2000 PLP 1825 (MLD)

(i) Abdul Kadir and another v. Muhammad Yaqoob 1991 SCMR 1029 (ii) Haji Usman Bhai v. Syed Ali Imam Zaidi and others 1994 SCMR 1918. (iii) Karamat Hussain v. Kazi Ali. Muhammad 1996 SCMR 441. (iv) Moizur Rehman v. Mrs. Fakhra Javed PLD 1991 Kar. 45 (v) Mohiuddin Ansari v. Muhammad Arif Siddiqui 1991 CLC 72.

4. It was argued by Mr. Waqar Muhammad Khan Lodhi that the appellant/tenant was in full knowledge of the fact that the rented premises has undergone change of ownership and, therefore, formality of issuing notice under section 18 of, the Ordinance, 1979 does not arise. He has referred to the copies of the pleadings filed by the appellant/tenant alongwith his affidavit in evidence which pertain to Suit No. 1808 of 1987 (Fazal Hussain v. Russi H. Dinshaw and others). In addition, he had also pleaded due service of notice under section 18 on the appellant/tenant. It was also contended that despite gaining knowledge of this fact of transfer of ownership, the appellant/tenant continued depositing rent in the name of previous landlord which clearly constitutes deliberate and wilful default. On the point of res judicata, it was argued that this rule will not attract as respondent/tenant is also pleading default from the period November, 1989 which was not the subject‑matter of the earlier rent case. Mr. Waqar Muhammad Khan Lodhi has placed reliance on the following cases:‑‑ (i) Pakistan National Shipping Corporation v. Messrs General Service Corporation 1992 SCMR 871. (ii) Mst. Jehan Ara v. Mst. Tayyaba Khatoon 1996 CLC 377. (iii) Qaimuddin v. Ghulam Shah 1993 CLC 336. (iv) Muhammad Raghib v. Abdul Razzak PLD 1994 Kar. 20. (v) Ghulam Samdani v. Abdul Hameed 1992 SCMR 1170. (vi) Major (Recd.) Muhammad Yousaf v. Mehraj‑ud‑Din and another 1986 SCMR 751.

5. There is no cavil to the proposition that the rule of res judicata is equally applicable in the rent cases. A party pleading such rule is required to show that the issues involved in the subsequent proceedings were common between the same parties in the earlier round of litigation which has attained finality before the competent Courts. I have examined the proceedings of both the rent cases. The earlier rent case was filed on 17‑12‑1989 alleging that the appellant/tenant has committed wilful default from September, 1986. The instant case was filed on 25‑4‑1993 claiming that the tenant has defaulted in payment of rent from November, 1989. At the time of filing earlier rent case, the default for the month of November, 1989 had not matured as that rent case was filed in the month of December, 1989. Both the causes of action being separate, the rule of res judicata is, therefore, not applicable. Now, the question which requires consideration is whether a landlord is required to serve a notice under section 18 of the Ordinance, 1979 despite the fact that his tenant is in positive knowledge of the change of ownership and whether such tenant could be ejected on the ground of default.

6. In the case of Muhammad Yousaf (1986 SCMR 751), it was held, inter alia, while following the rule laid down in the case Syed Azhar Imam Rizvi v. Mst. Salama Khatoon (1995 SCMR 24) that an ejectment petition could be treated as a notice under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance, 1959 which is para materia to section 18 of the Ordinance, 1979. This view has been consistently followed by the superior Courts of Pakistan. In the case of Pakistan National Shipping Corporation (1992 SCMR 871 at 874), it was held, inter alia, by a Full Bench of Hon'ble Supreme Court while following the rule laid down in the case of Sabu Mal v. Kika Ram alias Heman Das (1973 SCMR 185), "It has, therefore, not to be strictly construed particularly issuance of notice by registered post if the tenant has positive knowledge of transfer by a simple notice or otherwise as the case may be." (Emphasis laid.) It was further observed that the tenancy is in no way dependent upon the service of notice under section 18 of the Ordinance, 1979. It is to be noted that the Supreme Court has used two phrases, namely "simple notice" and "otherwise" for the purpose of intimating a tenant about the change of ownership.

7. In the instant case, it is claimed by the respondent/landlord vide para. 1 of the application that the tenement in question was purchased through a sale‑deed dated 10‑9‑1986. It is further asserted in para. 3 of the main application that the opponent (now appellant) was informed regarding the change of ownership of the rented premises. In the written reply the claim of landlord has been disputed on the ground that the copy of sale deed was not supplied to the tenant. Again in the affidavit in evidence, the landlord has claimed in para. 4 about purchase of the tenement in question. However, ownership was not specifically denied by the tenant through his affidavit in evidence. Tenant has also filed a copy .of his plaint in Suit No. 1808 of 1987 ‑wherein he impleaded present respondent/landlord as defendant No.2 and has claimed therein that defendant No.2 (now respondent) is claiming to be owner of the tenement in question. That suit was filed on 6‑10‑1987. Tenant has also filed a copy of the counter‑affidavit of Russi H. Dinshaw filed in that suit which was brought on record as (Exh.A/4) before the Rent Controller wherein it was categorically stated by the deponent that "he has sold the premises in dispute (now rented premises) to the defendant No.2". The date of counter‑affidavit filed by Russi H. Dinshaw is 20‑12‑1987. Despite all these facts, the tenant/appellant continued depositing rent in the name of previous landlord till October, 1992 when for the first time rent was tendered in Miscellaneous Rent Case No. 1045 of 1992. These facts are not disputed by either parties.

8. It was argued by Mr. Maqsum Rizvi on the basis of rule laid down by Hon'ble Supreme Court in the case of Abdul Kadir (supra) that once the rent has been paid to the previous landlord, a tenant is not liable to repay the same to the new landlord. It is settled law that a tenant cannot be compelled to pay double rent. But in order to plead this rule a tenant is required to prove that the rent tendered to the previous landlord was prior to getting knowledge of transfer of ownership. In the case of Abdul Kadir (ibid), the rent was received by the previous landlord and the same rent was claimed by the new landlord vide his notice under section 18 of the Ordinance, 1979. In the instant case, the appellant/tenant came to know on 4‑4‑1991 when he was dispossessed in the previous proceedings that the tenement has undergone change of ownership. He also got knowledge in the month of December, 1987 that the previous landlord has sold the property to the present landlord. These are sufficient material to prove that the tenant/appellant was in positive knowledge of the change of ownership but despite that he continued to deposit rent in the name of previous landlord. Courts have always treated an application under section 15 as notice under section 18 of the Ordinance, 1979. I do not see any reason for not accepting pleadings of an earlier suit which was filed by a tenant and through which he came to know about the change of ownership as service of notice under section 18 of the Ordinance, 1979. In order to plead valid tender of rent and bona fide the tenant should have proved that the rent deposited in Miscellaneous Rent Case No.5052 of 1982 in the name of Russi H. Dinshaw till June, 1991 was withdrawn by the said landlord. Nothing has been brought on record, to prove this fact.

9. The conduct of the appellant/tenant is not above board. During previous litigation initiated by him, he gained full knowledge about the transfer of ownership of the tenement in question. Again he came to know of this fact on 4‑4‑1991 but he did not amend himself. It was only in October, 1992, that, for the first time, he tendered rent knowingly well that he was out of possession. There was no occasion to tender rent for such period. No efforts were adopted to pay the rent for the period November, 1989 till April, 1991. Even if the rent deposited by the appellant/tenant for October, 1992 in the name of present landlord is adjusted towards the period November, 1989 to 4‑4‑1991, the default has occurred and that will not wipe out the default committed by the appellant/tenant.

10. Upshot of the above discussion is that the appellant/tenant has been found to be in default in payment of rent from November, 1989 till 4‑4‑1991 and therefore, this appeal merits dismissal. Accordingly, this appeal is dismissed with no order as to costs alongwith C.M.A. 426 of 1997. The appellant/tenant is directed to deliver the vacant and peaceful possession of the tenement to the respondent/landlord within six months hereof subject to regular payment of rent. H.B.T./F-4/K Appeal dismissed.