P L D 1995 Supreme Court 415 (PLP)

$AIDUZZAMAN SIDDIQUI, J.

The above appeal by the leave of this Court is filed by the appellant/tenant against the judgment of a learned Judge in Chamber of Lahore High Court dated 7-4-1993. By the impugned judgment the learned Judge accepted FA.O. No.189 of 1990 filed by the respondent and after setting aside the order of Rent Controller dated 19-6-1990 dismissing the ejectment application of respondent, granted ejectment decree in favour of respondent on the ground of default in payment of rent. The relevant facts of the case are that appellant is the tenant of Shop No.E-3/1, Street No.6, Zaman Colony, Walton Road, Lahore. The shop was let out to the appellant by Muhammad Farid Qadri at the rate of Rs.150 per month. The said Muhammad Farid Qadri filed an ejectment case against the appellant on 9-3-1985 on grounds of default in payment of rent, personal requirement and subletting of the shop. The Rent Controller by order dated 2-5-1988 dismissed the above ejectment case filed by Muhammad Farid Qadri. Muhammad Farid Qadri filed an appeal before High Court against the order of Rent Controller dated 2-5-1988 which was finally dismissed for non prosecution on, 28-1-1990. During the pendency of the appeal filed by Muhammad Farid Qadri, before the High Court the respondent instituted a fresh ejectment case against the appellant on 31-7-1989 on grounds of default, personal requirement and subletting of the shop by appellant. The Rent Controller dismissed the ejectment case on all grounds by order dated 19-6-1990 but on appeal a learned Judge in Chamber though maintained the decision of Rent Controller on the issue of personal and bona fide requirement and subletting of shop but reversed the decision of the Rent Controller on the issue of wilful default in payment of rent and consequently granted ejectment' of appellant from the premises. Leave was granted against the judgment of the ,A learned Judge in Chamber to examine the validity of the ejectment order on the ground of wilful default in payment of rent. The respondent claimed to have become the owner of the shop in possession of the appellant by virtue of a gift deed dated 8-9-1985. This transfer in favour of respondent had taken place during the pendency of the ejectment case which was instituted by Muhammad Farid Qadri against the appellant on 9-3-1985. In spite of the fact that the shop in occupation of the appellant was transferred by way of registered gift deed by the previous owner in favour of the respondent, this fact was never disclosed during proceedings of the ejectment case instituted by Muhammad Farid Qadri. Not only that, the rent proceedings were pursued by the previous owner Muhammad Farid Qadri against the appellants before the Rent Controller until its dismissal by order of the Rent Controller dated 2-5-1988. Muhammad Farid Qadri challenged the order of Rent Controller dismissing ejectment case against the appellant before the High Court in appeal which remained pending until 28-1-1990 when it was dismissed for non-prosecution. Apart from it, the appellant has produced before us a copy of the application moved by him before the Rent Controller on 2-11-1989 in which he sought permission of the Court to deposit the rent on the ground that the previous landlord has been pursuing ejectment case against him and as such he is not sure as to which of two persons is real landlord of the premises. In addition to it, the Rent Controller in his order dated 19-6-1990 referred to the notice dated 28-10-1989 served on the appellant by the Advocate of the previous landlord in which the appellant was called upon to pay the rent of the premises at the rate of Rs.150 per month and there was no disclosure about transfer of the shop by the previous owner in favour of the respondent. In these circumstances, the Rent Controller rightly reached the conclusion that the appellant could not be held to be the wilful defaulter in payment of rent as he was depositing the rent in the name of the previous owner Muhammad Farid Qadri under the bona fide impression. The learned Judge in Chamber, however, has relied on the case Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24 and Maj. (Retd.) Muhammad Yousaf u. Mehraj-ud-Din and others 1986 SCMR

751. In the first-noted case ' which arose under the provisions of West Pakistan Urban Rent Restriction Ordinance,(VI of 1959), no notice for transfer of ownership was given to the tenant as required under section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959. However, it was held in that case that upon service of the notice of ejectment application, the tenant became aware of the transfer of the premises in favour of the landlord and therefore after service of the said notice there was no justification for withholding the rent of the premises. The facts of the present case are, however, quite distinguishable. In the case before us the previous landlord in spite of transfer of the premises in favour of the respondent in 1985 continued to assert right of ownership over the shop by instituting and pursuing ejectment case against the appellant. Not only that, he at no stage of the proceedings of the case before the Rent Controller disclosed that the property has been transferred by him in favour of the respondent through a registered gift deed. In addition to it, when the Rent Controller dismissed the ejectment case in 1988, he did not remain-content with that but filed an appeal against the order of dismissal of his ejectment case by the Rent Controller before the High Court which remained pending until 28-1-1990. It is, therefore, quite clear that in the present case in spite of transfer in favour of the respondent previous landlord continued to assert his right of ownership until 1990. During all this period present respondent did not serve any notice on the appellant calling upon him to pay the rent of the premises. In the second noted case of Muhammad Yousaf v. Mehraj-ud-Din and others, supra, also no notice of transfer, as required by section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 was served by the transferee landlord on the tenant. However, the tenant did not offer or make effort to pay rent even after service of notice of ejectment case, which was treated as a notice under section 13-A ibid. Therefore, in both the above cited cases, the tenants acted in a contumacious manner after receiving intimation about transfer of the premises in their respective possession. In the present case, the conduct of the appellant did not show any contumacy after being informed- of the change of the ownership. In fact, when he was served with the notice of - ejectment case instituted by respondent, the previous landlord was pursuing ejectment case against him before the High Court. Notwithstanding the pendency of ejectment case against him instituted by the previous landlord, he moved the Rent Controller for permission to deposit the rent in the case instituted by respondent stating the entire fact. The Rent Controller, therefore, rightly held that in these circumstances, the appellant 6 could not be treated as wilful defaulter in payment of rent if he deposited the rent in favour of previous landlord. The learned Judge in Chamber, therefore, was not correct in reversing the finding of the Rent Controller on the issue of default in payment of rent. We, accordingly, allow the appeal and set aside the judgment of the learned Judge in Chamber. The ejectment application filed by the respondent is, accordingly, dismissed. However, we will make no order as to costs, _ as the respondent did not appear and defend the case. AA./J-129/S Appeal accepted