2013 PLP 1405 (YLR)

SADIQ HUSSAIN BHATTI, J.

The petitioner is aggrieved by the judgment dated 27-1-2010 passed by learned District Judge, Karachi South in F.R.A. No. 102 of 2009, whereby the learned District Judge dismissed the F.R.A. and maintained the Order dated 26-3-2009 passed by the learned VII Rent Controller, Karachi South whereby the ejectment application filed by the petitioner was dismissed.

2. Brief facts of the case are that the petitioner, claiming to be co-owner/ land-lord of the property bearing Plot No.20, Sheet No. MR-7, Survey No. A-17/17, Market Quarters, Adamjee Dawood Road, Karachi (herein after referred to as "the premises"), filed ejectment application, bearing R.C. No.423 of 2007, against the respondent No.1 on the ground of default in payment of rent which was dismissed vide Order dated 26-3-2009 by the learned VII Rent Controller, Karachi South. The petitioner preferred First Rent Appeal, bearing No.102 of 2009, before the learned District Judge, Karachi South, which was also dismissed vide the impugned Judgment dated 27-1-2010. Hence, the petitioner has approached this Court through the present petition.

3. Mr. Ilyas Khan Tanoli, learned counsel for the petitioner submitted that the petitioner is co-owner of the premises and in such capacity he filed the ejectment application on the ground of default in payment of rent by the respondent No.1. He submitted that the petitioner produced copy of the extract showing the ownership of the premises in his father's name. The respondent also admitted that he used to pay rent to the Rent Collector of the petitioner, namely, Qasim Haji Tayyab. The said Qasim Haji Tayyab was examined who fully supported the case of the petitioner. He further stated that the witness of the respondent No.1 admitted that one Haji Ahmed was owner of the property and he used to pay rent to him. He further contended that though the respondent No.1 denied the relationship of landlord and tenant between the parties but he did not submit any document to show as to who is owner of premises. The learned counsel submitted that the respondent miserably failed to prove that he has been paying rent regularly to the landlord. He also contended that the initial burden to prove the relationship of landlord and tenant between the parties was on the petitioner who, by producing the copy of the extract showing the premises to be in the name of his father (since deceased), shifted the same to the respondent. This burden of proof was not discharged by the respondent. Ordinarily, the learned counsel added, the High Court would not reappraise the evidence under its constitutional jurisdiction but the Court would interfere where findings are found to be based on non-reading or misreading of evidence and arbitrary exercise of powers. In this regard the learned counsel relied on the case of Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and others (2001 SCMR 338). He further added that though there are concurrent findings against the petitioner but since both the orders of the Courts below were based on misreading and non-reading of evidence, the High Court, in its constitutional jurisdiction had to foster the administration of justice by setting aside the two impugned decisions of the Courts below. In support of his contention the learned counsel relied on the case of Mazharuddin v. Hussain Bakhsh and others (PLD 2005 Kar. 205).

4. It is an admitted position that initially the respondent was not the tenant of the petitioner and the property, as shown in the extract produced by the petitioner himself, belonged to one Ahmed, whom the petitioner claims to be his father. Thus, the claim of the petitioner is that he became owner or co-owner of the premises after the death of the said Ahmed. In such like situations where a premises in possession of a tenant has been transferred by sale, gift, inheritance or by such other mode, the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance, 1979") provides a mechanism through which the tenant has to be informed of the change in ownership to enable him to pay the rent to the new owner/landlord. Such mechanism is provided under section 18 of the Ordinance, 1979, which reads as under:-- "

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."

5. From perusal of the above quoted section 18 of the Ordinance, 1979, it transpires that the new owner is required to send an intimation of transfer of the premises to him in writing by registered post to the tenant and the tenant has been provided a period of 30 days' time, after receipt of the notice, to pay the rent due to avoid the consequences as contemplated under clause (ii) of subsection (2) of section 15 of the Ordinance, 1979.

6. The object of the above section 18 of Ordinance 1979 seems to provide protection to a tenant against his eviction of the ground of default if he is unable to pay rent because of any change in the ownership of rented premises on account of sale, gift, inheritance or by any other recognized mode of transfer of property. Section 18 of the Ordinance, 1979 makes it mandatory on the part of the new owner to serve a notice under registered post upon his tenant informing him about the change of ownership of the premises and to call upon his tenant to pay the rent to him and if the latter, upon the receipt of such notice, pays rent due within thirty days from the date when such intimation was received by him, the tenant shall not be deemed to have defaulted. Since it is a beneficial provision, designed and intended for the benefit of tenants and word "shall" has been used by the Legislature therein, it is to be construed liberally so that it may suppress the mischief aimed at, and may advance remedy. In my view a notice in terms of above section is mandatory even when a transfer of ownership pertains to a partial interest. It may be observed that if a new owner of a premises fails to serve above notice on his tenant and if the latter, without having knowledge of the transfer of ownership continues to pay rent to his previous landlord, he shall not be liable to pay rent to the new owner for the period, for which the tenant might have paid rent to the previous owner. Reference in this regard may be made to 1992 SCMR 2400.

7. In the present case it is an admitted position that the petitioner never informed the respondent/tenant about change of ownership through a notice under section 18 of the Ordinance, 1979. Thus, the tenant never came to know that now there is a new owner of the premises and he has to tender rent to the new owner. It was for this reason that the issue "whether there exists relationship of landlord and tenant" between the parties was answered in the negative as the petitioner failed to perform his mandatory duty of informing the tenant/respondent of the change in the ownership of the premises through a notice under section 18 of the Ordinance. It is also an admitted fact that during the life time of the said Ahmed, the petitioner was not collecting rent from the tenant/ respondent.

8. There is no cavil with the proposition, as advanced by the learned counsel for the petitioner, that the High Court in its Constitutional jurisdiction would certainly interfere even in the case of concurrent findings if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverses the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority. Reference can be made to Rahim Shah v. Chief Election Commissioner (PLD 1973 SC 24), Lal Din Masih v. Sakina Jan (1985 SCMR 1972), Muhammad Hayat v. Sh. Bashir Ahmad and others (1988 SCMR 193), Abdul Hamid v. Ghulam Rasul (1988 SCMR 401) and Assistant Collector v. Al-Razak Synthetic (Pvt.) Ltd. (1998 SCMR 2514). In Rahim Shah's case, supra it was held:-- "The scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, bad faith misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted."

9. Learned counsel for the petitioner has failed to point out any illegality in the impugned judgments passed by the two courts below hence interference is declined in exercise of power under Article 199 of the Constitution of Pakistan. Accordingly, this petition is dismissed with no order as to cost. AG/A-40/K Petition dismisse