P L D 1976 Karachi 963 (PLP)

Jhamat Jethanand for Respondent No.

1. Respondent No. 2 (absent). Dates of hearing : 27th and 28th January 1976. These two second appeals under the Rent Restriction Ordinance between the same parties may conveniently be disposed of by a single Judgment.

2. The subject-matter of these appeals is a garage bearing City Survey No. C/237, situate at Hyderabad, which was in possession of respondent Syed Ghayur Hussaia Jaffery, under a valid allotment order dated 17-12-1958 and provisionally transferred to him under the Settlement Law in the year 1959. It is a case of the respondent No. 2, Dr. Siddiqi, that Syed Ghayur Hussain rented the said garage to him on 3-9-1961. On 12-10-1962, the P. T. O. in favour of Syed Ghayur Hussain was cancelled and the garage was provisionally transferred in favour of the appellant, Mst. Naair Bano. The P. T. D. in her favour is dated 23-6-1965. Syed Ghayur Hussain challenged the cancellation of the transfer in his favour and the transfer in favour of the appellant but without success. The litigation between the appellant and Syed Ghayur Hussain ended with the dismissal of the petition for special Leave to Appeal by the Supreme Court of Pakistan on t9-8-1971. During the pendency of this litigation the appellant landlady served upon Syed Ghayur Hussain notice dated 16-9-65 under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act XXVIII of 1958) in which it was alleged that Ghayur Hussain had sublet the property to Dr. Siddiqi and that he had failed to pay rent for 35 months commencing from 12-10-1962, and the arrears up to 11-9-1965 amounting to Rs. 8 15 was demanded. On 18-8-1966, the landlady filed eviction application against Syed Ghayur Hussain and said Dr. Siddiqi on the grounds of subletting and default in payment of rent since 12-10-1962.

3. The Rent Controller framed a preliminary issue as to whether relation ship of landlord and tenant existed between Syed Ghayur Hussain and the appellant landlady. This issue was answered in the affirmative. As regards the respondent No. 2 Dr. Siddiqi the Rent Controller held that he continued to be in possession through Syed Ghayur Hussain and rejected the plea on his behalf that he had become a contractual tenant of the appellant, as he did not step into the shoes of Syed Ghayur Hussain following the cancellation of the Provisional Transfer Order in his favour. The Rent Controller then went on to grant the application as according to him no further proceedings were necessary, for it was not the contention of Syed Ghayur Hussain that he had paid any rent to the appellant landlady.

4. This order was challenged in appeal by the respondent No. 2 Dr. Siddiqi. The learned District Judge, Hyderabad, came to the conclusion that since Dr. Siddiqi was in possession of the premises (and not Syed Ghayur Hussain), on the date of its transfer in favour of the appellant landlady, he was entitled to a notice under section 30 of Act XXVIII of 1958 and also notice under section 13-A of the Rent Ordinance in the absence of which eviction application against him was not maintainable. The learned Judge was in these circumstances of the view that the Rent Controller had prematurely granted the ejectment application without considering the possession of Dr. Siddidi and, therefore, proceeded to set aside the order of the Rent Controller and remanded the case for fresh trial of all the issues praised by the parties. Second Appeal No. 100 of 1970 is directed against -this order.

5. On remand the Rent Controller found that Syed Ghayur Hussain was ,the statutory tenant of the landlady; that Dr. Siddiqi was the tenant of Sayed Ghayur Hussain but his tenancy terminated on cancellation of the P. T. O. in favour of Syed Ghayur Hussain. The Rent Controller rejected the contention that on transfer of the premises in favour of the appellant landlady, Dr. Siddiqi became her tenant. He held that Dr. Siddiqi was a -sub-tenant of Syed Ghayur Hussain, the statutory tenant and proceeded to grant the ejectment application on the ground that the main tenant having failed to pay the rent, the landlady had made out a case for ejectment.

6. The appeal filed by Dr. Siddiqi the second Additional District Judge, Hyderabad reversed the order of the Rent Controller. The Appellate Court came to the conclusion that Syed Ghayur Hussain as a provisional transferee was entitled to let out the premises to Dr. Siddiqi; that Syed Ghayur Hussain was the recorded tenant of the garage but as he had surrendered its possession to Dr. Siddiqi during the subsistence of his title, the status of Dr. Siddiqi was that of tenant and not a sub-tenant. The Appellate Court further held that the landlady who had become a transferee in 1962 could not have commenced proceedings against Dr. Siddiqi on 18-8-1966 without serving upon him a notice under section 13-A of the Rent Ordinance. The appeal was, therefore, allowed by Judgment dated 30th September, 1974, which is impugned in Second Appeal No. 242 of 1974.

7. Mr. Jhamat Jethanand, the learned counsel for Dr. Siddiqi conceded that in terms of section 30 of Act XXVIII of 1958 Syed Ghayur Hussain became the statutory tenant of the landlady but went on to argue that the .eviction application of the landlady against Dr. Siddiqi was not maintainable without a notice under section 13-A of the Rent Ordinance for Dr. Siddiqi was in possession of the premises as a tenant prior to its transfer in favour of the landlady. This section provides that where an ownership of a building is possession of a tenant has been transferred by way of sale, gift, inheritance or in any other manner whatsoever 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 and the tenant shall not be deemed to have .defaulted in payment of rent if the rent due is paid within 30 days, from the date of such intimation. For more than one reason section 13-A has no appli cation to the facts of the present case. Firstly, this section was added to the Rent Ordinance on 8-6-1965 and has been held to be prospective only by the Supreme Court of Pakistan. The learned counsel contended that the section ,was in force on the date on which the landlady filed her eviction application but to my mind the date relevant is the date for transfer, of ownership for otherwise the tenants who had accepted a new landlord and paid rent to him, howso ever prior in point of time, would be entitled to a notice under section 13-A before a case is made out against them of default in payment of rent. Even otherwise the section envisages a tenant, his landlord and transfer of owner ship from that landlord to a new landlord. It has no application when the new landlord is not a successor-in-interest of the old landlord. The learned counsel contended that the transfer contemplated by the section is in any manner whatsoever which would include an independent transfer in favour's of a person and not necessarily a transfer between the two landlords, the old :and the new. In my view transfer from one person to another contemplated by the section, irrespective of its mode, is between an existing tenant's land lord to a new landlord. Faced with this situation, the learned counsel contended that on the cancellation of the P. T. O. in favour of Syed Ghayur Hussain and its subsequent transfer in favour of the landlady, Dr. Siddiqi became the direct tenant of the landlady. If the argument is accepted then there would be two independent tenants of a single landlady. in respect of the same premises, namely, Syed Ghayur Hussain as the statutory tenant and Dr. Siddiqi having been inducted in the property. I am even otherwise unable to see how Dr. Siddiqi can be said to have become the tenant of the landlady. Dr. Siddiqi was inducted in the property by Syed Ghayur Hussain 5' and be must fail or stand by such title as may be possessed by Syed Ghayur Hussain. Therefore, with the cancellation of the P. T. O. in favour of Syed Ghayur Hussain the tenancy created by Syed Ghayur Hussain in favour of Dr. Siddiqi must necessarily come to an end for there is no method by which it can be said that Dr. Siddiqi became the tenant of the landlady.

8. Lastly, Mr. Jethanand contended that Dr. Siddiqi became the tenant of the landlady by reason of repeal of subsection (6) of section 2 of Act XXVIII of 1958 on 28-7-1973. The argument was that Dr. Siddiqi was in possession of the premises on the date of its transfer in favour of the landlady and he by virtue of this deletion became the tenant of the landlady. The argument proceeds on the assumption that the repeal of the said subsection (6) of section 2 by Act IV of 1973 has retrospective effect. I am unable to agree with the learned counsel that the repeal was of a procedural C' character only for the repeal has the effect of denying statutory tenancy to persons in possession as on 20-12-1958 and instead clothing that tenancy on persons in possession of the premises on the date of its transfer in favour of a displaced person found entitled to the same.

9. The result is that Syed Ghayur Hussain was the tenant of the land lady as on the date on which she filed her eviction application and though she was not entitled to the order sought on the ground of subletting, for Dr. Siddiqi had come into possession prior to the transfer in her favour, she was certainly entitled to ejectment against Syed Ghayur Hussain for he had admittedly not tendered any rent in spite of notice under section 30 of Act XXVIII of 1958 and the deposit of rent by Dr. Siddiqi could not have avoided this result.

10. This appeal is, therefore, allowed with the result that the order made by the Additional District and Sessions Judge dated 12-2-1970 is set aside and the order of the Rent Controller dated 15-8-1969 is maintained. Dr. Siddiqi will have one month's time to vacate the premises. In the circumstances there will be no order as to cost. S. Q. Appeal allowed.