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First Rent Appeal No. 390 of 1985, decided on 13th August, 1985.

(a) Sind Rented Premises Ordinance (XVII of 1979)---

---S. 10(3)--Ordinance which confers certain rights on tenants imposes also certain obligations on them before they can claim benefits provided thereunder.

(b) Sind Rented Premises Ordinance (XVII of 1979)-

---S. 10(3)--Rent--Payment in Court--Withdrawal--Tenant was allowed by Rent Controller to deposit rent in Court at his own risk--Landlord dying without withdrawing rent and his legal heirs settling dispute amicably outside Court and having no objection to withdrawal of rent by tenant--Tenant, held, entitled to withdraw amounts at his own risk- Provisions of S. 10(3) of Ordinance were for benefit of tenant.

Nizam Ahmad for Appellant.

Abdul Waheed Kanjo for Respondents.

Date of hearing: 18th August, 1985.

This first rent appear is directed against the order, dated 27-5-1985 passed by the Xth Senior Civil Judge and Rent Controller, Karachi whereby the miscellaneous rent case filed by the appellant was dismissed.

The facts which give rise to this appeal are that the appellant is the tenant of plot of land bearing No. 42Q Garden West, Nishtar Road, Karachi and late Mr. Ghulam Ali was the owner of the aforesaid plot. The monthly rent of the plot is Rs.500 as per agreement, dated 1-1-1970. In or about 1980 the said late M. Ghulam Ali refused to accept rent from the appellant and, therefore, on or about 5-1-1981 the appellant filed Miscellaneous Rent Application No. 78 of 1981 under section 10(3) of the Sind Rented Premises Ordinance, 1979 against late M. Ghulam Ali. The application was allowed on 5-1-1981 : by the Xth Senior Civil Judge and Rent Controller. The learned Rent Controller passed the following order:-

"The applicant is allowed to deposit rent in Court as prayed at their own risk without prejudice to the right of opponent and objection, if any, by him. This application is under section 10(3) of the Sind Rented Premises Ordinance, 1979.

The opponent to be informed about the deposit in Court through bailiff and registered post A.D. on costs. The application stands disposed of in above terms."

It seems that the appellant thereafter deposited monthly rent with the Nazir in pursuance of the aforesaid order, dated 5-1-1981.

The said late M. Ghulam Ali did not withdraw the rent deposited by the appellant.

The said M. Ghulam Ali died on 23-2-1985 at Taxila, District Rawalpindi, leaving the respondents as his only legal heirs. On 24-4-1985 the appellant filed Miscellaneous Application No. 78 of 1981 for permission to withdraw the amount of rent which was deposited by him as the dispute between the parties had been amicably settled outside the Court.

The learned Rent Controller dismissed the application vide order, dated 27-5-1985.

The appellant being aggrieved by the aforesaid order, dated 27-5-1985 of the Xth Rent Controller, Karachi has preferred this first rent appeal on the grounds mentioned in the memo. of appeal.

Mr. Nizam Ahmad, learned Advocate for the appellant, has contended that the learned Rent Controller erred in not considering that the appellant had deposited rent in Court at its own risk and as such the appellant is entitled to withdraw the said amount at its own risk.

On the other hand Mr. Abdul Waheed Kanjo, the learned Advocate for the respondent, has submitted that he appeared in the Court of Rent Controller and he had already endorsed no objection for withdrawal of amounts deposited by the appellant. The learned counsel has further submitted that M. Ghulam Ali the original owner- of the plot died on 23-2-1985 at Taxila and has left behind the respondents as his legal heirs.

I have heard the learned counsel for the parties. The appellant is tenant in respect of the plot of land bearing No. 420 Garden West, Karachi at the monthly rent of Rs.500 and M. Ghulam Ali was the owner of the said plot. The appellant filed miscellaneous application under section 10(3) of the Sind Rented Premises Ordinance, 1979. Subsection (3) of section 10 of the Ordinance provides that where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situated. The Ordinance which confers certain rights on the tenants imposes also certain obligations on them before they can claim the benefits provided thereunder. It seems that the said Ghulam Ali did not withdraw the rent. M. Ghulam Ali died on 23-2-1985 at Taxila leaving behind the respondents as his legal heirs. The appellant and the legal heirs of M. Ghulam Ali have settled their disputes amicably outside the Court.

I am of the opinion that the appellant sought permission for depositing rent with .the Nazir of the Court and the application was allowed and he was allowed to deposit the monthly rent at his own risk. The respondents have no objection for withdrawal of the said amount. Subsection (3) of section 3 of the Ordinance puts an obligation on the tenant to deposit rent and to continue to deposit. The provisions are for the benefit of the tenant. As the appellant was allowed to deposit the rent at his own risk, he can be allowed to withdraw the C same at his own risk. It is an admitted position that the respondents are the only legal representatives of late M. Ghulam Ali. I am of the view that the appellant is entitled to withdraw the amounts at his own risk. In these circumstances it seems that the production of succession certificate is unnecessary.

In view of the foregoing reasons I allow the appeal and set aside the order passed by the learned Rent Controller. In the result there will be no order as to costs.

M.Y.H.

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