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Firdt Rent Appeal No. 65 of 1983, decided on 13th August, 1985.

‑‑‑S. 21(1)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑A‑‑Ejectment‑‑Wilful default‑‑Proof‑‑Tenant started depositing rent in Court before its sale in favour of respondent, before death of original owner and also before service of notice to tenant under S. 13‑A of Ordinance, 1959‑‑Premises were in dispute between respondent and legal heirs of original owner‑‑Approach and conduct of tenant in depositing rent in Court in view of dispute of title of premises between respondent and legal heirs of original owner was reasonable and bona fide‑‑Non‑payment of rent by tenant directly to respondent, held, could amount to technical default but not mala fide‑‑Tenant was not wilful defaulter in circumstances and discretion should have been exercised in favour of tenant.

Muhammad Nawab and others v. Shung Wounghchi 1984 C L C 3521 ref.

Zamir‑ul‑Haq for Appellant.

Akhtar Hussain for Respondent.

Date of hearing: 13th August, 1985.

The premises in dispute was owned by Muhammad Usman (Usto Muhammad) which was purchased by the respondent by a registered sale‑deed, dated 29‑11‑1978. Usman died on 13-7‑1979 and the respondents served a notice, dated 29‑8‑1979 under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance. This notice was served on 9‑9‑1979 but the appellant did not tender rent to the respondent and, therefore, ejectment application was filed against him. The property owned by Muhammad Usman is in dispute between the respondent and the legal heirs in consequence of which they have filed a suit for cancellation of the sale‑deed. The appellant denied the relationship of landlord and tenant and further pleaded that he is depositing rent from 1‑4‑1978 upto date in R.C. No. 2814 of 1978. The learned Controller held that the respondent is the landlord and after service of notice under section 13‑A, West Pakistan Urban Rent Restriction Ordinance the rent was not tendered to him and ordered for ejectment.

From the evidence on record it is fully established that Muhammad Usman was the owner and the landlord. There is a registered sale‑deed in favour of the respondent, dated 29‑11‑1978 and that Usman died on 3‑7‑1979. The notice under section 13‑A was served on 9‑9‑1979 and the rent was being deposited with the Rent Controller from the year 1978. The respondent has also admitted that after the sale‑deed was registered the rent was being collected by Muhammad Usman and not by the respondent. From these facts it is clear that even after sale of the property the respondent did not notify or exercise his right to claim the rent. There seems to be a serious controversy between the legal heirs of Muhammad Usman and the respondent who have challenged the sale‑deed. In this state of affairs when two persons were claiming title. to the property and the respondent did not serve any notice immediately or realise rent it is to be considered whether the conduct of the appellant was such which may render him as a defaulter. It is correct that the appellant has not paid the rent to the respondent within 30 days from the service of the notice under section 13‑A but it A is also clear that the rent was deposited in Court and there is nothing to show that .he has made any default in that respect. In fact he had started depositing rent even before the sale. In this state of affairs when the title of the respondent is disputed by the legal heirs of Usman, the approach and conduct of the appellant was reasonable and bona fide in depositing the rent in Court. The non‑payment of rent to the respondent directly may amount to a technical default but in the facts and circumstances of the case discretion should be exercised in favour of the appellant. The learned counsel for the respondent contended that as the deposit in Court was made in the name of Usman it cannot be treated as valid tender. The appellant has started depositing rent in 1978 before the sale and death of Usman. After the death in view of the dispute as stated above the appellant chose to deposit rent in the same proceeding. This action was neither mala fide nor intended to harass the respondent. It will be relevant to refer to Muhammad Nawab and others v. Shung Wounghchi 1984 C L C 3521 where it was held that if the tenant is depositing rent in Court prior to the service of notice under section 13‑A then he cannot be termed as a defaulter. In the present case the appellant is not a wilful defaulter. The appeal is allowed and the impugned order of Controller is set aside.

H.B.T. Appeal allowed.

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