1994 PLP 1918 (SCMR)
Haji USMAN BHAI‑‑‑Appellant Versus Syed ALI IMAM ZAIDI and 2 others‑‑‑Respondents
| Citation | 1994 PLP 1918 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Ajmal Mian and Sajjad Ali Shah, JJ |
| Parties | Haji USMAN BHAI‑‑‑Appellant Versus Syed ALI IMAM ZAIDI and 2 others‑‑‑Respondents |
Q1: What are the key laws and sections cited in 1994 PLP 1918 (SCMR)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1994 PLP 1918 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Ajmal Mian and Sajjad Ali Shah, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1994 PLP 1918 (SCMR) (Haji USMAN BHAI‑‑‑Appellant Versus Syed ALI IMAM ZAIDI and 2 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- A. Aziz Khan, Advocate‑on‑Record for Appellant.
- S.M. Noorul Hassan, Advocate Supreme Court and S.M. Abbas, Advocate‑on‑Record for Respondents.
- Date of hearing: 24th May, 1994.
- If factually the tenant had no knowledge about the death of the owner till he received new landlord's advocate's notice dated 27‑2‑1984, there was no plausible reason for not depositing of the rent in terms of the agreement i.e. monthly rent in advance by 10th of each month.
- A landlord in the absence of any contrary agreement is entitled to address his communication at the demised premises. In the present case, since the new landlords sent intimation dated 17‑1‑1983 about their having become owners by virtue of inheritance through registered post as provided under section 18 of the Ordinance, it shall be deemed to have reached, when the intimation should, in normal course, have reached the tenant. The factum that it was not delivered because the tenant was not found at the demised premises cannot be pressed into service by the tenant to his advantage. If the tenant had no notice about the death of the deceased owner will the receipt of the new landlord's advocates above notice dated 27‑2‑1984 he committed four defaults and by not depositing rent in terms of the lease agreement. If a tenant has no knowledge about the transfer of ownership, he remains liable to pay rent regularly in terms of the lease agreement and/or the Ordinance. Since the above four defaults would have been deemed to have been erased by virtue of section 18 of the Ordinance if the tenant would have tendered due rent within 30 days in terms thereof; the intimation dated 17‑1‑1983 in like manner should be deemed to have reached, when intimation should, in normal course have reached the tenant.
- 2. The brief facts are that the appellant under lease agreement dated 30‑9‑1981, hereinafter referred to as the Lease Agreement, had taken on rent at Rs.800 per month southern portion of Bungalow No. 43‑C, Block‑VI, Federal B. Area, Karachi‑38 hereinafter referred to as the suit premises for a period of eleven months, expiring on 30‑8‑1982. It appears that under clause 1 of the Lease Agreement the appellant undertook to pay monthly rent in advance by 10th of every month regularly. It seems that S. Karim Haider s/o Mir Fayaz Hussain, the owner of the suit premises, expired on 12‑12‑1981 leaving behind the respondents as the legal heirs. It is the case of the respondents that under section 18 of the Ordinance they sent intimation through their notice dated 30‑12‑1981 under Registered Post, however, this has been denied by the appellant. Be that as it may, the respondents sent another notice dated 17‑1‑1983 under section 18 of the Ordinance intimating about the death of the owner, and calling upon the appellant to pay the arrears of the rent. Since' there was no response, the respondents served a notice dated 27‑2‑1984 through their Advocate upon the appellant stating therein that in spite of receipt of the above notices he had not paid the arrears of the rent. It was also alleged that the appellant had also committed other breaches mentioned therein. The notice was responded to by the appellant's Advocate through letter dated 24‑3‑1984, in which it was averred that the appellant had not received any earlier notice. It was also stated that the rent was already deposited up to 31‑12‑1984. The respondent's Advocate was asked that his clients should obtain Letter of Administration. After that the above rent case was filed in April 1984 on the grounds of default, conversion of the use from residence to industrial, impairing materially the value and utility of the premises and nuisance.
- 8. In the case in hand the respondents have not been able to prove that they had in fact sent intimation dated 30‑12‑1981 through registered post. However, they have been able to prove the factum that they had been intimation in writing through registered post on 17‑1‑1983 at the address of suit premises but the same was not received as the Postal Authority found no person living by the appellant's name. It may be stated that a copy of the above notice and the certificate of Postal Authorities are on record as ExhA‑5/4 and ExhA‑5/5 at pages 67 and 68 of the paper book. According to the learned counsel for the appellant the above intimation cannot be treated as an intimation in terms of section 18 as admittedly it was not received by the appellant, wherein, according to learned counsel for the respondents, the above intimation was sent at the suit premises with correct address and, therefore, the same is deemed to have reached in normal course. At this juncture, it may be pertinent to point out that if factually the appellant had no knowledge about the death of the owner till he received respondents' advocates above notice dated 27‑2‑1984, there was no plausible reason for not depositing of the rent in terms of clause 1 of the agreement i.e. monthly rent in advance by 10th of each month, even if we were to hold that the deceased owner had directed the appellant to deposit monthly rent in his account number in the Bank at Karachi. The above‑quoted statement of deposit from the respondents' concise statement shows that the above deposits were not in terms of above clause 1 of the Agreement and there were defaults as pointed out by the learned counsel for the respondents. However, since we have held that after the ownership is transferred on account of sale, gift, inheritance or by any other mode, above section 18 of the Ordinance will be attracted to the case. The basic question which needs consideration is as to whether the intimation dated 17‑1‑1983 can be treated as, an intimation under above section 18 of the Ordinance. In this regard, it may be pertinent to point out that above section 18 of the Ordinance does not speak of actual service of receipt of intimation by a tenant which is the requirement under subsection (1) of section 14 thereof in respect of a notice provided therein but it requires a new owner to send intimation of the transfer of ownership by a registered post. It also provides that if the tenant pays due rent within 30 days from the date when the intimation should, in normal course, have reached, he shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of section 15 of the Ordinance. The above section seeks to be for the benefit of the new owner as well as for the tenant. The portion of the above section, which does not provide for the actual service or receipt of intimation by a tenant appears to be beneficial to the new owner, whereas the portion which by fiction of law because of incorporation of a deeming provisions erases default committed after the transfer of ownership, but prior to the posting of intimation about it seems to be for the advantage of the tenant.
- It may be observed that a landlord in the absence of any contrary agreement is entitled to address his communication at the demised premises. In the present case since the respondents sent above intimation dated 17‑1‑1983 about their having become owners by virtue of inheritance through registered post as provided under the above section 18 of the Ordinance, it shall be deemed to have reached, when the intimation should, in normal course have reached the appellant. The factum that it was not delivered because the appellant was not found at the demised premises cannot be pressed into service by the appellant to his advantage. If the appellant had no notice about the death of the deceased owner till the receipt of the respondents Advocates above notice dated 27‑2‑1984 as contended by him, he committed 4 defaults as pointed out by the learned counsel for the respondents by not depositing rent in terms of the lease agreement. It may be mentioned that if a tenant has no knowledge about the transfer of ownership, he remains liable to pay rent regularly in terms of the lease agreement and/or the Ordinance. Since the above 4 defaults would have been deemed to have been erased by virtue of section 18 of the Ordinance if the appellant would have tendered due rent within 30 days in terms thereof; the above intimation dated 17‑1‑1983 in like manner shall be deemed to have reached when intimation should, in normal course have reached the appellant.
Headnotes / Summary
(On appeal from the judgment dated 14‑11‑1992 of the Sindh High Court in RA. No. 261 of 1989). (a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑ ‑‑‑‑S. 18‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to consider the contention of tenant that in view of the fact that notice under S. 18 of the Ordinance was received by him after he had already deposited the advanced rent, the High Court was not justified in holding that he had committed default. (b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑ ‑‑‑‑S.20‑‑‑Civil Procedure Code (V of 1908), O.XLI, R.22‑‑‑Appeal‑‑‑Exercise of powers of Civil Court under Civil Procedure Code, 1908 by Rent Controller and the Appellate Authority‑‑‑Extent‑‑‑Provisions of O.XLI, R.22, C.P.C. cannot be invoked in view of S. 20(a)(b)(c)(d) of the Sindh Rented Premises Ordinance, 1979. All the provisions of the Civil Procedure Code have not been made applicable to the proceedings under the Sindh Rented Premises Ordinance, 1979 but the Controller and the Appellate Authority i.e. High Court have been given powers of a Civil Court under the C.P.C. for the purposes specified in the above‑quoted clauses (a), (b), (c) and (d) of section 20 of the Sindh Rented Premises Ordinance, 1979. In this view of the matter, the provisions of rule 22 of Order XLI, C.P.C. which is applicable to an appeal against a decree cannot be invoked in aid. The position was somewhat different when a second appeal was provided to the High Court under the Late West Pakistan Rent Restriction Ordinance and provisions of C.P.C. were made applicable to such appeals. (c) Sindh Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑‑Ss. 18 & 15‑‑‑Default‑‑‑Successor‑in‑interest, in the normal course, will be entitled to press into service default committed by a tenant during the ownership or lifetime of the original landlord but default which is committed after the transfer of property by virtue of sale, gift or inheritance can be pleaded only in terms of S. 18 of the Sindh Rented Premises Ordinance, 1979. A distinction is to be draw between a default which is committed during the ownership or lifetime of the previous landlord and the one which is committed after the transfer of ownership by virtue of sale, gift or inheritance. In the normal course a successor‑in‑interest will be entitled to press into service default committed by a tenant during the ownership of lifetime of the previous landlord but in the latter case the default can be pleaded in terms of section 18 of the Sindh Rented Premises Ordinance. Where the ownership of a premises in possession of a tenant has been transferred by sale, gift, inheritance or by any other mode, the new owner is obliged to send an intimation of such transfer in writing by registered post to the tenant and that the tenant shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of section 15 of the Ordinance, if the rent due is paid within 30 days from the date when the intimation should, in normal course, have reached the tenant. In the present case the new landlords have not been able to prove that they had in fact sent intimation dated 30‑12‑1981 through registered post. However, they have been able to prove the factum that they had sent intimation in writing through registered post on 17‑1‑1983 at the address of suit premises but the same was not received as the Postal Authority found no person living by the tenant's name. If factually the tenant had no knowledge about the death of the owner till he received new landlord's advocate's notice dated 27‑2‑1984, there was no plausible reason for not depositing of the rent in terms of the agreement i.e. monthly rent in advance by 10th of each month. Since after the ownership is transferred on account of sale, gift, inheritance or by any other mode, section 18 of the Ordinance will be attracted to the case, the basic question which needs consideration is, as to whether the intimation dated 17‑1‑1983 can be treated as an intimation under above section 18 of the Ordinance. Section 18 of the Ordinance does not speak of actual service of receipt of intimation by a tenant which is the requirement under subsection (1) of section 14 thereof in respect of a notice provided therein but it requires a new owner to send intimation of the transfer of ownership by a registered post. It also provides that if the tenant pays due rent within 30 days from the date when the intimation should, in normal course, have reached, he shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of section 15 of the Ordinance. The above section seeks to be for the benefit of the new owner as well as for the tenant. The portion of the above section, which does not provide for the actual service or receipt of intimation by a tenant appears to be beneficial to the new owner, whereas the portion which by fiction of law because of incorporation of a deeming provisions erases default committed after the transfer of ownership, but prior to the posting of intimation about it seems to be for the advantage of the tenant. A landlord in the absence of any contrary agreement is entitled to address his communication at the demised premises. In the present case, since the new landlords sent intimation dated 17‑1‑1983 about their having become owners by virtue of inheritance through registered post as provided under section 18 of the Ordinance, it shall be deemed to have reached, when the intimation should, in normal course, have reached the tenant. The factum that it was not delivered because the tenant was not found at the demised premises cannot be pressed into service by the tenant to his advantage. If the tenant had no notice about the death of the deceased owner will the receipt of the new landlord's advocates above notice dated 27‑2‑1984 he committed four defaults and by not depositing rent in terms of the lease agreement. If a tenant has no knowledge about the transfer of ownership, he remains liable to pay rent regularly in terms of the lease agreement and/or the Ordinance. Since the above four defaults would have been deemed to have been erased by virtue of section 18 of the Ordinance if the tenant would have tendered due rent within 30 days in terms thereof; the intimation dated 17‑1‑1983 in like manner should be deemed to have reached, when intimation should, in normal course have reached the tenant. Abdul Rauf v. Nawab Ali and 3 others PLD 1986 Kar. 117 and Muhammad Azim and others v. Sh. Muhammad Nawaz and others PLD 1966 SC 182 distinguished.
Judgment & Decree
(b) compelling production or discovery of documents; (c) inspecting the site; and (d) issuing commission for examination of witnesses or documents." A plain reading of the above‑quoted section 20 of the Ordinance shows that all the provisions of the Civil Procedure Code have not been made applicable to the proceedings under the Ordinance, but the Controller and the Appellate Authority i.e. High Court have been given powers of a Civil Court under the C.P.C. for the purposes specified in the above‑quoted clauses (a), (b), (c) and (d). In this view of the matter, the provisions of rule 22 of Order XLI, C.P.C. which is applicable to an appeal against a decree cannot be invoked in aid by the learned counsel for the respondents. The position was somewhat different when a second appeal was provided to the High Court under the Late West Pakistan Rent Restriction Ordinance and provisions of C.P.C. were made applicable to such appeals.
6. As regard the above second contention "that the appellant had committed four defaults prior to his acquiring knowledge about the death of the owner and, therefore, the respondents were entitled to press into service the above defaults" it may be observed that in support of his above submission Mr. S.M. Noorul Hassan has invited our attention to the statement of deposits and defaults given by the respondents at page 3 of their concise statement, which reads as follows:‑‑ Date of deposit of rent in Bank Amount Rs. Period to which rent per- tained Details of Default Remarks 11‑3‑82 9792 1-1-82 to 31-12-82 to 29 days default for (1) 1 days default for rent of February, 1982. First Notice under section 18 was sent on 30-12-1982. 11‑3‑83 4896 1-1-82 to 30-6-83 (1) 29 days default for rent of January 1983. Second Notice under section 18 was sent on 17-8-1983 2‑11‑83 4896 1-7-1983 to 1-12-83 (1)84 days default for rent of July, 1983 (1) 53 days default for rent for August, 1983. (1) 23 days default for rent for September. (1) Tenant admitted default in cross-examination. (2) High Court found tenant at default for rent in respect of this period. 31‑1‑84 9792 1-1-84 to 31-12-84 21 days default for rent for January,1984. Rent Controller found tenant at default for rent for 5 days. According to Mr. S.M Noorul Hassan as under clause 1 of the Lease Agreement the rent was payable by 40th .of each month in advance, the appellant had committed above four defaults for the periods mentioned in Column
4. He has also submitted that though the default of 29 days is mentioned in respect of the second deposit made by the appellant but factually the default is for 54 days. In furtherance of his above submission, he has referred to the case of Abdul Rauf v. Nawab Ali and 3 others (PLD 1986 Karachi 117) and the case of Muhammad Azim and others v. Sh. Muhammad Nawaz and others (PLD 1966 SC 182). In the above first case a learned Single Judge of the High Court has, inter alia, held that default committed by a tenant during the tenancy of previous, landlord would subsist for the benefit of subsequent landlord as well, whereas, in the above second case this Court, inter alia, has held that default committed by a deceased tenant was a ground' upon which his legal representatives as tenants could be evicted. The above cases have no application to the present case inasmuch as the above alleged four defaults had taken place after the death of the owner who expired who expired on 12‑12‑1981 as stated above and the above first alleged default had taken place in 1982. We may observe that a distinction is to be drawn between a default which is committed during the ownership or lifetime of the previous landlord and the one which is committed after the transfer of ownership by virtue of sale, gift or inheritance. In the normal course a successor‑in‑interest will be entitled to press‑into service default committed by a tenant during the ownership of lifetime of the previous landlord but in the latter case the default can be pleaded in terms of section 18 of the Ordinance.
7. This leads us to the contention of the learned counsel for the appellant and counter‑submission by the learned counsel for the respondents as to question of default. In this behalf, it may be advantageous to reproduce section 18 of the Ordinance, which reads as follows:‑ "
18. Where the ownership of a premises in possession of the tenant has been transferred by sale, gift,, inheritance or by such other mode, the new owner shall send an intimation ‑ of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection 2() of section 15, if the rent due is paid within thirty days from the date when the i4timation should, in normal course, have reached the tenant." A perusal of the above‑quoted section 18 indicates that where the ownership of a premises in possession of a tenant has been transferred by sale, gift, inheritance or by any other mode, the new owner is obliged to send an intimation of such transfer in writing by registered post to the tenant and that the tenant shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of section 15 of tae Ordinance, if the rent due is paid within 30 days from the date when the intimation should, in normal course have reached the tenant.
8. In the case in hand the respondents have not been able to prove that they had in fact sent intimation dated 30‑12‑1981 through registered post. However, they have been able to prove the factum that they had been intimation in writing through registered post on 17‑1‑1983 at the address of suit premises but the same was not received as the Postal Authority found no person living by the appellant's name. It may be stated that a copy of the above notice and the certificate of Postal Authorities are on record as ExhA‑5/4 and ExhA‑5/5 at pages 67 and 68 of the paper book. According to the learned counsel for the appellant the above intimation cannot be treated as an intimation in terms of section 18 as admittedly it was not received by the appellant, wherein, according to learned counsel for the respondents, the above intimation was sent at the suit premises with correct address and, therefore, the same is deemed to have reached in normal course. At this juncture, it may be pertinent to point out that if factually the appellant had no knowledge about the death of the owner till he received respondents' advocates above notice dated 27‑2‑1984, there was no plausible reason for not depositing of the rent in terms of clause 1 of the agreement i.e. monthly rent in advance by 10th of each month, even if we were to hold that the deceased owner had directed the appellant to deposit monthly rent in his account number in the Bank at Karachi. The above‑quoted statement of deposit from the respondents' concise statement shows that the above deposits were not in terms of above clause 1 of the Agreement and there were defaults as pointed out by the learned counsel for the respondents. However, since we have held that after the ownership is transferred on account of sale, gift, inheritance or by any other mode, above section 18 of the Ordinance will be attracted to the case. The basic question which needs consideration is as to whether the intimation dated 17‑1‑1983 can be treated as, an intimation under above section 18 of the Ordinance. In this regard, it may be pertinent to point out that above section 18 of the Ordinance does not speak of actual service of receipt of intimation by a tenant which is the requirement under subsection (1) of section 14 thereof in respect of a notice provided therein but it requires a new owner to send intimation of the transfer of ownership by a registered post. It also provides that if the tenant pays due rent within 30 days from the date when the intimation should, in normal course, have reached, he shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of section 15 of the Ordinance. The above section seeks to be for the benefit of the new owner as well as for the tenant. The portion of the above section, which does not provide for the actual service or receipt of intimation by a tenant appears to be beneficial to the new owner, whereas the portion which by fiction of law because of incorporation of a deeming provisions erases default committed after the transfer of ownership, but prior to the posting of intimation about it seems to be for the advantage of the tenant. It may be observed that a landlord in the absence of any contrary agreement is entitled to address his communication at the demised premises. In the present case since the respondents sent above intimation dated 17‑1‑1983 about their having become owners by virtue of inheritance through registered post as provided under the above section 18 of the Ordinance, it shall be deemed to have reached, when the intimation should, in normal course have reached the appellant. The factum that it was not delivered because the appellant was not found at the demised premises cannot be pressed into service by the appellant to his advantage. If the appellant had no notice about the death of the deceased owner till the receipt of the respondents Advocates above notice dated 27‑2‑1984 as contended by him, he committed 4 defaults as pointed out by the learned counsel for the respondents by not depositing rent in terms of the lease agreement. It may be mentioned that if a tenant has no knowledge about the transfer of ownership, he remains liable to pay rent regularly in terms of the lease agreement and/or the Ordinance. Since the above 4 defaults would have been deemed to have been erased by virtue of section 18 of the Ordinance if the appellant would have tendered due rent within 30 days in terms thereof; the above intimation dated 17‑1‑1983 in like manner shall be deemed to have reached when intimation should, in normal course have reached the appellant.
9. The upshot of the above discussion is that the above appeal has no merits. It is dismissed with no order as to costs. However, the appellant is granted six months time from today on the condition that the appellant shall continue to pay rent regularly, failing which the respondents shall be at liberty to file execution application before the expiry of the above period of six months. Furthermore, in case the appellant fails to hand over the possession of the suit premises upon the expiry of the above period of six months, the learned Rent Controller shall issue a writ of ejectment without further notice to the appellant. M.BA./U‑58/S Appeal dismissed.