BUZARG TAMIL and another vs Haji ABDUL BARI and others

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.---By this order we propose to dispose of above titled petitions for leave to appeal as they are directed against common judgment dated 18-10-2002 passed by the High Court of Balochistan, Quetta, whereby the appeals being F.A.Os. No,2 and 14 of 2002 filed by the petitioners have been dismissed.

2. Precisely stating the facts of the case are that parties are litigating against each other in respect of ejectment of the subject commercial properties/shops situated in Chaman since long. In previous round of the litigation which culminated in the order of the High Court dated 11-11-1997, whereby the ejectment application filed by the respondents against the petitioners seeking their eviction both from the premises on the ground of non-payment of rent, personal bona fide use and occupation and subletting was dismissed. However, against the said order of the High Court, the landlord preferred petition for leave to appeal before this Court, which has been allowed and appeal is pending for decision since 19-8-1998. It so happened that in the meanwhile a fresh cause of action accrued to the respondents who vide application dated 6-4-2001 again sought the ejectment of the petitioners on the ground of default in the payment' of rent for the. Month of January, 1999 to December, 2000. Eviction application was contested by the petitioners and the learned Controller after observing codal formalities vide judgment dated 31-12-2001 came to conclusion that default in the payment of the rent has been committed. Petitioners being dissatisfied from the order of Controller tiled appeals before the High Court but without any success as the same have been dismissed vide impugned judgment, as such instant petitions have been filed.

3. Mehta W.N. Kohli, learned counsel for the petitioners contended that there is no default in payment of the rent because the rent has been- duly deposited in the bank through the office of the Rent Controller but inadvertently the name of the owner/respondent has not been mentioned in the column meant for the same, therefore, impugned order needs interference.

4. On the other hand, learned counsel for caveator vehemently stated that according to the provisions of section 13(2), Explanation (ii) of Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the "Ordinance") rent neither has been paid nor tendered to the respondents and in view of the law laid down by this Court in the case of Khawaja Ghulam Mustafa v. Mian Waqar Ahmed (PLD 1980 SC 9) default in payment of the rent has been committed.

5. We have heard the learned counsel for the parties and have also gone through the relevant record so made available. It is an admitted fact that as per the challans the rent has been deposited in the name of the Civil Judge/Rent Controller, knowing well that respondents being their landlords are entitled to receive the rent if it is paid or tendered to them in prescribed manner.

6. Now question for consideration would be as to whether it is a technical default in the payment of rent or the tenant has committed intentional and contumacious default? To elaborate this question it would be appropriate to reproduce hereinbelow section 13(2) Explanation (ii) of the Ordinance:-- "Rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area where the building or rented land is situated shall be deemed to have been duly tendered."

7. This very question was examined squarely by this Court in case of Khawaja Ghulam Mustafa (ibid). The relevant parafrom the judgment is reproduced hereinbelow:-- "Applying the same principle here too, the deposit of rent by the tenant in the names of large body of persons, namely, the heir of Haji Abdur Rashid instead of the respondents he had been specifically accepted as his landlord as explained earlier, was deliberate and contumacious and the Courts below were justified in not endorsing the validity of such a deposit. The Ordinance, whereas it gives certain protections and privileges to tenants, also imposes certain obvious obligations on them which, it may be stated, is their bounden duty to strictly follow."

8. Mehta W.N. Kohli, Advocate-on-Record stated that same question has also been examined by this Court in the case of Maj. (Rtd.). A.S.K. Samad v. Lt.-Col. (Rtd.). A. Hussain and another (1987 SCM R 1013) wherein the rent, deposited in the name of wife of the landlord was considered to be sufficient for compliance of provisions of law. In our opinion the contentions raised by the learned counsel for the petitioners basing on the judgment referred to hereinbefore is not correct because as far as the wife is concerned she was also one of the co-landlady, therefore, in this background it was held that the tender/deposit of rent in the name of wife is sufficient for compliance of the law.

But in the .Case in hand the distinct feature is that the rent has not been deposited in favour of the landlords at all because deposit of rent in the name of Civil Judge would not serve the object of law. i,e, rent is to be paid or tendered to the landlord as per the provisions of section 13(2), Explanation (ii) of the Ordinance. Thus applying the dictum laid down by this Court in the case of Khawaja Ghulam Mustafa (ibid) we are inclined to hold that the petitioners have failed to deposit or tender the rent in favour of the respondents/landlord for the period commencing from January, 1999 to December, 2002, therefore, this being the position they have committed intentional and contumacious default in the payment of rent and the Controller and learned High Court vide judgments dated 13-12-2001 and 8-10-2002 respectively have rightly adjudged that they have committed default in the payment of rent.

9. No other point was argued by the learned counsel. Thus for the foregoing reasons the petitions are dismissed and leave declined.