1986 PLP 1878 (CLC)

After hearing the learned counsel for the parties, the appeal was dismissed with no order as to costs by short order, dated 21‑4‑1986 for reasons to be recorded separately. Following are reasons in support of the said short order. As has been pointed out above, the ejectment application filed by respondent /landlord has been allowed by the impugned order only on the ground of default in payment of rent. The plea raised by the appellant right from the beginning when he filed the written statement was that no relationship of landlord and tenant exists between him and the respondent. According to the appellant, no notice under section 30 of Displaced Persons (Rehabilitation and Compensation) Act, 1958 was given to him and, therefore, he was not aware if the premises in dispute had been transferred to the respondent. Thus it is clear from the written statement that the appellant has not paid any rent to the respondent/landlord until the institution of the ejectwent application and thereafter. In this connection reference was made to the Supreme ; Court authority reported as Amanuliah Khan v. The Chotey Khan 1978 a S C M R 14 wherein it was held:‑ "However, it will not be necessary to examine the validity of the reasons given for and against the view for the case as it stands, it is an admitted position that the petitioner has defaulted in the payment of rent as he did not accept the respondent as his landlord. On this view of the matter it would not have served any purpose to remand the case for the issue of default could not have been disputed." In view of the above authority, if the tenant's plea of non‑existence of relationship of landlord‑tenant between the parties, is decided against him, it would not be necessary to look for further proof as to his default in payment of rent. This is because when the tenant does not recognize the other party as his landlord, he thereby indirectly admits that he has paid no rent to him. Consequently if in the instant case it is held that the relationship of landlord‑tenant exists between the parties it can automatically be held that the appellant has made default in payment of rent and therefore, is liable to be evicted from the disputed premises. As has been stated above in view of the appellant's plea challenging the relationship of landlord‑tenant between the parties, the learned Rent Controller had framed a preliminary issue, which, after considering the evidence provided by both the parties, was resolved by him by his order, dated 25‑4‑1982. The operative part of the order records as under:‑ "In the circumstances I have no hesitation in holding that there exists a relationship of landlord and tenant between the parties." Thereafter the parties were allowed to lead evidence on other issues. The ejectment application was ultimately allowed on the ground of delay . in payment of rent. In course of his arguments, the learned counsel for the appellant reiterated that the appellant was totally unaware of the transfer of the disputed premises to the respondent as neither notice under section 30 of Displaced Persons (Rehabilitation and Compensation) Act, 1958 was served on him nor any notice under the relevant rent law was issued to him. His contention was that the conclusion arrived at by the learned Rent Controller on the preliminary issue was therefore, erroneous and could not be sustained On the other hand the learned counsel for the respondent /landlord frankly conceded that no notice under any law was ever given by the respondent to the appellant. However, his argument was that after repeal of the evacuee laws, notice under section 30 of 1958 Act was not called for. According to him since the ejectment application was filed on 14‑7‑1979, much after the repeal of evacuee laws in 1974, the appellant was not entitled to any notice under section 30 referred to above. In support of his contention learned counsel placed reliance on Muhammad Ramzan v. Ch. Bashir Ahmeu P L D 1981 S C 340 wherein it was held:‑ "The petitioner was not entitled to a notice nor the protection and the respondent was not under any liability to send such a notice to the petitioner before filing the eviction petition, because the Displaced Persons (Compensation and Rehabilitation) Act of 1958 having been repealed, it was not necessary." It is clear from the above authority that following the repeal of the evacuee laws including the 1958‑Act the protection available to the tenant under section 30 of the latter Act was taken away and as such it was not necessary to serve him with a notice under section 30 before seeking his eviction from the disputed premises. However, the learned counsel for the appellant contended that even if the notice under section 30 was 'not necessary, the appellant/ tenant was entitled to the notice under section 13‑A of the Rent Ordinance so as to intimate him about the change of ownership of the disputed premises. In support of this argument, he placed reliance on Maryam Fernandes v. State Life Insurance Corporation of Pakistan, Karachi PLD 1981 Kar. 591 wherein it was held that service of notice under section 13‑A of the Rent Ordinance was mandatory requirement. Similarly in another case reported as Saboomal v. Kikaram alias Hemandas 1973 SCMR 185 it was held:‑ , "The language implied in section 13‑A of the Ordinance makes it abundantly clear, that it only deals with one situation, namely, the question of default in the payment of rent. If the prescribed notice is not given by the transferee landlord then the tenant shall not be deemed to have defaulted in the payment of rent for the purpose of clause (1) of subsection (2) of section 13 of the' Ordinance and as such default will arise only if the rent is not paid within thirty days from the date of the notice." It emerges from above authorities that notice under section 13‑A of the Ordinance was necessary or else it would not be possible for the tenant to know as to whom he was supposed to pay the rent. Therefore, the object underlying the notice under section 13‑A of the Ordinance is to intimate the tenant about his new landlord to whom he is required to pay the rent. It is an admitted position that no notice In writing has been issued to the appellant in the instant case. However, the learned counsel for the respondent contended that if the tenant of the knowledge and the information about the change of ownership the disputed premises and consequently he knows as to who is his new landlord entitled to collect the rent from him, service of formal notice in such case is merely a formality which can be dispensed with. In support of this argument the learned counsel relied upon Syed Imam Rizvi v. Mst. Salma Khatoon 1985 S C M R 24 wherein following observations were made:‑ "The learned counsel was unable to deny that the petitioner had received the notice and copy of the ejectment application through registered post. Even if the same were not so received by him the fact remains that the receipt of the ejectment application is not denied. It is also not denied that in 1978 the petitioner became aware of the sale made in favour of the respondent. It is also a fact that on account of the said sale the issue regarding relationship of landlord and tenant was decided by the learned Rent Controller in favour of the respondent in October, 1979. In these circumstances the failure of the petitioner to offer the rent to respondent/ landlady even after October, 1979 was without any justification. The mere fact that the application for his ejectment was pending or that an order under section 13(6) had not yet been passed would not absolve him of his duty under the Rent Restriction Law to pay/offer the rent to the landlady each month on time. The argument that he was permitted by law to withhold payment of rent till an order is passed under section 13(6) by the Rent Controller is neither supported by statute nor any principle. It is also not correct that after the admission by the petitioner that he had received a copy of the ejectment application 1976 wherein the factum of sale in favour of, the respondent, had clearly been mentioned, he was entitled to any other formal notice under section 13‑A. The receipt of the copy of the ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of section 13‑A of the Ordinance." On the basis of the above authority it was submitted by the learned counsel for the respondent that since the issue with regard to relationship of the parties was resolved on, 25‑4‑1982, the appellant/tenant had the notice on the said date that the respondent was his landlord and, therefore, he had to pay the rent to him. However, it is not denied that even from the above date no rent was paid or deposited by the appellant, and therefore, his failure to pay the rent from the date of decision as regards relationship of parties was sufficient to seek the appellant's eviction from the disputed premises. Thus, the above Supreme Court authority is applicable in the instant case. It is clear from the said authority that during the pendency of the ejectment proceedings if the tenant comes to know about his new landlord he has to pay rent from the date of such knowledge and that he will not be absolved from such responsibility only because the learned Rent Controller had not passed any tentative order calling upon him to deposit the rent in Court. Apart from above it is the appellant's own admission that although initially he used to pay the rent to the Custodian Department, yet from 19ad he did nut pay rent to anyone. He has given no explanation for stopping the payment of rent. to the said Department. If he thought that the Custodian Department was no longer entitled to receive rent even then he was to ascertain as to who was actually entitled to accept the rent. ,But he made no such effort. According to the averment made by the respondent/landlord in his ejectment application, the premises in dispute was purchased by him in auction on 17‑4‑1968 and P . T . D . was issued in his favour on 4‑3‑1969. May be that after the appellant came to know that the premises in question were transferred 'to the respondent he stopped paying the rent to Custodian Department. The appellant was liable to pay rent to the respondent from the date he came to know about his ownership of the premises even if no notice was given to him. In any case he gained such knowledge at least from the date on which the preliminary issue was decided against him. Therefore, he should have started paying the rent to the respondent from that date. Despite that admittedly he did not pay any rent to him. Therefore, the learned Rent Controller has correctly held him defaulter and the ejectment application has been rightly allowed. In view of above discussion, I see no justification to interfere with tire order of the lower Court and as such the appeal was dismissed by short order as mentioned above. The appellant will handover vacant possession of the disputed premises within two months. A.A. Appeal dismissed.