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5. No formal issues were framed by learned Rent Controller but after the parties had concluded their evidence, he framed the following points of determination: Point No.1, Whether this rent application is not maintainable? Point No.2, Whether the tenant has failed to pay rent and committed deliberate and willful default? Point No3, Whether, the disputed premises are required for erection of new building? Point No.4, Whether the tenant committed the acts which have materially impaired the value and utility of the disputed premises? Point No.5, What should the order be?

6. On the basis of the evidence adduced before him, learned Rent Controller came to the conclusion that the rent application was not maintainable, decided abovenoted point No.l in the affirmative, held that in view of the decision of issue No.1 in the affirmative, rest of the points Nos.2, 3 and 4 had become redundant and did not require any adjudication and dismissed the ejectment application vide impugned judgment, dated 28th March, 1990. Hence this appeal.

7. A perusal of the impugned judgment shows that learned Rent Controller held the rent application to be not maintainable because the title of the appellant was not clear on the date when the rent application was filed (October 1982) and was under dispute in Constitutional Petition No, D-78 of 1984. I do not understand from where learned Rent Controller came to this conclusion. Neither the memo. of Petition of C.P.D: 78/84 nor its judgment is on record. This point was also not raised or clarified by learned counsel of the respondent.

8. To begin with, I was rather surprised as to why the appellant should have first treated respondent Abdul Razak as a trespasser alongwith rive other persons and sought possession by filing a civil suit (First Class Suit No.45 of 1976) in the Court of Senior Civil Judge, Jacobabad. This surprise was due to the fact that the case of the appellant was not properly conducted front the very beginning and facts were not put in their correct perspective before the various Courts. First impression that is created is that the respondent was in occupation of the disputed shop (No. 357, Ward B of Sarafa Bazar, Jacobabad) in his own right when it was transferred to the appellant and therefore he became statutory tenant of the appellant from the date of transfer of the shop to the appellant and, therefore, the obvious course which the appellant should have adopted was to give him notice under section 30 of Displaced Persons (C&R) Act, 1958 intimating him the factum of transfer and demanding the rent either at the same rate at which the respondent was paying rent to the Custodian or Settlement Department or in accordance with the latest municipal assessment and to file ejectment application against the respondent if he failed to comply with the notice. This anomaly seems to be the result of bad advocacy on behalf of the appellant and is removed by looking into various documents lying on the record. At page 249 of the R&P there is a copy of order dated 24-5-1973 passed by Settlement and Rehabilitation Commissioner Sindh in Case No. 74 of 1972 in which it was held that appellant Raghib Siddiqui was in undisputed possession of the shop on the target date (2-12 -1956) and his possession stood established at least up to 20-5-1959 when the Assistant Custodian had permitted him to repair the shop. The respondent was nowhere near the disputed shop at that time. He comes on the scene much later. In paras. 2 and 23 of his affidavit-in-evidence (Exh.10) the appellant states that the respondent came into possession of this shop by entering into partnership with Jagat Ram who was appellant's tenant in the shop and then ousted Jagat Ram by purchasing the whole business. This averment of the appellant was not controverted by the respondent in the cross-examination of the appellant and therefore it shall be deemed to be conceded by the respondent. Now, since the respondent was neither the recorded tenant of the Custodian or the Settlement Department nor he was inducted as a tenant by the appellant, therefore the appellant treated him as a trespasser and fled Suit No. 45 of 1976 for seeking possession of the shop. However, that suit was dismissed vide judgment, dated 22-1;1978 or 22-2-1978 (Exh.12) (The date is not clear. Exh.12 gives the date as 22-1-1978 but the appellate judgment in First Appeal No. 2 of 1979 (Exh.27) in the very second line gives the date as 22-2-1978) (page 147 R&P). It was dismissed on the ground that the date of Permanent Transfer Order in favour of the appellant was 28-12-1973 and on this date the respondent was in occupation and under section 30 of the Displaced Persons (C&R) Act, 1958 he became statutory tenant of the appellant/transferee. It appears to me that "possession" as contemplated in the Settlement Laws is lawful possession of a person who was the recorded tenant of the Custodian or of Settlement Department and not of a person who is already a contractual tenant of the transferee or is a trespasser who has thrown out the transferee by force or deceit and therefore the learned Civil Judge should have taken into account this aspect of the dispute while deciding issue No.l and dismissing the suit. Even so, this discussion is only academic since appeal riled against it (First Appeal No. 2 of 1979) was dismissed by the High Court on 25-10-1981 vide judgment Exh.27 (page 147) on the ground of limitation and the Supreme Court in C.P.LA. No.K-75 of 1982 dismissed the petition for leave to appeal vide Order, dated 13-9-1982 (Exh.28, page 161) and maintained the judgment of the High Court on the point of limitation. Thus, the judgment in Suit No. 45 of 1976, dated 22-1-1978 or 22-2-1978 has achieved finality and in terms thereof the respondent is the statutory tenant of the appellant with effect from 28-12-1973.

9. Now, admittedly, the respondent has not been served with notice under section 30 of Displaced Persons (C&R) Act, 1958 or under section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959 or under section 18 of the Sindh Rented Premises Ordinance. However, Displaced Persons (C&R) Act, 1958 stood repealed when the eviction petition was filed on 16-10-1982 and therefore there was no obligation upon the appellant to serve the respondent with section 30 Notice. Objection raised by the respondent in this B regard is rejected as untenable. For the same reason, there is no logic in arguing that rent application was not maintainable because notice under section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959 was not given because this Ordinance also stood repealed for nearly three years on the date of filing of the rent application. As for lack of notice under section 18 of the Sindh Rented Premises Ordinance, I shall discuss it in the following lines.

10. Section 18 of Sindh Rented Premises Ordinance is reproduced below: "

18. 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 intimation should, in normal course, have reached the tenant."

11. It is obvious that the purpose behind section 18 is that a tenant should not be taken unawares and accused by the new transferee of being a defaulter. As such, section 18 of the Ordinance of 1979 has no bearing or relevancy where a new landlord, after succeeding to the old landlord through sale, gift, C inheritance or by such other mode, moves an ejectment application under section 14 or 15 of the said Ordinance against the tenant on any or all the grounds enumerated in section 15(2) except that of default. Reliance is placed on the judgment in the case of Mst. Muhammad Nisa v. Anwar Ali 1989 CLC 157 in which it is held that notice under section 18 of the Ordinance is not necessary when ejectment is sought on the ground of personal requirement of the landlord. The same view is held in the case of Habib Muhammad v. Zamir Hasan Khan 1987 CLC 510 even though it is under a case under section 14 of the Ordinance of 1979. Now, in the present case, the appellant had sought eviction of the respondent under sub-clause (vi) of section 15(2) as well, that is, for reconstruction or erection of a new building after obtaining necessary section for such reconstruction or erection from the authority competent under the law to give such sanction and therefore to that extent, at any rate, the ejectment application was maintainable. Learned Rent Controller totally ignored this aspect and acted extremely perversely in declaring the ejectment D application as not maintainable even under sub-clause (vi) of section 15(2) of the Ordinance.

12. There are, by now, no dearth of reported judgments of the superior Courts to the effect that notice under section 18 of the Ordinance is not necessary even in cases where eviction is sought on the ground of default in the _ payment of rent under sub-clause (ii) of section 15(2) of the Ordinance when it is established that the tenant had knowledge of the transfer, because in that case serving of the notice will serve no purpose and will be superfluous. On this point learned counsel of the appellant had relied on the judgment in the case of Major Muhammad Yousuf v. Mehraj-ud-Din and others 1986 SCMR

751. In this judgment the necessity, requirements and the scope of the notice under section 13-A of the repealed West Pakistan Urban Rent Restriction Ordinance were discussed but since section 13-A is practically the same as section 18 of the Sindh Rented Premises Ordinance, 1979, the observations of their Lordships in this judgment are applicable on all fours in the present case. It was held in this judgment that failure of the landlord to give notice under section 13A to his tenant does not mean that the relationship of landlord and tenant does not come into existence between the parties, that such relationship comes into existence as soon as the new landlord steps into the shoes of the former, and therefore, even when notice under section 13-A is not given by the new landlord and he yet institutes an ejectment application on the ground of default, such ejectment application is still maintainable and if the tenant does not pay rent even after being served in the rent case, he commits willful default in the payment of rent rendering himself liable to eviction under section 15(2)(ii) because service of Court notice in respect of ejectment application serves the same purpose as a notice under section 13-A of the Ordinance which purpose is "conveying the information to the tenant as to who is his new landlord so that he (the, tenant) may commence discharging his statutory obligation of tendering rent". In this judgment two questions were raised; first, whether a new landlord was required under section 13-A to serve his tenant with a notice before seeking his eviction and, second, whether non service of such notice would amount to negation of the relationship of landlord and tenant and under the second question their Lordships observed as follows: "

6. On the second question also the respondents have no case. It is neither supported by statute nor any principle of law that if a notice under section 13-A of the Ordinance is not served that would amount to absence of relationship of landlord and tenant. The analogy of case law under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is not attracted here. Thus, the finding on issue of relationship has to be reversed and we do accordingly.

7. That being so, rent having admittedly not been paid after the institution of the application for eviction which has also been treated as notice under section 13-A the respondents were liable to be evicted. We order accordingly."

13. Another judgment on the point is in the case of Ghulam Samdani v. Abdul Hameed 1992 SCMR 1170 in which it is held that notice of attornment becomes unnecessary and redundant when it is proved on record that the tenant knew the existence of a Court decree establishing the title of the landlord, that as soon as a tenant learns the existence of such a decree he is bound to commence tendering rent to his new landlord at once, notwithstanding the fact that new landlord had not served him with a notice under section 18 of the Ordinance and he may deposit the rent in Court only when the new landlord refuses to accept rent and that deposit of rent in Court in circumstances other than those mentioned above would not save the tenant from being treated as a defaulter.

14. Here, the position is that the appellant files suit for possession (Suit No.45/76) treating the respondent and 5 others as trespassers and the respondent in his written statement takes the defence that the suit for' possession is not maintainable because he was statutory tenant of the appellant, under the Settlement laws, from the date of the transfer of the disputed shop (28-12-1973) to the appellant and was therefore governed by the repealed West Pakistan Urban Rent Restriction Ordinance, 1959 or the current Sindh Rented Premises Ordinance, 1979 and his plea is accepted by the Court which holds that statutory relationship of landlord and tenant had come into existence between the parties with effect from 28-12-1973 and that the appellant should approach the Rent Controller to seek eviction of the respondent and the suit of the appellant is dismissed in 1978. The appellant challenges this verdict and goes to the High Court (First Appeal No. 2 of 1979) where the respondent engages a counsel who supports the findings of the trial Court and the appeal is dismissed on the point of limitation and the dismissal is maintained by the Supreme Court in C.P.LA. No. K-75/82. Now that when after losing his case up to the Supreme Court, the appellant acts in accordance with the stand taken by the respondent in his written statement in the suit (Suit No.45/76) and in accordance with the judgment in the said suit, which has achieved finality, having been upheld up to the Supreme Court, the respondent cannot turn round and say that relationship of landlord and tenant does not exist for want of notice or that rent application was not maintainable. '

15. In my view, the respondent was bound to tender rent to the appellant the moment he came to know that the property was transferred to the appellant by the Settlement Department. Since such date cannot be ascertained on the basis of the evidence on record, we should assume this knowledge from the date on which the respondent signed on his written statement in Suit No.45 of 1976 and made an averment to that effect. Since, however, copy of written statement is also not before us, such date shall be presumed from the date of the decision of Suit No.45 of 1976 which is 22-1-1978 (or 22-2-1978). In the light of the two reported judgments of the Honourable Supreme Court as discussed above (1986 SCMR 751 and 1992 SCMR 470) the respondent had become a defaulter and was therefore liable to be evicted and rent application filed against him was maintainable.

16. It is evident from the record that the respondent is a willul defaulter with a vengeance. It appears that at some stage Evacuee Trust Property Board had claimed this property to be evacuee trust property and the respondent had commenced paying rent to the Board. The appellant challenged the position by filing First Class Civil Suit No. 35 of 1975 in the Court of Senior Civil Judge, Jacobabad in which Government of Pakistan, Chairman Evacuee Trust Property Board and the Board's Administrator at Karachi and its Assistant Administrator at Sukkur and the Deputy Settlement Commissioner, Jacobabad were made parties. This suit was decreed. Copy of the decree-sheet, dated 24-2-1976 is on record at page 237 of R&P and it establishes the title of the appellant vis-a-vis the Evacuee Trust Property Board. This decree has become final since the Evacuee Trust Property Board did not prefer appeal against it. In fact the Board and other defendants had not even contested the suit and were proceeded against ex parte. On the contrary, the Board accepted the verdict and stopped receiving rent from the respondent. In fact the Board communicated this fact to the respondent as admitted by him in para. 5 of his Miscellaneous Rent Case No.5 of' 1976 (Exh.13) but who, instead of commencing paying rent to the appellant even at this late stage, preferred to file Miscellaneous Rent Application No.5 of 1976 on 11-5-1976 (three months after the decree passed in Suit No.35 of 1975) impleading the Assistant Administrator, Evacuee Trust Property Board, Jacobabad as a respondent and commenced depositing rent in the Court. It is worth noting that the respondent did not implead the appellant in this Miscellaneous Rent Case No.5 of 1976. Copy of memo. in M.R.C. 5 of 1976 is on record as Exh.13 (page 103) and in paras. 4 and 5 thereof the respondent had himself stated that the Evacuee Trust Property Board refused to accept rent and even returned the money orders sent to it and informed him that the property in dispute is said to have been transferred to Raghib Siddiqui (appellant). When the Board in so clear words washed its hands off the disputed property and informed the respondent as to who was the real owner, the respondent was duty bound to tender rent to the appellant at least from the date on which the Board communicated such information to the respondent. There was no justification whatsoever to file M.R.C. 5 of 1976 in the name of Evacuee Trust Property Board. Any rent paid to the Evacuee Trust Property Board or deposited in M.R.C. No.5 of 1976 is of no consequence and cannot save the respondent from being a defaulter.

17. The appellant has also sought the eviction of the respondent under sub-clause (vi) of section 15(2) of the Ordinance for erection of a new building on the site of disputed shop. To prove hi bona fide he has placed on record the approved plan of the new building (Exh.14) and the order of approval passed by the Municipal Committee, Jacobabad which is competent to give such approval under the Local Government Ordinance, 1979. In this context we can refer with profit to the judgment in the case of Abdul Aziz v. Rent Controller and others 1987 SCMR 2074 which lays down that the only conditions which a landlord must fulfill to obtain an order of eviction under section 15(2)(vi) of the Ordinance are that he should have obtained an approved plan and an order of sanction from competent authority. This the appellant has done and I am of the view that he is entitled to evict the respondent on this ground as well.

18. As a matter of fact learned counsel of the respondent did not defend the finding of learned Rent Controller on issue No.l and virtually conceded that the rent application was maintainable. His only plea was that the finding on issue No.l may be set aside and the case remanded to learned Rent Controller to decide the remaining points framed by him as he has not given any finding on them. Interestingly enough, learned counsel referred me to issue No.7 at page 91 of the file ("whether defendant No.l is legal and lawful tenant of the disputed shop") and argued that the Rent Controller has not even yet determined the relationship of landlord and tenant. It appears that the learned counsel was under some delusion since issue No.7 at page 91 of the file is not in the impugned judgment of the Rent Controller but is in the judgment in Suit No.45 of 1976. On the point of remand learned counsel of the respondent bas relied on the case of Mrs. Jan Bai v. Mst. Gulshan (1990 SCMR 1137). In that case eviction order had been passed on the ground of personal requirements of the landlord and while deciding the First Rent Appeal this Court came to the conclusion that even though the order of eviction was justified on the basis of evidence on record but the evidence itself was out of the pleadings and therefore it set aside the ejectment order and remanded the case to enable the respondent/landlord to amend his pleadings whereafter both the parties were permitted to lead further evidence. The appellant partially challenged the order of this Court, supporting it in so far as the ejectment order passed by the Rent Controller was set aside but assailing it in so far as the case was remanded and their Lordships in the Supreme Court came to the conclusion that the setting aside of the ejectment order was interlinked with the order of remand and the two could not be separated and their Lordships further conceded that remand of the case was permissible under the C.P.C. and under the circumstances of the case. This judgment has no relevancy in the present case. No one is contesting that this Court cannot remand a case or that the remand is not permissible under the C.P.C. The only question is whether there is any justification to remand the case under these circumstances and I am of the view that there is no necessity to remand the case to the Rent Controller for the determination of other points as findings thereon are a foregone conclusion and, in fact, have already been given above.

19. I therefore accent the anneal, set aside the impugned judgment and the finding on issue No.l and hold that the rent application was maintainable, that the respondent failed to pay rent and committed deliberate and willful default in the payment of rent to the appellant and that the appellant requires the disputed shop for erection of a new building on the site. Point No.l is therefore decided in the negative and points 2 and 3 in the affirmative and, as a result, an order of eviction is passed directing the respondent to put the appellant into possession of the disputed shop forthwith. In view of the fact that the respondent has not come to the Court with clean hands and has employed dilatory tactics in defeating the rightful claim of the appellant, no time is allowed to him who should also bear the costs of this appeal. AA./M-1873/K Appeal accepted.