P L D 1959 (W (PLP)

CONSTANTINE, J.‑The appellant in this case filed an applica tion in the Small Causes Court Karachi for ejectment, of the respondent on the ground that he had terminated the respondent's tenancy by notice dated 9th March 1954, with effect from the expiry of the next month's tenancy, viz., 30th April 1954, and had obtained a certificate from the Rent Controller to the effect that he required the premises bona fide and reasonably for his own use. Thereupon the respondent obtained a stay of the proceedings in ejectment by filing a suit under section 24 of the Karachi Small Causes Court Act. There the respondent succeeded on the ground that the notice terminating her tenancy had been refused by her, and the learned Additional District Judge, Mr. A. H. Qureshi, upheld this contention relying upon the case of Vaman Vithal Kulkarni v. Khanderao Ram, (A I R 1935 Bom. 247) where the notice had been sent by registered post and bore an endorsement of a postal official that it had been refused. In such circumstances Beaumont, C. J. had held that a party who refuses a notice is not imputed with knowledge of its contents.1 In our opinion this judgment is the only judgment upholding this point of view, and is contrary to he main current off authority. In Messrs Louis Dreyfus & Co. v. Messrs Himendas Vishindas & Co. (12 Sind L R 142), Pratt, J. C. said :‑ " It must be conceded, we think, that if the letter reached the` Kothi of the other party and was refused by them they must be affected with the knowledge of the letter which they refused to read." Similarly in 39 C W N 934, Rankin, C. J. said: "It appears to me that, if the defendant was minded to satisfy the Court that he got no opportunity to get this letter, it was for him rather than for the plaintiff to call upon the peon or call evidence to make good the not very probable story which he asks us to accept." It is implicit in this that he was of the opinion that if the defendant in that case really had the opportunity of ascertaining the contents of the notice then that was sufficient, and if he himself rejected that opportunity he could not complain of his own conduct. Mr. Fazaldin relied upon no other case except the Bombay case cited above, and in our opinion the principle is clear that if a person refuses a notice he should be affected with knowledge of its contents. Mr. Fazaldin, however, attempted to maintain the judgment on another ground. He argued that the notice was bad, relying upon Bradley v. Atkinson (7 All. 899), but in that case the Court held that the true effect of the notice was to demand enhanced rent, and such a construction was not consistent with terminating a tenancy. In this case the notice called upon the respondent to hand over vacant possession of the premise at present occupied as the plaintiff's monthly tenant at the end of the month of tenancy, viz. 30th April 1954, failing which he would file a suit against him for ejectment. Here we can see no possible construc tion of this notice except that he purported to terminate the tenancy at the end of April. The next point argued by Mr. Fazaldin was that the appellant had waived the termination of the tenancy. This contention was founded upon two arguments, both shewing either careless preparation or a want of candour. The first was that section 10 of the Karachi Rent Restriction Act requires that the application shall be made against a tenant. It is true that the application was made on the 15th March before the end of the tenancy, but, so argues Mr. Fazaldin; the final order of the Rent Controller was not passed till August 1954, and so the appellant must be deemed to have continued his application before the Rent Controller on the footing that the respondent was still his tenant. This however, overlooks the fact that tenant is defined in section 2 (7) of the Karachi Rent Restriction Act as including a person who remains in possession of the premises leased to him after the termination of the lease with or without the consent of the landlord. The second argument was even worse. It was to the effect that the landlord had accepted payment of rent for a period after April, and Mr. Fazaldin had to confess that he had not read the record when he tried to make this point; for not only did the landlord state that he had accepted rent only for the months of March and April, but also (a fact which Mr. Fazaldin had not noticed till Mr. Jamiatrai drew our attention to it), the respondent had herself admitted that the landlord had refused to accept rent for many months after April. The result, therefore, is that the appeal is allowed. The suit filed by the respondent is dismissed. The respondent will bear the cost of the appellant both in appeal and in the lower Court. A. S. FARUQUI, J.‑I agree. K. M. A. Appeal allowed.