AMANULLAH Versus MUHAMMAD ANWAR

1. Both these appeals will be disposed of by this judgment as the facts and questions of law are common. The premises in dispute was owned by Muhammad Usman (Usto Muhammad) which was purchased by the respondent by a registered sale-deed, dated 29-11-1978. Usman died on 13-7-1979 and the respondents served a notice, dated 29-8-1979 under section 13-A of the West Pakistan Urban Rent Restriction Ordinance. This notice was served on 9-9-1979 but the appellant did not tender rent to the respondent and, therefore, ejectment application was filed against him. The property owned by Muhammad Usman is in dispute between the respondent and the legal heirs in consequence of which they have filed a suit for cancellation of the sale-deed. The appellant denied the relationship of landlord and tenant and further pleaded that he is depositing rent from 1-4-1978 upto date in R. C. No. 2814/78. The learned Controller held that the respondent is the landlord and after service of notice under section 13-A, West Pakistan Urban Rent Restriction Ordinance the rent was not tendered to him and ordered for ejectment.

2. From the evidence on record it is fully established that Muhammad Usman was the owner and the landlord. There is a registered sale-deed in favour of the respondent, dated 29-11-1978 and that Usman died on 3-7-1979. The notice under section 13-A was served on 9-9-1979 and the appellant started depositing rent with the Rent Controller immediately. The respondent has also admitted that after the sale-deed was registered the rent was being collected by Muhammad Usman and not by the respondent. From these facts, it is clear that even after sale of the property the respondent did not notify or exercise his right to claim the rent. There seems to be a serious controversy between the legal heirs of Muhammad Usman and the respondent who have challenged the sale-deed. In this state of affairs when two persons were claiming title to the property and the respondent did not serve any notice immediately after registration of sale-deed or realise rent, it is to be considered whether the conduct of the appellant was such which may render him as a defaulter. It is correct that the appellanil has not paid the rent to the respondent within 30 days from the service of the notice under section 13-A but it is also clear that thel rent was deposited in Court and there is nothing to show that he has made any default in that respect. In this state of affairs when the title of the respondent is disputed by the legal heirs of Usman the approach and conduct of the appellant was reasonable and bona fide in depositing the rent in Court. The non-payment of rent to the respondent directlyA may amount to a technical default but in the facts and the circumstances of the case discretion should be exercised in favour of the appellant. The learned counsel for the respondent contended that as the deposii in Court was made in the name of Usman it cannot be treated as valid tender. From the facts it is clear that there were serious disputes between the respondent and the legal heirs of Usman. The respondent having purchased the property did not notify the appellant nor realised rent from him. In these circumstances when demand was made, the appellant immediately deposited rent in Court. It is correct that the respondent's rent has been deposited in the name of the previous landlord but in the circumstances it does not discredit the bona fide of the appellant. The appella.nt, therefore, cannot be termed as a defaulter. The impugned order of the learned Controller is set aside and the appeal is allowed.

3. H. B. T. Appeal allowed