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Before Abdul Razzak A. Thahim, J
COMMERCE BANK LTD.-Appellant
versus
Mst. SUGHRAN BAI AND 3 OTHERS-Respondents
Second Rent Appeal No. 15 of 1984, decided on 4th December; 1986.,
S. 13-Default in payment of rent-Additions and alterations-- Tenant paying a certain sum on account of arrears of property tax and income-tax in accordance with law on behalf of legal heirs of deceased landlord-Receipts produced by him not controverted---- Tenant on death of landlord required a list of his heirs who could claim rent but same was not furnished-Conduct of tenant showing that. he was prepared to pay rent and he did not commit wilful default-No evidence available on record that tenant had made such acts which had impaired material value or utility of premises-Order of Rent Controller, dismissing ejectment application, restored.
1982 C L C 1006 ; 1980 S C M R 834; 1985 C L C 1392; 1981 S C M R 179;1984MLD46; 1985SCMR24and1986SCMR751ref.
Inamul Hag for Appellant.
Badrudduja Khan for Respondents.
Date of hearing : 10th November, 1.986.
This second appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as Ordinance) has been filed against the order dated 17-9-1984 of III Additional District Judge, Karachi, who allowed the appeal of the respondent and set aside the order of Rent Controller whereby rent case was dismissed. He allowed four months' time to appellant to vacate the premises.
2. The facts are that on 3-4-1974 respondent filed rent case under section 13 of the Ordinance on the ground of default in payment of rent from 1-6-1971 to March 1974 and on the ground of damage to the property. Appellants in their statement denied the allegations and stated that on the death of tenant Mr. Hamani appellant tried his best to find out the names of legal heirs of the deceased and on getting the same they sent registered letters to the heirs but same were returned unserved, therefore, they had to wait for notice under section 13-A of the Ordinance. However, appellant had stated the rent from 1-6-1971 in name of deceased is kept in sundry account every month, regularly, therefore, no default has been committed. It is also stated that the amount of Rs. 2,50,000 as security deposit was lying with late Mr. Hamani and he agreed to execute registered rent deed in favour of the bank which he failed to do so as well as the present respondents till today, therefore, appellants are entitled to claim adjustment of all the arrears of future rent from the security deposit, and that from 1-1-1971 up to 31-1-1974 rent due would be Rs. 14,415 out of which appellant paid Rs. 11,625 on account of arrears of property taxes in accord ance with the law on behalf of the legal heirs and balance of Rs. 2,790 to the income-tax authority on receiving notice under section 46 (5-A) of the Income-tax Act, 1922 in December 1973, therefore, appellant paid rent due up to 30-4-1974.
3. I have heard Mr. Inamul Haq for the appellant. It is contended that bank has not committed any wilful default in payment of rent as the taxes and other liabilities were paid by the bank on receiving the notice froth the relevant authorities. It is argued that an amount of Rs. 2,50,000 is lying with the respondent and the rent can be adjusted from that amount. He has also argued that additions and alterations were not made by the bank. The notice under section 13-A of the Ordinance was not served, therefore, bank was not in position to tender rent to the heirs but the amount was kept in sundry amount. He has relied upon a case reported in 1982 C L C 1006.
4. Mr. Badrudduja Khan for the respondent submitted that plea of adjustment was not taken by the appellant therefore he is not entitled to claim the adjustment. He has referred to the cases reported in 1980 S C M R 834 and 1985 C L G 1392. It is argued that appellant had the knowledge about the death of Mr. M. A. Hamani, therefore, notice under section 13-A of the Ordinance was not necessary. He has referred to the cases reported in 1981 S C M R 179, 1984 M L D 46, 1985 S C M R 24 and 1986 S C M R 751. It is also argued that according to terms of the agreement the rent is not adjustable towards the deposit.
5. The relationship and the rate of rent is not disputed. Muhammad Ali Hamani landlord died on 5-6-1971 and the rent case has been filed on 3-4-1974 after lapse of about 3 years. The appellants have not denied this fact but has taken the plea that on coming to know about the death of Mr. Hamani the appellant tried to find the names of legal heirs of deceased and on getting some names they sent a registered letter dated 8-1-1971 but those letters returned unserved, therefore, they had no other way but to wait for notice under section 13-A and in the meanwhile started crediting rent from 1-6-1971 in the name of deceased in sundry account every month regularly. t is also stated that by the agreement dated 13-1-1968 appellants paid Rs. 2,50,000 as security deposit to late Hamani. It is the case of the appellant that they paid Rs. 11,625 on account of arrears of property taxes in accordance with law on behalf of the legal heirs and late Hamani and also Rs. 2,790 to Income-tax Authority on receiving the notice under section 46 (5-A) of the Income-tax Act, 1922 in December 1970, therefore, according to them they have paid rent to 30-4-1974. In support Sher A Muhammad, Manager of the Bank, has produced agreement Exh. B/1 dated 13-1-1968, certificate in respect of Rs. 2,50,000 Exh. B/2 and certificate B/3 showing the amount of Rs. 19,995 has been debited in sundry. The notice of the Income-tax and receipt with regards to the payment of taxes and Income-tax also produced by this witness which have not been controverted. The appellant in notice dated 8th November, 1971, Exh. B/16 Mrs. Tahira, widow of Mr. Tamzan Ali, requested to return the draft of the lease deed which is handed over to Mr. Hamani personally for approval and also in that letter the list of legal heirs were called for. It another letter dated 19th December, 1973, Exh. 17, it was informed to Mrs. Tahira that no notice under section 13-A of the Ordinance has been received by the appellant as required under the Ordinance nor any authority for payment of rent from June 1971. In the same letter it is stated that accumulated rent is being deposited in the sundry account pending receipt of notice under section 13-A. In the end of the letter it is stated as under :------
"We hereby, therefore, request you to please give us the name of any one owner or the name of all the owners in whose name, we can forward arrears of rent in accordance with agreement."
On the other hand, Mst. Sughra Bai in his evidence produced copy of the letter dated 19-10-1972, Exh. A/1, informing the appellant about the legal heirs. This letter has been denied to have been received by the appellant. This letter was sent after one year of the death of Mr. Hamani. In case of Haji Khuda Bux v. Muhammad Anwar (1982 C L C 1006) it has been held that tenant paying house tax due on premises to assessing authority in pursuant of the notice held fully justified to do so and he cannot be deemed to be wilful defaulter, With regards to the notice that in the ,year 1971 immediately appellant required the list of the tenant and there is nothing on the record to show that the list of all the heirs who could claim the rent was furnished to appellant. Not only this but in the year 1973 the appellant requested to furnish the list of legal heirs and they were prepared to pay the rent. The conduct of the appellant is clear. It is proved beyond shadow of doubt that liabilities and taxes were paid by the appellant on behalf of legal heirs on receiving notice from the competent authorities. These taxes in terms of the agreement were to be paid by the landlord/respondent, therefore, appellant can rightly adjust this claim from the respondents. Furthermore, an amount of Rs. 2,50,000 is lying with the late M. A. Hamani. In terms of the agreement this amount was not for specific purposes and is liable to be refunded in full to the appellant on termination of the lease in question. Adjustment can be allowed from the amount of Rs. 2,50,000 lying with respondent. Appellant has not committed wilful default in payment of rent. With regards to the allegations of additions and alterations in the premises the findings of the learned Rent Controller and learned IIIrd Addi tional District Judge are concurrent. No evidence has come on record to show that appellants have made such acts which have impaired the material C vale of utility of the premises. I, therefore, allow the appeal and set aside the judgment dated 17-9-1984 of HIM Additional District Judge, Karachi, consequently the order of the Rent Controller by which the rent application was dismissed is maintained.
M. Y. H./5085/K Appeal allowed.
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