2004 PLP 344 (YLR)

Following issues were framed by the Rent Controller:-- (1) Whether the opponent No. l (respondent No. 1) has committed default in payment of rent from 1st July, 1996 and up to 6th October, 1996? (2) Whether the opponent No .l (respondent No. l) has sub-let the premises in question to the opponent No.2 (respondent No.2)? (3) What should the decree be? After conclusion of case, the learned Rent Controller decided Issues Nos.1 and 2 in negative and dismissed the ejectment application on 16-10-1999. Being aggrieved by that order the respondent No.1 filed First Rent Appeal in this Court, being First Rent Appeal No.637 of 1999. During pendency the respondent No.1 dropped Issue No.2 i.e. subletting. Later on the amendment came and the first rent appeal was transferred to District Judge, Karachi South which was subsequently heard by learned Vth Additional District Judge, Karachi South. The only issue of default was argued as issue of sub-letting was already dropped by respondent No.1. The Appellate Court by its order dated 28-10-2002 allowed the appeal and reversed the finding of Rent Controller on the issue of default and ordered the petitioners to vacate the premises within 60 days from the date of order. The said order is challenged through this Constitution petition. I have heard Mr. Irtiza Hussain Zaidi learned counsel for petitioners. He argued that since the notice under section 18 of Sindh Rented Premises Ordinance, 1979 was not served upon the petitioners, either by Mst. Zulekha or by Mst. Sofia therefore, the ejectment application was not maintainable. He submitted that the rent case was filed hN Mst. Zulekha and not by the present applicant/ respondent No. 1, therefore, the ejectment order was without lawful authority. He stated that Shahid Mahmood was attorney of Mst. Zulekha and not of respondent No.1. His evidence was of no evidentiary value. The petitioner No.1 tendered money order after the Rent Collector refused to collect the rent. `Evidence of Rent Controller Shahid was recorded on 17-7-1998 when he was attorney of Mst. Zulekha and not the present landlady. He placed reliance upon the cases of Muhammad Nawab and 4 others v. Postmaster General. Karachi and 2 others 1990 CLC 1708; Ghayasuddin Ahmed v. Abdul Wali 1986 CLC 1513 and Mubarikr alias Mubarik Hussain and 3 others v. Mst. Soofia Aftab 1997 MLD

923. Mr. Akhtar Hussain Qureshi submitted that no plea of notice under section 18 of Sindh Rented Premises Ordinance, 1979 was raised in written reply of petitioners and no such issue was framed by the trial Court. He states that notice under section 18 was not necessary as the relationship was already admitted the petitioners have filed rent receipt up to tune, 1996 and thereafter he failed to payment to the landlady. The present landlady purchased property, in August, 1998 and vas joined as applicant in the year 1999. Since the petitioner No.1 failed to pay rent from July, 1996 to October,1996, therefore, he committed default during the period when Mst. Zulekha was his landlady. He paid rent to her. The alleged money order was sent in October, 1996 when the default had already accomplished. It is well settled that if the ejectment proceedings are pending on the ground of default and during that pendency if the property is sold, the purchaser/transferee can continue to prosecute such proceedings for his benefit. The reference is made to the cases of Mazharul Islam v. Mst. Mafia PLD 1991 SC 835; Ghayasuddin Ahmed v. Abdul Wali 1986 CLC 1513; Mubarik Shah alias Mubarik Hussain and 3 others v. Mst. Soofia Aftab 1997 -MLD 923 and Mehar Khan v. Jamil Ahmed Khan and another 1989 CLC

853. Perusal of record shows that against the order passed by Rent Controller, the respondent No. l filed first rent appeal in this Court and her counsel did not press Issue No.2. The point of sub letting was not pressed by the learned counsel. The only issue to be resolved was of default. The cross-examination of Rent Controller Shahid Mahmood the nephew of landlady in his cross-examination stated as under:-- "I have received the rent in May 1996, June, 1996 in advance. It is incorrect to suggest that I did not approach to receive the rent for the month of July, 1996 and onwards. Voluntarily says that I approached to the opponent number of times in order to receive the rent. I had gone to receive the rent from the opponent No.1. It is incorrect to suggest that on 20th September, 1996 I had not gone to receive the rent at the shop. No money order was sent by opponent No. l to the applicant after July, 1996. It is not in my knowledge that the rent of the shop in question is continuously being deposited in the Court in the name of Fahmida and Zulekha. " The above piece of deposition' demonstrates that the petitioner No. l was depositing rent in the name of Mst. Zulekha but yet he wants to take benefit of notice under section 18, Sindh Rented Premises Ordinance, 1979. The petitioner No.1 examined his attorney Muhammad Siddique who has stated in his cross-examination as under:-- "It is incorrect to suggest that opponent No.1 knows that the property in question was transferred in the name of Mst. Zulekha, present applicant. It is correct that Shahid Mehmood, Rent Collector received the rent from July, 1995 to June, 1996. It is correct that Shahid Mehmood started to collect the rent from June, 1995 on behalf of the applicant. I do not remember whether I have paid the rent of May and June, 1996. I have not filed any receipt of rent after June, 1996 in the name of Mst. Zulekha. I have not filed the receipt of August and September, 1996. I have not filed any receipt from July, 1996 up to April, 1997. It is correct that I had sent the money order to Zulekha amounting to Rs.8,800 dated- 14-4-1997 and produce it as Exh.O./2. Second money order was also sent to Zulekha. I do not know when I paid the rent to the present applicant." Cross-examination of attorney of petitioner No. l indicates that the relationship was admitted and the petitioner No. l was paying rent to Mst. Zulekha the previous landlady. He paid the rent up to June, 1996 and thereafter he stopped paying rent up to October, 1996. Thereafter he sent money orders in the year 1997 and started depositing rent in M.R.C. The report of Nazir of Rent Controller reveals that the rent was deposited in M.R.C. No.654 of 1997 on 10-5-1997. The default had already completed. The pleas which are agitated before me had already been considered by the Appellate Court. The petitioner No.1 wants to take benefit of technicality of notice but the record shows that he was earlier paying the rent after sufficient notice and recognition of Mst. Zulekha as landlady and he stopped paying rent in July, 1996. He failed to produce any document to show that he paid the rent from July, 1996 to October, 1996. The default in payment of rent was committed and then Mst. Zulekha filed ejectment application. The arguments that present applicant Sofia cannot take benefit of that default has no force. It is settled principle that if during pendency of ejectment proceedings on the ground of default the property is sold, the purchaser/transferee can continue to prosecute such proceedings for his benefits. Reference can be made to a case of Mazharul Islam and another v. Mst. Mafia PLD 1991 SC

835. It is observed by their lordships as under;

"Having held that there was no assignment of the arrears of rent by the previous owner of the property in question in favour of the respondent under the sale-deed, the question arises, whether ejectment could be sought on the ground of default in respect of the above period by the respondent. It seems to be a well-settled proposition of law that if during the pendency of the ejectment proceedings on the ground of default the property is sold, the purchaser/transferee can continue to prosecute such proceedings for his benefit." No misreading or misappreciation of evidence has been pointed out. No legal point has been raised before me except that the notice under section 18 was not served but the record shows that the relationship was not denied and he was paying the rent to new owner. The judgment of learned Appellate Court is sound and well founded which does not need any interference under Constitutional jurisdiction. The petition was dismissed by a short order dated 19-8-2003. These are the reasons for the same. M.H./Y-32/K Petition dismissed.