P L D 1988 Quetta 1 (PLP)

ABDUL QADEER CHAUDHARY, ACTG. C.J.‑‑ This appeal is directed against the order of learned Civil Judge‑cum‑Rent Controller, Quetta, dated 23‑8‑1986, by means of which the application filed by the respondents for the eviction of the appellant was allowed.

2. The respondents on 13‑11‑1982, filed an application under section 13 of the Ordinance VI of 1959 (hereinafter referred to as the Ordinance), against the appellant averring therein that the appellant has been in occupation of the premises bearing Municipal No.2‑10/22 (ground floor) and 2‑10/22‑A (first floor) situate at Shahra‑e‑Iqbal Quetta (hereinafter referred to as the premises) as tenant since 1961 or thereabout. The property initially belonged to two brothers i.e. Abdul Azeem Bakhtiar and Abdul Haleem Bakhtiar sons of Haji Abdul Karim. They let out the premises to the appellant and from time to time agreement of tenancy was executed separately for ground floor and first floor. The lease deed was executed on 4‑7‑1987 in respect of ground floor at Rs.2,000/‑ per month as rent and obtained Rs.72,000/‑ as advance rent for three years commencing from 1‑5‑1987. The rent of the first floor was enhanced from Rs.650/ to Rs.1,000/‑ without a rent deed in writing, thus the two premises were let out by the said owners for Rs.3,000 per month on rent. After execution of agreement dated 4‑7‑1978 Abdul Azeem Bakhtiar expired on 27th October, 1978 and Abdul Karim Bakhtiar became the partner of the property by the name of Haji Abdul Karim & Sons. After the death of Abdul Azeem Bakhtiar, the respondent No.l was also receiving rent. Abdul Azeem Bakhtiar and Abdul Haleem Bakhtiar gifted the premises to respondent No.l and his brother Saleem Bakhtiar sons of Mr. Yahya Bakhtiar in the year 1975. Possession of the premises was also delivered to them. Gift deed was also executed by the previous owners on favour of respondent No.l and Saleem Bakhtiar on 3‑2‑1977, which was duly registered on 4‑2‑1977. Mr. Saleem Bakhtiar executed another gift deed duly registered in favour of respondent No.2 on 28‑4‑1982 and possession of half share in the premises had been given to the respondent No.2 with effect from 1‑7‑1981.

3. The appellant failed to pay rent of the premises from May, 1981 onwards as such the application for eviction was filed on the ground of default.

4. The eviction application was contested by the appellant. It was his case that no tenancy exist between them as tenant and landlords of the premises in dispute. He did not give any notice to him as required under section 13‑A of the Ordinance. The respondent never accepted or received any rent as alleged in the application. In fact M/s. Abdul Azeem Bakhtiar and Abdul Haleem Bakhtiar had executed the lease deed and had been receiving the rent. No intimation about the death of Abdul Azeem Bakhtiar or change in partnership was intimated to the Appellant. About default it has been stated in the written statement that M/s. Abdul Azeem and Bakhtiar had been operating an account with the appellant Bank, payment orders in respect of rent of the premises were issued to them and in turn they used to depose order issued to them and this practice continued up to the month of September, 1982, which they accepted. As regards the rent for the months of May and June the pay orders were sent to Abdul Azeem Bakhtiar and Abdul Karim Bakhtiar and they accepted the pay order. On the pleadings of the parties the learned Rent Controller framed only one issue i.e. whether there exists relationship of landlord and tenant between the applicants and the respondent? Both the parties led evidence in support of their respective contentions. The learned Rent Controller on the assessment of the evidence came to the conclusion that there existed relationship of landlord and tenant between the parties and consequently accepted the application moved by the respondents for the eviction of the appellant.

5. A.W.I. Abdul Ghafoor is the Registration Clerk, who produced the gift deeds dated 4‑2‑1977 and 29‑4‑1982. A.W.2 Abdul Haleem Bakhtiar is the attorney of respondents and he gave the statement in favour of the respondents. A.W.3 Mr. Yahya Bakhtiar produced certain notices. From the side of the appellant Javed Iqbal Manager Muslim Commercial Bank as R.W.i, Mr. Muhammad Younus, Officer of Muslim Commercial Bank as R.W.2, Mr. Mohammad Hussain Peon of the appellant Bank as R.W. 3 and Mohammad Amin son of an employee of the Bank as R.W.4 appeared and deposed certain facts to show that no notice about the change of ownership was given to the appellant and the amount had been regularly paid through pay orders, which was the prevailing practice between the parties. The learned Rent Controller as stated above accepted the application and passed the order of eviction, hence the present appeal.

6. I have heard the learned counsel for the parties. It has been contended by the learned counsel for the appellant that no notice under section 13‑A of the Ordinance was served upon the appellant, therefore, the application for the eviction of the appellant on the ground of default was not maintainable. No notice whatsoever was ever given to the appellant as tenant regarding either any gift or about the death of Abdul Azeem Bakhtiar. No intimation about the change of ownership was given to the appellant.

7. It is the case of the respondent that Abdul Azeem Bakhtiar and Abdul Haleem Bakhtiar gifted the premises to respondent No.l and his real brother Saleem Bakhtiar in the year 1975 and in June, 1981 Saleem Bakhtiar had gifted his share of the property in favour of his mother (respondent No. 2). There is no document indicating the issuance of notice or service on the appellant by the new owners. The learned counsel for the respondents has referred to the correspondence in support of his plea that a notice stipulated within the provision of section 13‑A had been served upon the appellants. I would consider these documents at the proper stage. Here I may refer to the provisions of section 13‑A of the Ordinance which is reproduced below:‑ "13‑A. Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of subsection (2) of section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him." According to this provision whether the ownership of a .building has been transferred by way of sale, gift, inheritance or in any other manner the new owner must send an intimation of such transfer. In the present case no notice as contemplated under section 13‑A has been served upon the appellant. Here I may also mention the intense relationship of the previous owner and the new landlords. Abdul ) Haleem Bakhtiar is the uncle of Karim Bakhtiar and Saleem Bakhtiar, and so was Abdul Azeem Bakhtiar. Mrs. Eva Bakhtiar is mother of respondent No.l and Saleem Bakhtiar. The gift in favour‑of Saleem Bakhtiar and Karim Bakhtiar was made in the year 1975 but it was registered on 4‑2‑1977. In spite of the said gift and the plea of possession the agreement with the appellant was executed by Abdul Haleem and Abdul Azeem Bakhtiar on 4‑?‑1987 for a period of three years. The rent was received in advance by the previous owners in spite of the fact that they were no more owners of the premises in question.

8. I will now refer to the correspondence made between the parties i.e. the appellant and the respondents. By letter dated 18th July, 1982 Exp.S, the Manager of the appellant. Bank informed M/s. Abdul Azeem Bakhtiar and Abdul Haleem Bakhtiar that a sum of Rs.26,000 being the rent for 13 months from July 1981 to July 1982 is lying intact in their book. This letter was replied to by Mr. Yahya Bakhtiar on behalf of Mr. Karim Bakhtiar (Partner Haji Abdul Karim & Sons) Mrs. Eva Bakhtiar wherein it has been mentioned that the appellant committed default in payment of rent in violation of law and tenancy agreement executed on 4th July, 1978 and they have failed to pay the rent from May, 1981 to July, 1982. It is stated "Being in default and in spite of oral requests to vacate the building you have now sent this astonishing letter (Exp. A/6‑A)." The appellant on 19th August, 1982 sent a reply to Mr. Yahya Bakhtiar, wherein it is mentioned that there has been no default in payment of rent and the position has been cleared in the earlier letter (Exp. A.6). Mr. Yahya Bakhtiar replied this letter on 7th August, 1982, stating therein that the default committed by the appellant is clear (Mark‑B). The appellant through a letter dated 11‑10‑1982 (Exp. A/7) sent the payment orders on account of rent. This letter was replied to by Mr. Abdul Haleem Bakhtiar on behalf of Haji Abdul Rahim & Sons and for the first time it has been mentioned that he and his deceased brother ceased to be the owners of the building and the transferees Mrs. Eva Bakhtiar arid Mr. Karim Bakhtiar have given him notice for eviction. It is further mentioned that he has no authority to discuss the matter. However, the letter and pay orders are being forwarded to the owners mentioned above. The object of notice under section 13‑A is to inform the tenant about change of ownership and unless the tenant gets notice of transfer he cannot be adjudged as a defaulter in payment of rent. Notice under section 13‑A is a condition president for invoking the jurisdiction of the Rent Controller for the eviction of tenant or. B the ground of default. The relationship of the parties as landlord and tenant cannot be challenged after the transfer of property by way of gift, sale or inheritance but if a landlord wants to eject tanant on the ground of default then it must be shown that the tanant has been informed about transfer of ownership. It is, therefore,, to be seen whether the letters communicated on behalf of the respondents can be termed as notice under section 13‑A of the Ordinance. As observed earlier no notice was served upon the appellant by the transferees. The last notice sent by Abdul Haleem for the first time mentioned that they had no connection with the property in dispute. But admittedly even after the transfer of the property by way of gift Abdul Haleem Bakhtiar was dealing with the appellant. He and his deceased brother as partners of Haji Abdul Karim & Sons had executed the agreement of tenancy after they had gifted the property to Karim Bakhtiar and Saleem Bakhtiar. They had received the rent in advance for a period of three years. Abdul Haleem Bakhtiar as A.W.2 had admitted in his deposition that Saleem Bakhtiar and Karim Bakhtiar had authorised him to collect rent and he used to receive rent on their behalf. He has further deposed that he had signed the gift deed on behalf of Saleem Bakhtiar on 1‑7‑1981 as his "Mukhtiar". Karim Bakhtiar, Saleem Bakhtiar or Mrs. Eva Bakhtiar never intimated to the appellant about the change in ownership similarly there is no intimation to the appellant about the death of Abdul Azeem Bakhtiar. It is stated that Abdul Azeem Bakhtiar was operating a bank account in the appellant‑Bank and after his death Succession Certificate was obtained and such intimation was in the knowledge of the Bank Manager. The bank is the tenant of the respondents, therefore, the knowledge of the Bank Manager about the death of Abdul Azeem Bakhtiar would not absolve the respondents to give intimation about his death as required under law as the bank is the tenant. The Head Office of the appellant‑Bank is at I.I. Chundrigar Road, Karachi, Abdul Azeem Bakhtiar and Abdul Haleem Bakhtiar had leased out the premises in dispute as partners of the Firm called "Haji Abdul Karim & Sons". In spite of the death of Abdul Bakhtiar Abdul Haleem was dealing with the appellant either as owner of the attorney of the respondents. The notice Exp. 9 issued by Haji Abdul Haleem Bakhtiar is undated but it is a reply given to the letter of the appellant dated 11‑10‑1982, therefore, if this letter be considered a notice under section A but before any reply could be given the respondents had filed the eviction application on 13‑11‑1982.

9. The case of the appellant is that the respondents never received any rent and infact M/s. Abdul Haleem Bakhtiar and Abdul Azeem Bakhtiar had not accepted rent and after the refusal of. Abdul Haleem Bakhtiar to receive rent the same had been deposited in Court. It is further submitted that in Exh.P.A/9 it has been stated by said Abdul Haleem Bakhtiar that the pay orders are being forwarded to the new owners. Even in the last letter there is no intimation of change of ownership from the respondents. The learned counsel for the appellant in support of his contention about non‑service of notice under section 13‑A has referred to the cases of S.M. Hayar v . Commodore (Recd . ) Ikramul Haq Malik and another (1984 C L C 3176) , Qaisar Zamani v . Rasheeda Begum and 2 others (1985 C L C 596), Sabu v. Kika Ram alias Heman Das (1973 S C M R 185), Mrs. Marim Fernandes v. State Life Insurance Corporation of Pakistan, Karachi P L D 1981 Karachi 591 and Mst. Razia Butt v. Ghulam Raza P L D 1979 Quetta 157). In all these authorities it has been mentioned that notice under section 13‑A is mandatory.

10. In reply to this contention the learned counsel for the respondents has submitted that apart from the fact that letter Exh.P.A/9 clearly mentions that the ownership has been transferred to .the respondents, the filing of application is itself a notice to the appellant. As such the mandatory provision of section 13‑A has been complied with. He has relied upon the cases of Syed Azhar Imam Rizvi v. Mst. Salma Khatoon (1985 S C M R 24), Khuda Bakhsh v. Muhammad Yaqoob etc. (1981 S C M R 179), Manzoor Ahmed v. Muhammad Amin (1982 S C M R 894(2), Aziz Begum v.Faiyaz Butt (N L R 1980 Civil Lah. 134), Muhammad Anwar and others v. Mst. Balqees Begum and others (1984 C L C 1506) and Malik fnayatullah v. Muhammad Faryad and 7 others (1982 C L C 2073).

11. The cases cited by the learned counsel for the respondents are distinguishable. In Syed Azhar Imam Rizvi's case the petitioner became aware of sale made in favour of respondent in 1978. He received the notice and copy of ejectment application. The tenant denied relationship of landlord and tenant. The High Court passed an order of deposit of rent in October, 1980. In second appeal under section 13(6) . A second application was filed by landlady on 3‑12‑1980. The first ejectment application was filed in November, 1978 alleging default from July to November, 1978. The aforesaid facts clearly distinguish the present case from the cited judgment. In Khuda Bakhsh's case service of Notice has been proved and the petitioner admitted payment of rent to petitioner. In Manzoor Ahmed's case the transferee without giving notice under section 30 dies and thereby the property devolves on his heirs and he alienate the property and thereby divests himself his all rights and interests in the property. It was held that legal representative in case of death and vendee in the event of sale would step into the shoes of the transferee. It was further observed that notice under section 30 could be given by heirs or vendees from him as the case may be and notice under sections 30 and 13‑A could be combined. The case further reveals that material information required to be conveyed to the tenant under section 13‑A was contained in the notice. Separate notice under section 13‑A in such circumstances is not necessary. In Aziz Begum's case despite the receipt of registered notice by the respondent they usually insisted upon the denial of her right. It was, therefore, observed that ejectment application itself regard as sufficient notice. In Muhammad Faryad's case the facts were that tenant acknowledging landlord's title by executing lease deed and continuing payment of rent but at the same time setting up adverse title.

12. The authorities cited by the learned counsel for the respondents are not applicable to the facts of the present case. For initiation of, proceedings under section 13 for the eviction of tenant on the ground of default it must be established that a notice under section 13‑A has been served on the tenant. Correspondence between the parties do not in unequivocal terms prove that notice had been served upon the appellant. With regard to the operation of accounts of the firm and the death of Abdul Azeem Bakhtiar one of the partners, the Firm was dealing with the Bank and not with the tenant. The contention: of the respondents that the filing of the eviction application against the appellant is itself a notice and to this proposition there cannot be two opinions. The learned counsel for the appellant has also frankly conceded to this proposition. The filing of ejectment application may be considered as a notice of demand if the previous owner or landlord has not claimed his title to the rented premises. But the difficulty in the present case arises due to the non‑framing of proper issue. The appellant in the written statement has denied the existence of relationship of landlord and tenant on the ground of non‑service of notice. In fact the issue should have been whether notice under section 13‑A had been served upon the appellant. Due to framing of issue of relationship of landlord and tenant the appellant might have been misguided. In every case where it is established that notice under section 13‑A has been served upon the appellant the straight away of eviction cannot be passed. Only in such cases where the tenant in spite of service of notice refused to acknowledge the appellant as landlord and fails to pay the rent and this position is accepted then the eviction order can be passed without any further inquiry. Because the forfeiture of tenancy can only be made if the relationship has been denied with some ulterior motive and the tenant with conscious application of mind refuses to accept the applicant as his landlord and the payment of rent is also not admitted. But in a case where a tenant has put up a plea which requires investigation and the same plea is not frivolous but is based on certain facts which could only be established if a party who raises such plea be permitted to lea.: evidence. There is difference between denial of tenancy and non receipt of notice. In case of denial of tenancy coupled with ulterior designs without any just cause the forfeiture of tenancy can be made; but where a tenant has put up a plea in support of his contention about non‑payment of rent then that plea is required to be determined by the Rent Controller. It is to be shown that the default is wilful. In the present case the close relationship of the respondents with the original owners has been mentioned. Abdul Haleem Bakhtiar A.W.2 has been admitted that he had received the advance rent of three years on 1‑5‑1987. He has also admitted that he signed the gift deed on 1‑7‑1981 as Mukhtiar of Saleem Bakhtiar.

13. The case of the appellant is that there was a practice of paying rent through pay orders and amount of rent had been shown in the account of the previous owners through Abdul Haleem Bakhtiar A.W.2 has denied this fact but the letter Exh.P.A./9 shows that Abdul Haleem Bakhtiar had forwarded the pay orders to the owners mentioned above. R.W.2 in his statement has deposed that Haji Abdul Karim had received pay orders from May, 1981 to September, 1982 but they were not encashed. It is also the case of the appellant that on the refusal of the owners the appellant bank had deposited the rent in court and they are willing and ready to pay. the rent to the landlords. Here it may be pointed out that amendment in section 13 has been made vide Ordinance No.VIII of 1985 on 6‑2‑1985, which contemplates as under: ‑ "In Baluchistan Urban Rent Restriction Ordinance 1979, in section 13; (a) in subsection (2) the full‑stop appearing at the end of the existing proviso shall be replaced by a colon and thereafter the following proviso shall be added, namely: Provided further that where the application made by the landlord is on the ground mentioned in clause (i) and the tenant on the first date of hearing admits his liability to pay the rent due from him, the Controller shall, if he is satisfied that the tenant has not made such default on any previous occasion, direct the tenant to deposit all rent due from him on or before a date to be fixed for the purpose, and upon deposit being made he shall make an order rejecting the application . " Therefore, the court while passing order of eviction would also consider, this provision in case the application is made only on the ground of default. All the above facts would make it clear that the defence D taken by the appellant requires inquiry. The learned counsel for the appellant has referred to Muhammad Yamin v. Mashroofullah Khan (1980 C L C 848), Ghulam Muhammad Khan Lundkhor v. Safdar Ali (P L D 1967 S C 530), Faqir Muhammad v. Dr. Muhammad Yasin and 2 others (P L D 1964 Lah. 686) and Najmuddin v. Zamir Ahmed (PLD 1982 Karachi 188). In these authorities it has been held that where the default is not wilful discretion to be allowed in favour of tenant and non‑payment of rent does not ipso facto on order of ejectment.

14. On the other hand the learned counsel for the respondent has referred to the cases of Mst. Sughran and others v . Ehsanul liaq Bhalli, Additional District Judge, Jhang and another (1982 S C M R 1164), Nisar Ahmed v. Nazar Muhammad Din (1982 C L C 1383), Haji Abdul Hameed v. Ch. Muhammad Islam (1983 C L C 970) and Nazar Hussain v. Aslam Shah (P L D 1977 Lahore 210) in support of his contention that a person who does not acknowledge the relationship of landlord and tenant between the parties has no right to plead after finding in this regard him for any further inquiry. The contention of the learned counsel has force, but it is to be seen in each case, whether the title has been denounced on some plausible reason in good faith, for his own protection, and such plea of default has to be established because the contention of the appellant is to be adjudged about the payment of rent. It was, therefore, imperative for the E Rent Controller to have framed the issue about the default so that the appellant would have been in a position to show either that he had paid or default is wilful. If there are circumstances from which it can be gathered that there was really no intention deliberately to withhold the payment, there cannot be wilful default which is necessary to constitute a ground of eviction.

15. The result of the above discussion is that the appeal is accepted, order of eviction is set aside and the case is remanded back to the learned Rent Controller to determine the question of F default after framing of the issue of default. The parties are directed to appear before the Rent Controller. There would be no order as to cost. A.A. /295/Q Appeal accepted.