2016 PLP 155 (CLCN)

SYED MUHAMMAD FAROOQ SHAH, J.

Common questions of law and facts are involved in all captioned petitions, which are filed by the tenants/petitioners and through special attorney, against identical judgments, dated 13.02.2014, passed by VIth Civil Judge and Rent Controller, maintained by the Appellate Court vide order dated 25.10.2014, therefore, the same are taken together.

2. Arguments heard. Record perused.

3. Perusal of record transpires that pursuant to the decree passed in Suit No.539/2011 and order dated 17.01.2012, passed in Execution Application No.19/2011, name of the respondent No.1/landlord was incorporated in Record of Rights and he has been registered as owner of the building known as "Bhatka Market", new name "Gondal Market" at plot survey No.4/2, Bandar quarters, Karachi. The respondent served mandatory notice under Section 18 of the S.R.P.O 1979 dated 16.02.2012 to all the tenants/petitioners, which was duly replied on 16.03.2012. Despite of receiving notice under section 18 of S.R.P.O 1979, the petitioners have not paid, sent or deposited the rent in favour of the new landlord/ respondent No.1 and they continued depositing the rent in the Miscellaneous Rent Application in the name of previous owner, which is against the dicta laid down in by the Hon'ble Supreme Court in the case of Pakistan State Oil Pvt. Ltd. v. Pir Jir Mohammad Naqi (2001 SCMR 1140). In the said referred case the Hon'ble Court held that where the tenant was cognizant of death of landlord and he also knew the person entitled to receive the rent yet if he deposits the rent in the name of their predecessor in interest, he can be safely found to be defaulter.

4. The point need to be considered by this Court is that as to whether as per requirements of section 18 of the Ordinance a landlord who has acquired the rights of ownership and has also become the landlord is supposed to issue a notice under registered cover to the tenant and such provision of law have been substantially complied with as record reflects that intimation about the transfer of ownership in favour of landlord (Respondent No.1) has been conveyed to the petitioners/tenants.

5. In the case of Habib Bank (Pvt.) Limited v. Sultan and others (2001 SCMR 678). The Hon'ble Supreme Court held that, "if for sake of arguments it is assumed that tenant had no knowledge about the transfer of the property in the initial round of litigation but at least when eviction application given rise to appeal was filed and respondents have asserted themselves to be landlord of the premises, the appellant "tenants" must have gained knowledge and such application can be treated to be as a notice, binding the appellants to start making payment of rent and factum of institution of application for eviction would be deemed to be substantial compliance of the provision of section 18 of the Ordinance being a convincing source as it has been held in the case of (i) "Khuda Bux v. Mohammad Yaqoob and others 1981 SCMR 179", (ii) "Syed Izhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24", (iii) "Major (Ret.) Mohammad Yousuf v. Mirajuddin and others, 1986 SCMR 751". The Hon'ble Court further held that the tenant had acquired knowledge about the transfer of ownership in favour of respondents, but the rent was not deposited in favour of the respondent, therefore, without any hesitation it was concluded that the willful default was committed by the tenant in making payment of rent. In para 10 of the said judgment, the Hon'ble Court held that "tenant has no right to demand the title documents from the landlord on receipt of notice within the meaning of section 18 of the ordinance because no sooner notice is served upon him or it is otherwise conveyed to him either in the judicial proceedings or by some other reliable sources he is bound to accept a new owner as his landlord as held in the case of Mohammad Ashraf and others v. Abdul Hameed "1982 SCMR 2373(2)" and Salman and others v. M.A. Maalik "1988 SCMR 775".

6. In such like situation where the premises in possession of a tenant has been transferred by sale, gift, inherited or by such other mode, the Sindh Rented Premises Ordinance 1979 (hereinafter referred as the Ordinance) provided the mechanism under section 18 of the Ordinance which reads as under:- Change in ownership Where the ownership of a premises in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimations should, in normal course, have reached the tenant.

7. The plain reading of section 18 of the Ordinance provides that where the ownership of the premises in possession of a tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in written by the registered post to the tenant. It also provides that the tenant shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent is due is paid within thirty (30) days from the date when the intimation should, in normal course, have reached the tenant. Section 18 of the Ordinance saves the tenant's rights because of change in the ownership of the premises on account of recognized mode of transfer. In the present case it is admitted position that petitioners/tenants have duly been served with a notice under section 18 of the Ordinance. Keeping in view the interpretation of relevant provisions of law, more particularly, the section 18 of the Ordinance, both Courts below have elaborately dilated upon the said provision of law following the judgments of the Hon'ble Supreme Court of Pakistan. Impugned judgment of the appellate Court shows that it was not mere an affirmation of the evidence recorded by the trial Court, as the appellate Court discussed the evidence of the parties in detail in light of the judgments of the Hon'ble Supreme Court of Pakistan. Therefore, it cannot be said that the High Court in its Constitutional jurisdiction can interfere even in the case of concurrent findings, which are not based on non-reading or misreading of the facts, erroneous assumptions of the facts, misapplication of law, excess of jurisdiction as the scope to interfere by the High Court is limited and this Court can not substantiate its own findings with the findings recorded by both the Courts below. In the instant case sufficient documentary/oral evidence available on record reflects that despite having knowledge of change of ownership, the petitioners/tenants did not tender or deposit rent in favour of respondent No.1. The impugned judgment appears to be recorded in detail, elaborate and for the sake of emphasis learned appellate Court tried to improve some important parts by repetition as per evidence and judgment is duly supported with case law.

8. Learned Counsel for the petitioner placed reliance on the case of Abdul Kadir and others v. Muhammad Youqub and others 1991 SCMR 1029. Facts of the cited ruling reflects that the Respondent (tenant) before the receipt of notice under section 18 of S.R.P.O., 1979, had paid the rent in favour of previous owner. In such peculiar facts and circumstances of the case, the Hon'ble Supreme Court has held that the tenant, till he was intimated under provisions of section 18 of S.R.P.O., 1979, about the change of ownership, was obliged to pay rent to his previous landlord and such payment having been made to him was in consonance of law. However, in the instant case the facts are quite different as even after service of notice in terms of section 18 of S.R.P.O., 1979, petitioner (tenant) continued depositing rent in favour of previous landlord and the petitioners/tenants have failed to pay the rent to the respondent No.1 on change of ownership, nor deposited the rent in his name. The petitioners being the tenants of the premises did not show any documentary proof during their evidence in respect of payment/deposit of rent in the name of new owner/respondent No.1 but they were continuously depositing the rent in the name of previous owner for considerable time.

9. Insofar as the assertion of petitioner in respect of plea that "Pagri" being a reality is recognized but the counsel has failed to show any evidence available on the record that any such "Pagri" was paid and if at all it had been paid, still respondent cannot be debarred from instituting eviction proceedings as question of applicability of such plea of "Pagri" under the S.R.P.O., 1979 is having no legal sanctity and the same is not recognized by the said Ordinance, therefore, the trial Court or the appellate Court was not expected to give decision on metaphysical or hypothetical question without reference to the provisions of statute applicable in the case in hand.

10. In view of whatever mentioned above, I reached at the irresistible conclusion that there cannot be any cavil to the proposition that the concurrent findings recorded by the two Court below after careful and elaborate consideration can be disturbed by this Court; more particularly, the evidence in the case in hand was duly taken into consideration by the appellate Court and it was not a mere affirmation of the finding recorded by the Rent Controller as the appellate Court discussed the evidence of parties and rightly upheld the findings of learned Rent Controller. There is neither a misreading of evidence nor appraisal of evidence by the trial Court was perverse so as to call for interference by this Court in its extraordinary constitutional jurisdiction under Article 199 of the Constitution, more particularly, Constitution Petition may not be considered a substitute of second appeal against the orders passed in FRA. Resultantly, the captioned petitions having no merits for consideration, are dismissed but with no order as to costs. ZC/U-4/Sindh Petitions dismissed.