus stand! to file the said case. It is also claimed that the application is hit by section 13‑A of the West Pakistan Urban Rent Restriction Ordinance, 1959. As regards the facts the opponent has stated that after the death of co‑owner Muhammad Gulzar the applicant is not entitled to receive 50 per cent rent while they also admit that he is owner of 50 per cent share in the disputed premises. It is their case that the rent was being deposited in the joint account in the United Bank Limited, Adamjee Road Branch, Karachi and that the Manager of the Branch had written to the applicant a letter to the effect that he was not the sole owner and therefore, he was not entitled to collect the rent and thus there is no question of default. The Advocate of the Bank also called upon the applicant to settle the dispute with other co‑owners and provide the list of legal representatives of late Muhammad Gulzar and that on the failure of the applicant to reply to the above letter the Bank deposited the rent in Court in Misc. Rent Case No.3489/1978. The ground of personal requirement was also denied. The applicant filed his own affidavit. He was cross‑examined, while the principal officer and attorney of the opponent, Mohammad Iqbal Asar, filed his affidavit in evidence and closed his side. Documents were also brought on record. That the trial Court holding that the opponent bank had committed default in terms of provisions of Sind Rented Premises Ordinance, 1979, ordered that the application be allowed and the opponent to hand over vacant possession of the premises within three months of the order. While dealing with they issue of applicant s requirement for personal use, it was held that he did not so require the premises. I have heard the Advocates for the parties. The Advocate for the appellant Bank has contested the matter only on the issue of default. The contentions raised by the appellant‑Bank are two‑folds, firstly, that no default has been committed and secondly if there is any default the same is only a technical default and, therefore, the discretion should be exercised in favour of the tenant. Before taking up the arguments of the advocates, I would mention certain admitted facts first. It is admitted by the parties that 50 per cent rent was paid in advance to the landlord which covered a period upto 31‑1‑1978 and that the remaining 50 per cent of rent was being deposited in joint account. The contention of the respondent /applicant is that after the death of his brother Muhammad Gulzar on 10‑2‑1975, the said joint account became inoperatable and any amount deposited in the said account will not be held to be rent tendered under the provisions of Sind Rented Premises Ordinance. Whereas, the Advocate for the appellant has vehemently argued that by depositing this money in the joint account, he has tendered the rent as required under law as he has fulfilled his obligation by parting with the money which he had to pay. In this respect it would be pertinent to reproduce the provisions of section 10 of the Sind Rented Premises Ordinance, which are as under:

10. Payment of rent: (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate. (4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: Provided that nothing contained in this section shall apply in the case pending before the Controllers on the commencement of this Ordinance. From the above, it is clear that there are three modes of payment of rent to the landlord, firstly, rent should be paid directly to the landlord, secondly, in case of refusal or avoidance on the part of landlord, the rent can be sent through postal money order or thirdly, the same can be deposited with the Controller within whose jurisdiction the premises are situate. It may be seen that the said provision does not provide for depositing of rent in joint account in bank and as such it would fall outside the scope of above-said section

10. The counsel for the appellant has argued that this is a case of peculiar nature and he has drawn my attention to a letter written by Taj Begum widow of Muhammad Gulzar which is produced before the Controller. The said letter is written to the Manager of the Bank to the effect that she is entitled to collect 25 per cent of the rent being the. widow of the co‑owner and that the Bank should stop full payment of rent to the present respondent and if they do so it will be at their own risk and costs. Even from this letter it is clear that she has not disputed the 50 per cent share of the applicant Ehsan Ellahi nor she has given instructions to continue the deposit of rent in joint account. This joint account on the death of Muhammad Gulzar on 10‑2‑1975 becomes inoperatable and any money paid in the account cannot be said to be tendered to the landlord as obviously he is not able to withdraw the same. The practice and procedure in such cases is that as said by the witness Muhammad Iqbal giving evidence on behalf of the present appellant. He in his cross‑examination said, it is correct that on the death of one of the account‑holder a separate miscellaneous account is to be opened for deposit of any amount. It is correct that intimation is always given to surviving account‑holder about miscellaneous account. I do not know whether a Misc: account was opened on receiving intimation of death of Muhammad Gulzar. From the above admission in the cross‑examination, it is clear that the rent amount if it had to be deposited in bank, a separate miscellaneous account had to be C opened which in the instant case was not done. No statement of account has been produced by the bank to show that any payment in any account was made by the bank for the period 10‑2‑1975 onwards, that is, from the date of the death of Muhammad Gulzar. It is also admitted position that 50 per cent amount of rent that was paid in advance covered the period expiring on 31‑1‑1978 and that thereafter no payment was made till 1‑8‑1978, the date on which the rent was deposited in Court by the appellant‑Bank in rent deposit case No.3489/1978. This leaves the period from 1‑2‑1978 to 31‑7‑1978, that is, six months during which, no payment was made. Even otherwise D this would show that the appellant‑Bank was conscious that they could pay the rent only by the modes provided in section 10 of the Sind Rented Premises Ordinance, and which included the mode of deposit of rent in Court and not by depositing the amount in the bank account, which was inoperatable. This rent deposit case filed by the appellant‑Bank is subsequent to the filing of the rent application of the present respondent. The appellant‑Bank has also not explained as to why they did not deposit the rent in Court on receiving the intimation of the death of said Muhammad Gulzar and the dispute between the legal representatives of the deceased and the other co‑owner. This intimation was received by the bank on 26‑7‑1975 through the letter of the widow of Muhammad Gulzar as is admitted by their witness Muhammad Iqbal Asar in his cross‑examination. It is obvious that they slept over the matter and it was only when the present application for ejectment was filed that the appellant bank moved the Hon ble Court and deposited the rent in Court. Mr. Sadruddin Huda, Advocate, appearing for the appellant has relied on the case of Inaystullah v. Zahooruddin 1987 S C M R 1313. With respects I would say that the facts of the above case are different from the one in hand. In the said case the tenant has sent the rent through money order and the same was returned and refused as unpaid which showed that the landlord was himself creating difficulties for the tenant. Mr. Huda has also cited the cases of Hassan Khan v. Munawar Begum P L D 1976 Kar. 832 and Muhammad Yousaf v. Abdullah P L D 1980 SC

298. The facts of these cases are also different from the present case and respectfully I will say that they will not be applicable. For the above reasons I cannot accept the contentions of the Advocate for the appellant that no wilful default has been committed on the part of the appellant‑Bank and I see no reason to interfere E with the order and the findings of the Rent Controller on this point. Mr. Manoharlal, Advocate, appearing for the respondent has then taken up the issue of requirement for personal use, the issue which was answered against the landlord /respondent. The respondent in the present appeal has filed the cross objections which were dismissed for non‑prosecution on 19‑5‑1985. He has, however, relied on the case of Ismail v. Mst. Sher Bano through Her Legal Heirs 1988 SCMR

772. I will therefore, proceed to consider this issue also. However; there is no material on record except for the simple oral assertion made by the respondent /landlord in his affidavit in evidence, wherein he has said in paragraph 6, that the premises in question was/is required in good faith for bona fide personal use . No further evidence has been brought on record to substantiate the above-said claim of the respondent /landlord. The present premises is commercial premises and it was incumbent upon the respondent /landlord to show as to how and for what purpose and for whose use these premises were required by him. In view of above I uphold the findings of the Rent Controller on this issue. However, as I have held that the appellant /tenant had committed wilful default, there is no substance in this appeal, which is dismissed with costs. H.B.T./U‑41/K Appeal dismissed.