1989S64 (PLP)

NAIMUDDIN, J.‑‑In this appeal by leave the dispute relates to Plot No.7, Sector 27, Korangi Industrial Area, Karachi of which the appellant claims to be the landlord and the respondents the tenants in the following circumstances: The appellant filed an application on 1‑8‑1975 under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 for eviction of the respondents claiming them to be the tenants of the aforesaid property on a monthly rent of Rs.1,400 on the ground that they had defaulted in payment of rent from 1‑4‑1975 to 31‑7‑1975. The respondents, in their written statement, by way of preliminary objection, denied that they were tenants and pleaded that the appellant had agreed to sell the property to them for a consideration of Rs.1,05,000 by an Agreement of Sale executed between the parties on 7‑2‑1973 (Exh.5‑E) and they had paid a sum of Rs.10,500 at the time of execution of the Agreement of Sale, and further sum of Rs.25,000 later on. On merits they denied that they had defaulted in the payment of rent.

2. The Controller framed a preliminary issue as to the relationship of landlord and tenant between the parties; and relying on the terms of the Agreement of Sale; part payment of consideration and the provisions of section 53‑A of the Transfer of Property Act, decided the same against the appellant by order dated 9‑9‑1976 and accordingly dismissed the application observing that the parties could move the Civil Court under the circumstances of the case.

3. Aggrieved by the order the appellants preferred an appeal with IVth Additional District and Sessions Judge at Karachi. being Rent Appeal No.422 of 1976 which met the same fate. The Additional District and Sessions Judge, in his order dated 25‑4‑1978 also relied on the Agreement of Sale and part payment of consideration. Still aggrieved by the two orders the appellant filed second appeal in the High Court of Sind at Karachi, being Second Appeal No.182 of 1978 which too was dismissed by a learned single Judge by judgment dated 16‑1‑1986.

4. Leave was granted by order dated . 12‑6‑1986 in , view of paragraph 7 of the Agreement of Sale dated 7‑2‑1973 and receipt dated 11‑7‑1975 which show that the respondents had received and adjusted the amount of earnest money and part payment of Rs.35,500 (Rupees thirty‑five thousand and five hundred) under the Agreement of Sale; and the contention that the vendees/respondents had failed to complete the sale and in terms of paragraph 7 of the Agreement of Sale (Exh.5‑E) the contract stood cancelled and the relationship of landlord and tenant thus continued.

5. We have heard Mr. Akhtar Mahmood, Advocate‑on‑Record for the appellant and Mr Malik Muhammad Saeed. Advocate for the respondents.

6. Two points require consideration; the first is whether the relationship of landlord and tenant between the parties was restored in view of the terms of the agreement (Exh.5‑E) and the Receipt (Exh.5‑D); and what is the effect of the provisions of section 53‑A of the Transfer of Property Act. Taking up the first point, it may be convenient if the relevant terms of the agreement are quoted here. These are contained in clauses 6 and 7, which read as follows: "(6) That the vendor shall make out a valid, clear and marketable title of the said property, obtain and get the completion plan and lease deed of the said plot property in his favour from KDA at his expenses, obtain Income‑tax Clearance Certificate and all the necessary certificates at his expenses. and execute and register the conveyance deed of the said property favour of the vendees within about 3 months from the date of this agreement. (7) It is further agreed that in case the vendees fail to complete the sale by 30th April, 1973, this agreement shall stand terminated and in such an event, all amounts paid by vendees, to the vendor, shall be treated as advance payment toward the rent of the entire property the rent whereof is hereby fixed at Rs.1,400 p.m. which amount is inclusive of rent of the first half portion rented out to the vendees at Rs.950 p.m. In the event of failure on the part of the vendor to complete the sale the vendees shall be entitled at their option, to sue for specific performance of the agreement and/or damages according to law." It will be seen that under clause (6) of the agreement the appellant was required to obtain the completion plan and the lease deed of the property from KDA at his expense; income‑tax clearance certificate and all other necessary certificates and to execute and register the conveyance deed of the property in favour of the respondents within 3 months of the date of agreement i.e. by 7‑5‑1973. Under clause (7) thereof the respondents were required to complete the sale by 30‑4‑1973 and on failure on his part it provides that the agreement shall stand terminated and in such a case all the amounts paid by him to the appellant shall be treated as advance payment towards the rent of the entire property. It may be mentioned that the front portion of the plot of land was already in possession of the respondents as tenant on monthly rent of Rs.950 p.m. as stated in the agreement and possession of the back portion of the plot of land was to be delivered to the respondents one month after receipt of Rs.25,000 which was done. The agreement further provided that the rent of the entire property will be Rs.1,400 p. m. including the rent of Rs.950 p.m which the respondents were already paying to the appellant as tenant of the front portion of the plot. The appellant sent a notice (Exh.5‑A) dated 25‑4‑1973 informing the respondents that the lease deed and completion plan, income‑tax clearance certificate have' been obtained for the purpose of executing the sale‑deed and registration before the Sub‑Registrar. The notice was sent by registered post with acknowledgment due. The receipt and acknowledgment due receipt are Exh.5‑B and Exh.5‑C.

7. The main reason which prevailed with the Controller in holding that there was no relationship of landlord and tenant between the parties was that the applicant had not produced all those documents which were required to complete the sale so that the Court could have seen the documents and ascertain whether the same were prepared in time. The case of the appellant before the Controller was that he had shown the documents to the Advocate of the respondents and had also served the respondents with the notice but they failed to get the sale‑deed registered, and, therefore, he adjusted the amount towards the rent @ Rs.400 per month as per clause (7) of the agreement. In this regard the Controller accepted the statement of the respondents that they had no advocate at that time, and, therefore. held that the question of showing the documents to the Advocate did not arise. The Controller also found that the appellant had failed to prove the service of notice as the acknowledgment due receipt does not bear the signature of the respondents. The appellant had produced the postal receipt (Exh.5‑B) and the acknowledgment due receipt. 7‑A The learned Additional District Judge allowed the documents to be produced by the appellant at the appellate stage but the sole reason which prevailed with the Additional District Judge for rejecting the appeal was that the appellant had not obtained the permission of the KDA as required by clause (19) of the lease deed executed between the appellant and KDA which plea was not raised in the written statement.

8. The High Court, however, dismissed the appeal mainly relying on section 53‑A of the Transfer of Property Act.

9. A part from question whether the appellant had shown the documents to the Advocate or nor it is proved that the appellant had served the notice dated 25-4-1973 (Exh,.5-A) requesting the respondents that they should get the date for registration from the office if the registrar , Karachi , and intimate to the appellant reminding them that the last date was 30-4-1973 . in this very notice the appellant completion plan and income-tax clearance certificate of the plot for the purpose of executing the sale-deed. This notice was send by registered post the receipt where of was acknowledged vide receipt by making endorsement received registered letter addressed to M. Y Hashim as the envelope was addressed to one of the partners though in the notice names of all the partners and their firm were mentioned. it may be mentioned theat the address given in this notice (Exh. 5-A) and the postal receipt was the same as was given in the eviction application (Exh.p/1-2)I-e 4th floor , Haji Adam chamber, New Chali, Karachi. Respondents' plea that they had not received the notice is not correct as the acknowledgment receipt shows that it was duly received at their address on their behalf. On the principle embodied in section 26 of the West Pakistan General Clauses Act, 1956 it can be held that service of notice was affected as it was properly addressed and was sent by registered post. In such circumstances the burden was on the respondents to prove that they did not receive the notice, which they failed to discharge. Even otherwise if the respondents were ready and willing to complete the sale, they should or would have requested the appellant to complete the sale but no such letter or convincing evidence was produced. 9‑A . As regards the reason, which prevailed with the District Judge, it would suffice to mention that this was not the case of the respondents. This was a new plea and ought not to have been entertained in the absence of specific pleadings.. Further, the respondents were not willing to perform their part of the contract

10. Now dealing with the provisions of section 53‑A of the Transfer of Property Act it may be observed that these provisions of law could be pressed into service only when the respondents had paid the entire amount of sale consideration by 30- 4-1973 as required under clause (7) of the agreement (Exh.5-D). Further, on failure of the respondents to pay the balance amount of consideration by 30‑4‑1973 in accordance with clause (7) of the agreement , the appellant sent them a statement of accounts entitled Receipts (Exh.5-d) which reads as follows:‑ "Received from Friends Match Works the sum of Rs.670 (rupees six hundred seventy only) as part payment for the month of February, 75 and Rs.1,400 (rupees one thousand four hundred only) for the month of March, 1975 on account of rent of Plot No.7 Sector 27, Korangi Industrial Area, Karachi. And also received in 1973 Rs.10,500 (rupees ten thousand five hundred only) under clause No.2 of agreement dated 7‑2‑1973 and Rs.25,000 (rupees twnty‑five thousand only) under clause No.7 of the agreement dated 7‑2‑1973 total Rs.35,500 (thirty‑five thousand five hundred only). Rent from February, 1973 to January, 1975 totalling 24 months of Rs.1,400 23,600 Add. Betterment tax of 1973‑74 and 1974‑75 11,170 34,770 (Rupees thirty‑four thousand seven hundred seventy only). The balance of Rs.730 have been deducted in the month of February, 1975 as stated above. 730 nil (Sd). Rashid Ahmad Barry." This statement was received by Hashim who was a partner of the firm on 11‑7‑1975. Even after the receipt of this statement the respondents neither showed their willingness to complete the sale nor offered to pay the balance amount of consideration; nor objected to the statement, as there is no document on the record to that effect.

11. It was argued by Mr. Akhtar Mahmud that the relationship of landlord and tenant between the parties was restored on failure of the respondents to pay the balance amount of consideration by 30‑4‑1973 and the provision of section 53‑A of the Transfer of Property Act provided no defence as the respondents had not paid the balance of the sale consideration. He is right. In view of the Statement of Account/receipt quoted hereinbefore, which was received by the respondents without any objection or demur and also in view of clause (7) of the Agreement of Sale the relationship of landlord and tenant between the parties was prima facie restored and the provision of section 53‑A of the Transfer of Property Act provided no defence as the respondents failed to perform their part of the contract by paying the balance amount of consideration within the agreed time nor did willingness to do so. It may be of advantage if we quote a passage from the Transfer of Property Act by mullah p.389 (seventh Edition) and cases relied upon therein in support. It reeds as follows: The section confers no rights on a party who was not willing to perform his part of the contract. A prospective vendee who had taken possession could not resist dispossession if he were not willing to pay the price agreed upon. (t) Bechardas v. Ahmedabad Municipality (1941) AR 346, Suleman v. Patel (1233) 35 Bom. LR 722, 145 1C 557 ('33) AB 381 not followed. So also a person who falsely pleads that he has paid the full consideration for the transfer and is found not to have paid a part of the consideration is not entitled to the benefit of the section..." We, therefore, hold that the relationship of landlord and tenant between the parties was prima facie restored or re‑established and the appellant's application under section 13 of the Sind Rent Restriction Ordinance, 1959 was maintainable. Accordingly, we allow this appeal and set aside the impugned orders and remand the case to the Controller for decision on merits The parties are left to bear their own costs. M.B.A./R‑97/S Appeal allowed.