P L D 1976 Karachi 867 (PLP)

The only question that arises for consideration in this Second Appeal is whether successive notices of demand are required to be given to the tenant for every default committed by him in order to deprive him of the benefit of the protection under proviso (b) to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

2. The facts giving rise to this appeal are that the respondent landlord is the transferee of the subject premises, a shop under Act XXVIII of 1958. The appellant became his tenant on 30-12-1965, being the date of the P. T. O. in favour of the respondent, and admittedly the tenant continued to pay the agreed rent at Rs. 20 per month up to July, 1964. On account of the failure of the tenant to pay further rent, the landlord served upon him with a notice under registered A/D, whereby he not only intimated the tenant about the transfer of the shop but also demanded payment of rent due at the rate of Rs. 20 per month since 1st August 1964. The tenant failed to comply which resulted in an ejectment application which was, on 15-8-1966 withdrawn, on payment of the arrears then due. Following this the tenant again defaulted in payment of rent from May 1967 to January 1968 which resulted in another rent application, which was granted by the Rent Controller and affirmed by the lower Appellate Court. Hence this second appeal.

3. Mr. Saeeduzzaman Siddiqi, the learned counsel for the appellant tenant contended that the tenant enjoyed protection for a period of six years from the date of the transfer. This protection was lost as a result of failure to pay the rent for the period subsequent to 1st August, 1964 which resulted in the earlier Rent Application but with the acceptance of the earlier rent due and withdrawal of the Rent Application, the tenant continued to enjoy the protection which could be lost only if a fresh notice of demand had been made for the subsequent arrears from May, 1967 to January, 1968 by registered post acknowledgment due and the tenant's failure to clear these arrears within a period of three months from the date of the receipt of such demand. The contention, more particularly, was that the first notice of demand for arrears of rent from August, 1964 resulted in a compromise and with it the landlord was left with no cause of action to proceed against the tenant under the West Pakistan Urban Rent Restriction Ordinance, 1959, and for subsequent default the landlord was, required to give the tenant a notice under clause (i) of subsection (3) of section 30 of Act XXVIII of 1958 and only its non-compliance within three months will result in application of Rent Ordinance to the parties.

4. Mr. Maroof Ali Khan, the learned counsel for the respondent, however, contended that once the protection of three years is lost by reason of non-compliance of a demand made under clause (i) of subsection (3) of section 30, the relationship of transferee-landlord and the tenant is to be regulated in accordance with the law for the time being in force relating to such relationship as provided for under subsection (4) of section 30.

5. There appears to me conflict of decisions on this question for at least two decisions, one reported in Abdul Aziz v. West Pakistan Publishing Co. (Private) Ltd. (P L D 1965 Lah. 82 ) and the other in Azizul Hassan Khan v. Haji Mohd. Ismail (P L D 1972 Lah. 142) support the contention raised on behalf of the appellant while the observations made by Anwarul Haq, J., in the case reported in Jiando Khan v. Hakim Mohd. Ishaq (P L D 1964 Kar. 61) and the observations of the Supreme Court in the case of E. A. Evans v. Mohammad Ashraf (P L D 1964 S C 536) support the contention of the respondent. I may at once state that in none, of these cases the question raised herein was directly in issue. The two Lahore cases relied upon by the appellant do not give any reason in support of its view that it is necessary to serve notice of demand contemplated by clause (1) of sub. section (3) of section 30 each time there is a default. On the other hand Anwarul Haq, J., in the judgment reported in Rando Khan v. Hakim Mohd. Ishaq has observed as follows:- "It seems to me that this notice clearly satisfies the requirements of proviso (b) to subsection (1) and clause (1) of subsection (3) of section 30 of the Act. The notice of demand contemplated in clause (1) of subsection (3) is only one notice for the arrears relating to the period after the transfer, and does not appear to me to relate to every successive default. It is clear that the intention of the Legislature was to provide for allowing a reasonable time to the tenants to clear the arrears of rent accruing in favour of the transferee, and not to so materially alter the relationship of landlord and tenant that even in cases of monthly tenancies every time a default accrues, a notice of three months has to be given. The result, therefore, is that in the present case, notice of transfer and notice of demand having been given simultaneously, and the appellant having defaulted in the payment of the arrears within the period of three months from the date of the notice, he has forfeited the protection allowed by section 30 of the Act, and his case is governed by the ordinary law of the land. The learned Rent Controller, therefore had jurisdiction to proceed in this matter." 'There is yet another decision from Lahore reported in Saeed Ahmed v. Ziatunnissa (P L D 1967 Lah. 196) in which my learned brother A. R. Shaikh, J., felt bound by the dictum of their Lordships of the Supreme Court in Evan's case, in holding that no second notice of demand under section 30 was necessary. The Supreme Court had in the Evan's case observed that : "It may not be necessary to serve such a notice of demand each time there is a default, but at any rate at least one notice of demand has of necessity to be served to deprive the tenant of the protection." I am not only in respectful agreement with the reasoning of Anwarul Haq, J., reproduced hereinabove but I like my learned brother A. R. Shaikh, J., feel bound by the dictum of the Supreme Court in Evan's case that no second notice was required.

5. It was next contended by Mr. Saeeduzzaman Siddiqi that there was no evidence in this case that at least one notice of demand which is of necessity to be served upon the tenant to deprive him of the protection was ;given in this case. The answer to that is that the appellant-tenant had admitted receipt of such notice in reply to paragraph 4 of the Rent Application in which reference was made to such a notice.

6. Lastly, it was contended that the respondent-landlord had contrary to law recovered from the tenant for certain period rent at the enhanced rate of Rs. 25 instead of Rs. 20 and that the rent so received would more than off set the arrears allegedly in default. I gave Mr. Saeeduzzaman Siddiqi an opportunity to so demonstrate from the existing record but he frankly conceded that he was unable to do so for the relevant data was not available.

7. The result is that this appeal is dismissed with cost. The appellant will have four months' time to vacate the premises. S. Q. Appeal dismissed.