SULEMAN Versus M.A. MALLICK

MIAN BURHANUDDIN KHAN, J.‑‑ Respondent is the tenant of the appellants in respect of open plot measuring 450 sq. yds bearing Survey No.149 situate at Artillery Maiden, Karachi at a monthly rent of Rs.300. The appellants had purchased the aforesaid plot of land from Mst.Fazal Begum vide sale‑deed dated 10‑4‑1969. Prior to the purchase of the said plot the respondent was in occupation of the same as tenant of Mst.Fazal Begum at monthly rent of Rs.300.

2. As required by section 13‑A of the then West Pakistan Urban Rent Restriction Ordinance, 1959 the appellants served a notice dated 16‑12‑1969, by registered A.D. post, intimating the respondent about the purchase of the aforesaid plot by them from the previous owner, and called upon him to pay the rent in question with effect from 10‑4‑1969 to them, per Annexure 'C'. It is asserted by the appellants that the respondent refused to comply with the demand notice and instead wrote a letter dated 1‑1‑1970 to the appellants intimating them that the rent was being deposited in the District Court, Karachi and that they should approach that Court for the recovery of the same, and vide the same letter he asked them to furnish him with a photo state copy of the sale‑deed.

3. Thereafter, the appellants submitted an application to the learned Additional District Judge praying that the rent of the premises in question deposited by the respondent with effect from 10‑4‑1969 be paid to them, but this application was rejected on the ground that the rent was deposited in the name of previous landlords Mst.Fazal Begum and others. On this the appellants informed the respondent and also despatched a copy of the sale‑deed dated 10‑4‑1969 to him under cover of their letter dated 26‑3‑1970 and called upon the respon dent to pay the outstanding arrears of rent to them, but without any result.

4. Appellants, therefore, filed an application under section 13 of the aforesaid Ordinance seeking ejectment of the respondent on the ground that he had failed to pay the rent from 10‑4‑1969 to 19‑3‑1970 amounting to Rs.3,300. The learned Rent Controller vide order dated 31‑7‑1973 passed the ejectment order on the ground that the respondent had failed to make the payment of rent. He, however, rejected the plea of the appellants of personal requirement.

The respondent filed an appeal against the aforesaid order dated 31‑7‑1973 which was dismissed by the learned Additional District Judge vide order dated 7‑2‑1978. Second Appeal, filed by the respondent was, however, allowed by a learned Single Judge of the Sind High Court vide the impugned order dated 3‑3‑1980.

5. Leave was granted by this Court per order dated 12‑1‑1981 on the ground that notwithstanding the second notice served on the respondent, whereby he was informed that the rent earlier deposited by him in the name of the previous owner, could not be withdrawn by the petitioners, now appellants, and despite having seen the title document, he insisted in his written statement, that he would not pay the rent due to the petitioners, now appellants. Thus, default in payment of rent was willful as shown by the conduct of the respondent and the learned High Court Judge should not have exercised discretion in favour of the respondent when the two Courts below had not considered it a fit case for giving any relief.

6. We have gone through the judgment of the learned Rent Control ler wherein it has been held that notice of intimation regarding the purchase of the premises in question was sent by the landlords/appli cants to the tenant /respondent on 16‑12‑1969. On receipt of which the respondent demanded a copy of the sale‑deed which was also sent to him on 26‑3‑1970, and if the fact be taken into consideration that the aforesaid notice and copy of sale‑deed reached the tenant on 30‑3‑1970 the period will start from this date, and therefore, the tenant was required to pay the rent to the landlord before 30‑4‑1970 but he failed to do so and instead deposited the rent in Case No.931 of 1967 in the name of different landlord. Rent for March, 1970 was deposited in Court on 10‑4‑1970 whereas the notice was received by the tenant/opponent on 30‑3‑1970, and, therefore, he was not required to deposit the rent in Court and he should have tendered the same to the landlord. On this issue the learned Additional District Judge agreed with the finding of the Rent Controller relying or. P L D 1976 Kar.169 and P L D 1977 Kar.418 and observed in his judgment dated 7‑2‑1978 as follows:

"Even otherwise, the appellant after the receipt of second notice dated 26‑3‑1970 sent by the respondent enclosing Sale Deed failed to pay rent within 30 days from the receipt of the notice, and, therefore, he is still a defaulter within meaning of section 13‑A of the West Pakistan Urban Rent Restriction Ordinance, 1959."

7. After examining the contentions of the learned counsel for the parties we have come to the conclusion that the concurrent finding of the two Courts below should not have been interfered by the learned High Court Judge for the reason that the default has been established by the evidence on the record. Reference to the statements of the parties had been made by the learned Courts below and the learned High Court Judge has fallen into an error by making a distinction between the two reported cases mentioned above. The learned Judges in their respective decisions clearly held that a tenant could not withhold the rent pursuant to notice under section 13‑A of the aforesaid Ordinance for the reason that he shall have to satisfy himself as to the title of the new landlord. The law has been correctly interpreted in the aforesaid decisions and as such the tenant could not justifiably raise the plea that he was entitled to demand a copy of the title deed whereby the new landlord had purchased the premises. The learned Judge in the impugned order also ignored the evidence of the appellants that the respondent, having received the second notice dated 26‑3‑1970 still deposited the rent for the month of March, 1970 in Court in the name of the previous landlord. This act of the respondent was deliberate and amounted to willful default in the payment of rent.

Thus, we allow this appeal; set aside the impugned order, and restore that of the Rent Controller. Parties to bear their own costs.

M.Y.H. /S‑120/S Appeal allowed.