1983 PLP 1000 (CLC)

(5) What should the order be ? After hearing the parties, the learned Rent Controller allowed the above rent application on two grounds, namely, default and personal requirement and rejected the third ground of subletting. The appellants being aggrieved by the above order have filed the present appeal. 2. (a) In support of the above appeal Mr. Muhammad Hanif Mangi, learned counsel for the appellants has made the following submissions :‑ (1) That there was no service of notice under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance and, therefore, the application could not have been granted on the ground of default. (2) That in fact the rent was paid to the respondent. (3) That in any case there was practice between the parties of paying accumulated rent which was even admitted by the respondent in his cross‑examination. (4) That the ground of personal requirement was also not made out in view of the admission of the respondent in his cross‑examination. (b) On the other hand Mr. Sardar Khan Lashari, learned counsel for the respondent has contended as follows :‑ (1) That since the appellants had executed the tenancy agreement on 18th March, 1972 (Exh. 32) and had paid rent admittedly for more than two years, there was no need of service of any notice under section 13‑A. (2) hat since the appellants had pleaded the payment for the default period and not practice for the payment of accumulated rent on the basis of evidence, the learned Rent Controller has rightly granted the ejectment on the above ground. (3) That the ground of personal requirement has also been made but as admittedly the respondent is carrying on business in the rented premises.

3. As regards the first point Mr. Mangi has relied upon the case of Sh. Muhammad Hussain v. Mst. Mubina Begum and another (1979 C L C 42) the case of Mrs. Mariam Fernandes v. State Life Insurance Corporation of Pakistan, Karachi (P L D 1981 Kar. 591) and the case of Irshad Ali and two others v. Muhammad Umar (P L D‑1981 Kar. 273). On the other hand the reliance has been placed on the case of Nazar Hussain v. Aslam Shah (P L D 1977 Lah. 210) the case of Khuda Bux v. Muhammad Yakoob etc. (1981 S C M R 179) the case are Muhammad Shareef Ahmed v. Syed Safdar Hussain (1982 C L C 434) and the case of Hakim Muhammad Yakoob Ali v. Muhammad Fayaz and another (P L D 1982 Lah. 194). (i) In the above case 1979 C L C 42, a learned Single Judge of this Court held that a notice under section 13‑A is akin to a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and that there was no room for agreement outside the statute between transferee landlord and tenant to pay rent. The learned Single Judge dissented from Lahore case namely Nazir Hussain v. Aslam Shah. (ii) The above Karachi case was followed by another learned Single Judge of this Court in the case reported under the title of Mrs. Mariam Fernandes v. State Life Insurance Corporation, Pakistan, Karachi. (iii) As regards the third case, namely Irshad and 2 others v. Muhammad Umar relied upon by Mr. Mangi, it may be stated that a learned Single Judge of this Court held that mere posting of a notice to a tenant by a new landlord is not sufficient under section 13‑A of the W. P. U. R. R. Ordinance, and the period of 30 days mentioned in the above section is to commence from the date of service of the notice. (iii‑A) In the case P L D 1977 Lah. 210, it was held by a learned Single Judge of the Lahore High Court that after .the tenant acknowledges his landlord by paying rent such a tenant cannot turn back and rely upon section 13‑A in case of his deliberate default in payment of rent as principle of estoppel will come in his way. (iv) As regards the case 1981 S C M R 179, it may be pertinent to reproduce herein below para. 7 of the above judgment, which reads as follows :‑ "

7. Be that as it may on page 54 of the paper book we find that the petitioner admits paying rent to the respondent. The reason for a notice under section 13‑A is to inform the tenant that the landlord has sold the property to another person so that rent could thereafter be paid by the tenant to the new landlord. In this case knowledge of the transfer is admitted by the petitioner and hence even if a notice had not been served under section 13‑A, it would not stand in the way of the Court in granting the relief that it has granted." (v) Reverting to the case 1982 C L C 434, it will suffice to observe that in the above case the present Hon'ble Acting Chief Justice of this Court held that no notice under section 13‑A was necessary if the tenant has acknowledged and admitted the change of ownership by entering into an agreement with the new owner. (vi) As regards the case P L D 1982 Lah. 194, it may be stated that a learned Single Judge of Lahore High Court took the view that. if a tenant acknowledges the landlord as an owner in his better statement recorded by the Rent Controller, notwithstanding the absence of a notice under section 13‑A, the ejectment application is competent even on the ground of default.

4. It seems that in the two cases relied upon by Mr. Mangi the view which has been pressed by him before me was found favour with the learned Single Judge hearing the aforesaid cases. However, in the above Supreme Court, Lahore and Karachi cases contrary view was taken, From Para. 7 of the judgment quoted from the Supreme Court case, it is evident that the Hon'ble Supreme Court was of the view that non‑service of a notice under section 13‑A of the Ordinance may not be fatal to an application for ejectment. In the instant case, it is an admitted position that the appellants had entered into a tenancy agreement on 18th March, 1982 wit effect from 1st March, 1972 and paid rent up to April, 1975. i.e. for more than two years. In this view of the matter I am inclined .to hold, that it is not open to the appellants to plead want of notice under section 13‑A of the Late W. P. U. R. R. Ordinance.

5. As regards the merits on the question of default it may again be observed that it has been vehemently urged by Mr. Hanif Mangi, learned counsel for the appellants that factually appellant No. 1 had paid rent for the above period, which stands proved by the evidence produced, by the appellants. It has also come on record which is also indicated from Exhs. 61 to 71 that the respondent was recording receipt for the payment of rent on a note book maintained by appellant No.

1. There are some material contradictions in the testimony of the witnesses produced by the appellant as to alleged payment for the period in question. The explanation given by appellant No. 1 as to the reason why he had not obtained receipt for the e alleged payment on the above note book, namely, that he went to pay the rent at the shop of the respondent, does not inspire confidence as nothing could have prevented him from taking the note book when he went to make] the payment. On the basis of the evidence on record, the learned Rent Controller could have held that payment for the above period was not proved. As regards the second limb of the argument that there was in fact practice obtaining between the parties on the basis of which accumulated rent was accepted, it is true that Exhs. 61 to 71 indicate that respondent had accepted accumulated rent for few months including twice for four months. In my view if the factum that appellant No. 1 had paid the rent would not have been pleaded and the only plea would have been that the rent was not paid because of the above practice obtaining, the appellant might have good defence. However, in the instant case as appellant No. 1 pleaded the payment of the rent for the period in question which has been disbelieved by C the Rent Controller, in my view the practice cannot be pressed into service. For the aforesaid reasons, I am inclined to concur with the finding of the Rent Controller on the question of default.

6. As regards the second ground of personal requirement, it has been admitted by the respondent that he was running his business in a shop since 1971 belonging to one Muhammad Rafique, his brother. At the same time he also admitted that his brother had asked him to vacate the shop about 5 years back. His statement was recorded in 1977. The tenancy agreement Ehx. 32 was executed in March, 1973. It is not understandable as to why the respondent executed the tenancy agreement in favour of the appellant in 1972, when his brother had already asked him to vacate his shop. There seems to be no plausible reason nor there is any indication in the tenancy agreement that after the expiry of 11 months period, the respondent Would be needing the shop for his personal use. In view of the above state evidence, the respondent failed to discharge the burden of proof that he bona fide needed the shop. The fact that he is in occupation of a rented shop is a relevant factor to be considered alongwith the attending circumstances. In the instant case the attending circumstances negative the personal bona fide requirement of the respondent. I would, therefore, reverse the finding of the Rent Controller on the question of personal requirement.

7. Since I have maintained the finding on the ground of default, the order in appeal is to be maintained, I, therefore, dismiss the appeal with no order as to costs. However, I would grant 8 months period to the appellants on the condition that they shall continue to pay rent in terms of the Rent Controller's order, failing which the respondent shall be at liberty to file an execution application before the expiry of the above period of 8 months. Further in case the appellants fail to hand over that vacant possession on the expiry of the above period of 8 months, the Rent Controller shall issue writ of ejectment without any further notice to the appellants. M. Y. H. Appeal dismissed.