MUHAMMAD SOHAIL Versus Dr. SAEED AHMAD
1. Doctor Saeed Ahmed filed Rent Application No. 4519 of 1981, under section 15 of Sind Rented Premises Ordinance, 1979, against appellant, M. Sohail/tenant on the ground of default in payment of rent from February, 1981 to September, 1981. The Rent Controller allowed the rent application and directed the appellant to hand over the possession within two months. Being aggrieved the appellant has filed this appeal.
2. Facts are that Imran Fatima was landlady of House No. 379, situated in Block No. 15, federal `B' Area, Karachi, and appellant is a tenant on monthly rent of Rs. 306 exclusive of electricity charges. Mst. Imran Fatima died on 24th February, 1981, and according to rent application she left behind Dr. Saeed Ahmad, Mst. Siddiqa Khatoon and Mst. Khurshid Fatima-as legal heirs. Dr. Saeed Ahmad is a son of deceased Imran Fatima while other two ladies are her daughters. After the death of Imran Fatima, a notice dated 2-5-1981, was sent through Advocate to the appellant about the death of Imran Fatima and he was asked to pay the rent. This notice was probably sent under section 18 of Sind Rented Premises Ordinance, 1979. The appellant failed to tender the rent on the ground that Dr. Saeed Ahmad,was not the only legal heir of deceased Imran Fatima. Once again Dr. Saeed on 30-6-1981; sent another notice to the appellant in which he asked that two lady co-sharers, Mst. Siadiqa Khatoon and Mst. Khurshid have relinquished the property in favour of Dr. Saced and executed such Registered Deed on 28-6-1981, therefore, he should tender the rent to Dr. Saeed from February, 1981. After this notice, appellant by a letter dated 23-8-1981, informed the respondent that appellant is anxious to pay the rent but he advised and asked him- to either obtain Power of Attorney from others or Succession Certificate so that there should be no inconvenience and complications in future. It is also stated in the same letter (Ex. `E') that on the basis of information contained in the letter a cross-cheque of Rs. 2,142 was sent being the entire rent amount from March, 1981 to 31st August, 1981, and it is stated that cheque be passed on to Dr. Saeed against valid acknowledgment. This letter was also replied by the Advocate, Mr. Muhammad Usman on 22-9-1981 (Annexure `F'). The evidence of the parties was taken and finally the Rent Controller came to the conclusion that default has been committed.
3. I have heard Mr. Asghar Hussain for the appellant. It is contended by the learned Counsel that appellant was anxious to pay the rent after the death of Mst. Imran Fatima, but there is a dispute between the heirs therefore, he wanted to pay the rent to the proper party. It is also argued that as soon as he received the second notice dated. 30-6-1981, he went to the office of Mr. Muhammad Usman and tendered a cheque which he received on behalf of the respondent and subsequently returned and appellant started the rent in Miscellaneous Rent Application: Therefore, the default is not wilful one. Mr. Muhammad Usman appearing for the respondent submitted that appellant has not paid the rent on receipt of the first notice as well on second notice in time. It is contended that the being as an Advocate has no authority to receive the Cheque but in good faiths he got the Cheque and offered to Respondent who refused; therefore, he returned the Cheque to the appellant. It is argued that it was for the appellant to tender the rent as soon as he got the notice about the change of ownership of property.
4. The default is admitted and there is no dispute about the relationship and rate of rent between the parties. The only point to be considered in this appeal is whether compliance of section 18 of Sind Rented Premises Ordinance 1979, has been made by the appellant. In notice dated 2-5-1981, the appellant was asked to pay the rent to his clients namely Dr. Saeed Ahmad, Siddiqa Khatoon and Mst. Khurshid Fatima. The question of payment of rent proportionately could only be determined on the basis of some evidence as legal heirs were entitled to receive the rent when they became owner by way of inheritance. The appellant was very vigilant and has been trying to see as to how and what amount proportionately the rent is to be tendered to the new landlords. He had no other document available excepting the notice of the learned counsel. It appears that there was a dispute between the parties and only on 28-6-1981, two sisters of Dr. Saeed Ahmad relinquished their rights and thereby second notice dated 30-6-1981, was sent. It is the case of appellant that he did not receive the second notice and in his letter dated 23-8-1981 (Annexure `E'), it is stated as under:--
5. "Our clients state that you had sent one other notice which has been lost and is not available for perusal. Kindly post a duplicate or true copy to our address and oblige:"
6. This letter was responded and learned Advocate Mr. Muhammad Usman in his letter dated 22-9-1981, sent copy of the letter. The para. of this letter (Ex. `F') is as under:--
7. "That where after Mst. Siddiqa Khatoon and Mst. Khurshid Fatima relinquished their shares in favour of Dr. Saeed Ahmed and your client was accordingly intimated regarding the change in the ownership through letter dated 1-7-1981, but in spite of receipt of my notice dated 1-1-1981, your client failed to tender the rent. However. I am again sending you which your client have lost.
8. That the Cheque sent by you is not acceptable to my clients as your client already committed default in payment of rent and I have instructions from my clients to take appropriate action against him in the Court of Law and accordingly the Cheque is being returned and to be given to your client.
9. You are, therefore, requested to please pass on the enclosed Cheque and the reply to your client as my client intends to file ejectment proceedings against your client."
10. Dr. Saeed Ahmed who is respondent, has produced Mutation order (Ex. `D') issued by the Karachi Development Authority in which he has been shown as the sole lessee. From the above circumstances and the facts, it is very clear that appellant was trying and putting all efforts to pay the rent but he was over cautious to make such payment to the proper legal heirs of deceased Imran Fatima. The notices were replied The Cheque was given to the Advocate for the Respondent who received and it was returned. The right accrues to the landlord after the death of the owner when property has been transferred by sale, gift, inheritance or by such other mode as contemplated under section 18 of Sind Rented Premises Ordinance, 1979, respondent. Dr. Saeed, in my view became the sole owner of the property when actually the record was mutated in his favour after his two sister relinquished their rights and this mutation took place in the year 1982, as such he could claim the rent exclusively thereafter. Even otherwise the intention of the appellant was bona fide and this default is neither wilful nor deliberate. Therefore, I accept his appeal and set aside the order of the Rent Controller. The parties to bear their own costs.
11. M.Y.H./M-475/K Appeal allowed.