MEHBOOB JEWELLERS and others vs NUR AHMAD

' NAIMUDDIN.J.-- This is an appeal by leave. Leave was granted to examine the question whether the petitioners had committed wilful default in payment of rent inasmuch as they had been admittedly depositing advance rent in the name of previous owner in Rent Case No, 1044/1973 and in the name of the respondent in Rent Case No,3181/1974, and, alternatively, whether it was a case of technical default which was liable to be condoned. The relevent facts, very briefly stated are:

2. The dispute relates to a tenement No,G/7 in the building on Plot No,1/52 situate at Haji Abdullah Street, Sarafa Bazar, Karachi, of which Haji Usman was the owner and landlord and the appellants the tenants.

3. One of the appellants filed a suit bearing No, 666/1973 for specific performance of the contract of sale of the shop to him. At the same time Haji Usman refused to accept the rent from the appellants. Therefore, the appellants started depositing, from May, 1973, the rent in accordance with the provisions of section 13 of the Sind Urban Rent Restriction Ordinance, 1959 in the Court of the Rent Controller in Misc. Rent Case No, 1044/1973. They deposited the rent in advance.

4. By a notice dated 26-7-1973 Ch. Nazir Ahmad, Advocate, on behalf of Haji Noor Ahmad, informed the appellants that his client has purchased the premises and that they should pay the rent to him.

In reply to the said notice the Advocate for the appellants informed the Advocate for the respondent that his client had been depositing the rent in the Court of IVth Civil Judge in Rent Case No, 1044/1973 and that they had paid the rent, in advance, upto the end of September, 1973. He also requested the Advocate for the respondent, to send a copy of the registered document showing that his client has become the owner of the property, in question. The request was never complied with. However, the suit, filed by one of the appellants, was dismissed as having become infructuous on 24-7-1974 on production of a certified copy of the registered sale-deed. Thereafter, the appellant tendered rent to the respondent but he refused to accept the same. By that time rent upto December, 1974 had already been deposited by the appellants in Misc. Rent Case No, 1044/1973. Therefore, the appellants started depositing the rent in another Misc. Rent application bearing No, 3181/1974 in the name of the respondent. The respondent filed an application for eviction on 7-11-1975 but by that date, rent in advance, upto December, 1975 had already been deposited in the Misc. Rent Case No,3181/ 1974.

5. It appears that if the respondent had complied with the request, made on behalf of the appellants for sending a copy of the registered document in favour of the respondent, which was made by letter dated 17-9-1973, the appellants would have paid the rent to the respondent or would have started depositing the rent in favour of the respondent. As this request was not complied with, therefore, the appellants continued depositing the rent in the name of the previous landlord. It appears that the previous owner had shown the transfer documents to one of the appellants on 24-7-1974 but by that time, as already stated, rent, in advance, up to December, 1974 had already been deposited in the Rent Case No,1044 of 1973.

6. In these circumstances it cannot be said that the appellants made default in the payment of rent. Indeed, their conduct shows that they were keen to pay the rent, and were, in fact, depositing the rent in advance. Therefore, there was no default, muchless a wilful default, on their part. In any case, the default was a purely technical one and ought to have been condoned. We would, therefore, allow the appeal with costs, and set aside the impugned order and judgment.