2004 PLP 289 (CLC)

Ss. 15 & I8

Ejectment application

Notice under S; 18, Sindh Rented Premises. Ordinance, 1979-- Filing of ejectment application itself was a notice under S. 18 of Sindh Rented Premises Ordinance, 1979

No justification for tenant in not tendering rent to landlord after notice of ejectment application was served upon him. M.M. Tariq for Appellant. Khawaja Manzoor for Respondent: Date of hearings :16th March. 2000 This appeal arises from the order of the VIIIth Rent Controller, Karachi (East) dated 29-1-1999 directing the ejectment of the appellant from F. No.8-2/11, 3rd Floor F.L.5; Block 3, Gulshan-e-Erum, Gulshan-e-Iqbal, Karachi (hereinafter mentioned as demised property). The case of the respondent as set up in Rent Case 11o.498 of 1986 before the Rent Controller (wherefrom this appeal arises) seems to-be that he is tie landlord/owner of the demised property which was let out to the 'appellant at the monthly rent of Rs.2,

000. According to the respondent the property was originally owned by one Mst Kamla from whom he purchased the same in 1994. The appellant was a tenant of Mst. Kamla since about 1986: He continued to pay rent. upto September, 1996 whereafter he stopped doing so, consequently, the respondent filed the application for. ejectment of the appellant on 28--8-1996 alleging that the latter had been in default of payment of rent for 11 months, this was clone after serving a legal notice dated 13-8-1996 requiring the appellant to pay arrears of rent and the failure of the appellant to do so after receipt of such notice. 2 The appellant on the other hand denied the allegations in his written statement. He alleged that no landlord-tenant relationship existed between him and the respondent inasmuch as he was only a tenant of Mst. Kamla since 1986 and had agreed to purchase the demised property in 1995 and had paid the agreed sale consideration of Rs.1,60,000 to Mst. Kamla. Nevertheless, she failed to enter into a written sale agreement and also stopped accepting rent since October, 1995 through her estate agent i.e. the respondent. Thereafter she accepted rent through her estate agent but refused to issue rent receipt, then the appellant sent money order for Rs.6,000 to cover the period of October to December, 1995 but she refused to accept the same. She further refused to receive rent from January, 1996 to June, 1996 arid the appellant had no option but to deposit the same in M.R C. No.321 of 1996. He further contended that rent was being regularly deposited in the aforesaid M.R.C. in the name of Mst. Kamla and that he intended to file a suit for specific performance of agreement. The appellant also denied having received any notice, dated 13-6-1996 from the Advocate for the `respondent.

3. The respondent in his affidavit-in-evidence reiterated the contents of the ejectment application -and filed a copy of registered irrevocable general power-of-attorney made in his favour by Mst: Kamla which was presented for registration in-September, 1996: He also duly cross-examined and so was his witness Raja-Akram who deposed that he was awarded of the property being let out to the appellant and thereafter being sold to the respondent. The appellant examined himself in support to the contention raised in the written statement. The learned Rent Controller found that landlord-tenant relationship existed between the parties and that the appellant had defaulted in payment of rent, consequently, she ordered ejectment of the appellant from the demised property.

4. Mr. M.M. Tariq, learned counsel for the appellant vehemently argued that the question of ownership of the demised property being in dispute the Rent Controller should have required the parties to get the 'question of title adjudicated before a competent Civil Court instead of proceeding further with the ejectment application. Learned, counsel placed reliance upon a well-known judgment of the Honourable Supreme Court in Rehmatullah v. Ali Muhammad 1983 SCMR 1064. Indeed there can be no cavil with the proposition that a Rent Controller has no jurisdiction to decide the question of title to immovable .property and when there is a serious dispute, as to the same and in appropriate case it may be proper to allow the parties to get such dispute resolved before deciding the, ejectment application. Nevertheless there is no universal rule that the Controller must invariably stay his hauls from proceeding with the matter, the moment the tenant claims title to the property ox even files a suit for determination of title. This is evident from the large number of subsequent judgments of the Honourable Supreme Court including Allahyar v. Additional District Judge 1984 SCMR 714, Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1 and Iqbal and others v: Rabia Bibi PLD 1991 SC

242. Incidentally all these subsequent judgments are authored by the same learned Judge (M.A.' Zullah, J.), who wrote the leading judgment in Rehmattillah's case. It' is equally important to observe that in the instant case the appellant had claimed that the oral agreement to transfer the property to him had taken place in 1995 anti he intended to file a civil suit for specific performance, no filing of such suit was disclosed, during his cross-examination on 12-10-1998.or even in the memo. of his appeal presented on 12-2-1999. In the circumstances I find no force in the contention of the learned counsel.

5. Alternatively Mr. M.M. Tariq argued that there was no prima, facie evidence as to indicate the respondent's ownership of the demised property. The respondent had only relied upon a general power of attorney purported to be given by Mst. Kamla. Such power of attorney was registered after filing of the ejectment application and in any event did not mention any agreement to purchase that the respondent might have made. Learned counsel is indeed correct to the extent that there, is no tangible evidence on record indicating the respondent's ownership of the property. Nevertheless, Khawaja Manzoor Ahmad, learned counsel for the respondent pointed out that under the Rented Premises Ordinance a landlord need not necessarily be the owner of the property but any person authorized to collect rent can be treated as landlord and filing proceedings for ejectment in his own name. The appellant himself in his evidence has admitted that the rent was being paid to the owners Estate Agent i.e. the respondent in the following words:-- ......She refused to accept the rent of the demised premises since October, 1995 through her Estate Agent Khawaja Nazar as a flat was rented out to him through the said Estate Agent by Mst. Kantla."

6. In the circumstances the findings of the learned Rent Controller to, the effect that the respondent was a landlord in respect of the demised premises is entirely unexceptionable.

7. Finally it was urged by Mr. Tariq that the appellant did not receive any notice from the respondent to attorn to him and, therefore, lie was justified in depositing rent in M.R.C. and could not be ejected on account of default. Without going into the factual controversy it might be sufficient to say that filing of the ejectment application itself having been treated as notice under section 18, there was no, justification for the appellant in not tendering rent to the respondent after notice of the application was served upon. His failure to pay rent thereafter clearly amounts to default.

8. In the circumstances l find no force in this appeal and dismiss the same in limine. H.B.T./S-323/K Appeal dismissed.