P L D 2008 Karachi 126 (PLP)

DR. RANA MUHAMMAD SHAMIM, J.

The petitioner has filed this petition against the judgment dated 28-5-2007 passed by learned IV-Additional District Judge Karachi East in F.R.A.. No.100 of 2006 'whereby he dismissed the same and maintained the order dated 24-4-2006 passed by learned V-Senior Civil Judge and Rent Controller Karachi East in Rent Case No.228 of 2003. Succinctly the facts of the matter are that the respondent has filed ejectment application against the appellant stating therein that she has purchased the demised premises i.e. Shop No.2, Plot No.15-C, Central Commercial, Tariq Road, Block-2, PECHS, Karachi, from Hassan Ara Begum, however, the appellant failed to pay rent to her and only paid the rent up to May, 2002 to the previous owner at the rate of Rs.3,

025. She further alleged that the appellant has impaired the value of the demised premises by removing a wall thereby making a way to an adjacent property. Hence she filed ejectment application. The appellant in his written statement refuted the claim of the respondent as to the default as well as removing the wall. He took the plea that the respondent is not the owner of the demised premises and he paid the monthly rent to Mst. Hassan Ara up to May, 2002 thereafter she refused to accept the same and asked the appellant to either enhance the rent or purchase the demised premises and as such the appellant started depositing rent in M.R.C.No.168 of 2002. The appellant has also denied to have received the notice under section 18 of Sindh Rented Premises Ordinance, 1979. Both the parties led their evidence and the learned trial Court after hearing learned counsel for both the parties, decided the issue as to impairing the value of the property against the respondent, however, decided the issue of default in favour of the respondent and thus ordered for ejectment. Appeal against the same was dismissed vide impugned judgment, hence this petition. I have heard the learned counsel for both the parties and with their assistance have gone through the material placed on record. Since both the learned counsel have argued the matter at length, I propose to decide this petition at Katcha Peshi stage. Learned counsel for the petitioner during the course of his arguments has reiterated the grounds taken in the petition which pertain to the service of notice under section 18 of Sindh Rented Premises Ordinance, 1979 and as to the relationship .of landlord and tenant. However, from the perusal of the impugned order passed by the Appellate Court, the learned Appellate Court has in fact accepted all the pleas taken by the petitioner except non-payment of the rent after knowledge of the change of ownership. The relevant portion of which is reproduced as under:-- " In case the tenant come to know about the change of ownership he is bound to offer rent to new owner without fail. In this case, the respondent landlady through her affidavit-in -evidence produced sale-deed dated 22-5-2002 (Exh.A-2) The said affidavit-in-evidence was filed on 18-7-2003 but the copy whereof was received by the appellant's counsel on 18-12-2003. Even if the date of knowledge be considered from 18-12-2003, the appellant was bound to offer rent within thirty days but at the first instance, the appellant kept him indulged in useless exercise by moving an application under Order I, Rule 10, C.P.C. in M.R.C.No.168/2002 and after dismissal of that application remitted the rent through money order on 21-9-2004 (Exh.0/57), and upon refusal he deposited the rent in MRC No.236/2004. The appellant did not have any valid reason to remit/deposit the rent belatedly to new owner when the due time for same had already gone past..." He relied on a case of Gulzar Begum v. MM. Sairah Bibi 1972 SCMR 251 and submits that serving of notice under section 18 Sindh Rented Premises Ordinance, 1979 is mandatory and violation of it is condonable. The learned advocate for the respondent submits that the notice under section 18 of Sindh Rented Premises Ordinance, 1979 was duly served upon the .tenant. No doubt the service of notice upon the tenant/appellant was denied by him and even after instituting the ejectment application and on receipt of its notice the appellant has neither started paying rent to the 'respondent nor deposited in her name. In support of it, he relied upon a case of Pakistan National Shipping Corporation v. Messrs General Services Corporation 1992 SCMR

871. He further submitted that in view of the above the only controversy remains to be that the petitioner as per his own admission came to know about the change of ownership on 18-12-2003 while the rent tendered to the respondent is on 21-9-2004 and thus committed default. The contention of the learned counsel for the petitioner that such default is technical in nature and not the wilful or intentional is not supported by any case-law. I have heard both the counsel of the parties, perused material on record and gone through the case laws referred by both the learned advocates for the parties. The case of Gulzar Begum (supra) on which reliance is made by the petitioner's counsel is not relevant and supports 'him whereas the case of Pakistan Shipping Corporation (supra) relied by the learned counsel for the respondent is applicable and supports her case. He submits that the provisions of section 18 of Sindh Rented Premises Ordinance, 1979 are not to be strictly construed. It is relevant only for the purposes of filing ejectment application by the new landlord. The object is to intimate the tenant about the transfer of property in the name of new landlord, so that the rent is to be paid to him. The tenancy in no way dependent upon the service of notice under section 18 and in case ejectment application is instituted by the landlord on default of rent and receipt of copy of the said application by which the tenant came to know about the transfer of property constitutes due notice and can be treated as substantial compliance with the provisions of section 18 of Sindh Rented Premises Ordinance, 1979. In view of the above, I am of the opinion that the impugned order does not suffer from any illegality or irregularity and so also no case of misreading or non-reading of evidence is made out. Consequently, this petition has no merit, hence dismissed in limine along with listed application. The petitioner, however, is allowed to vacate the demised premises within 60 days subject to payment of monthly rent and utility bills. H.B.T./Q-14/K Petition dismissed.