P L D 1996 Karachi 136 (PLP)

This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 24‑4‑1989 passed bi learned IV Senior Civil Judge and Rent Controller, Karachi‑South in Rent Case No. 208/85 Nisar Ahmed and another v. Sharafullah whereby ejectment application was dismissed as per impugned order. Brief facts of the case are that Syed Afzal Ahmed Hyderi previous owner/landlord filed Ejectment Application No.1685/76 against the respondent on 10‑4‑1976 under section 13 of repealed West Pakistan Urban Rent Restriction Ordinance, 1959, on the ground that the respondent has failed to pay rent at the rate of Rs.34 from 1‑1‑1975 plus Rs3.91 towards water and conservancy charges since July, 1969 therefore respondent/tenant was defaulter and was liable to be evicted from Flat No.R.C.7/10‑11 behind Edge Maidan, Karachi. The respondent/tenant filed written statement on 29th October, 1987 stating therein that monthly rent of Rs34 included taxes as well and that he was not defaulter in payment of rent since 1‑1‑1975 and further that when Syed Afial Ahmed Syed was owner of the flat in question he made demand of enhanced rate of rent in the month of March, 1976 to which respondent/tenant did not agree and previous owner/landlord refused to accept rent, therefore the respondent/tenant deposited rent in Miscellaneous Rent Case No.2004/76 and when Mr. Ghulam Mohiuddin, predecessor‑in terest of the appellants purchased the property, the respondent deposited rent in the name of appellants in Miscellaneous Rent Case No.5189/80 till December, 1987. The appellant/landlord filed an affidavit‑in‑evidence of Fayyaz Mohiuddin who has produced a photocopy of agreement dated 11‑8‑1987. The respondent/tenant riled affidavit‑in‑evidence of Mr. Moinuddin attorney of the respondent who has produced (i) special power of attorney executed by respondent in favour of Moinuddin, (ii) photocopy of notice dated 3‑&1976, (iii) photocopy of notice dated 28‑6‑1976, (iv) certified true copy of letter of an advocate dated 26‑8‑1980, (v) certified copy of application under section 13(6) of Explanation 11, West Pakistan Urban Rent Restriction Ordinance, 1959 as Exh.0/4. (vi) photocopy of rent receipt for the sum of Rs.34 deposited in Miscellaneous Rent Case No. 2004/76 on 14‑6‑1976, (vii) certified true copy of application for withdrawal of rent alongwith order thereon and the statement showing the deposit of renuin the Court as Annexure 015, (viii) certified true copy of an application under section 10(3) of Rent Ordinance, 1979 as Ex.0/6 alongwith order dated 20‑9‑1980 of Controller, (ix) certified true copy of application for withdrawal of rent alongwith order dated 19‑12‑1987 for Rent Controller and the statement showing the deposit of rent and (x) three rent receipts in Miscellaneous Rent Case No.5189/80 as Exh.0/8 to Exh.0/10. After recording the above evidence and hearing the learned counsel, the learned Rent Controller dismissed the ejectment application on 24th April, 1989 as per impugned order, hence this appeal was preferred. I have heard Mr. Muneeb Ahmad Khan, learned counsel for the appellant, and Mr. Muhammad Afzal Khan, learned counsel for the respondent, and perused the record and proceedings of the case and the case law cited by the parties' learned counsel. Learned counsel for appellant has referred to para.4 of ejectment application where the respondent is stated to have failed to pay rent from 1‑1‑1975 and water and conservancy charges since July 1969 and in paras3, 4 and 5 of counter‑affidavit, Fayyaz Mohiuddin appellant has corroborated the statement in respect of non‑payment of rent made in the ejectment application. Learned counsel has submitted that as per certified true copy of the application for withdrawal of rent dated 4‑2‑1989 the respondent deposited rent for 14 months amounting to Rs.496 from 1‑1‑1975 to March, 1976 and thereafter an amount of Rs.34 was deposited on 14‑&1976 towards the rent for the month of April, 1976. He has contended that appellant's evidence is consistent with the pleadings and the default in the payment of rent for the stated period has been proved as the monthly rent was not paid or tendered within sixty days therefore finding of Rent Controller on the point of default in payment of rent was erroneous in view of evidence on record and the case law. He has argued that the ejectment application on the ground of default in payment of rent which occurred during the period of previous owner/landlord was maintainable and he has further contended that respondent failed to pay water and conservancy charges therefore also there was default in the payment of rent. Learned counsel for the appellant has placed reliance upon (i) Arshad Mahmood Siddiqui v. Muhammad Haroon (1984 CLC 1750), (ii) Zahoor Ahmad Qureshi v. Syed Ijaz Ali Rizvi (1980 CLC 1223), (iii) Muhammad Hafeez v. Muhammad Suleman and another (1979 CLC 757) and (iv) Khuda Bux and another v. Teekoomal and another 1986 CLC 1923 in support of his contentions. It is stated by learned counsel for the parties that a fresh tenancy agreement was entered into between the parties on 11‑8‑1982 but the terms of the said tenancy agreement were not acted upon, therefore, the terms of said agreement be not considered for the disposal of this appeal. Learned counsel Mr. Muhammad Afzal Khan, for respondent has argued that there is no evidence for the default in payment of rent and that respondent was not liable to pay separately water and conservancy charges and further the appellants/landlords never intimated the respondent about the payment of taxes therefore on the said account as well there could not be default for the payment of rent. He has placed reliance upon Ghayasuddin Ahmad v. Abdul Wali (1986 CLC 1513), Mst. Hashmi Begum. v. Mst. Alya Zohra Begum (PLD 1989 Lah. 223) in support of his contentions. The first point which is important to be determined is that if the rent is not paid to the landlord/owner and ejectment application is filed by him against the tenant and during the pendency of such proceedings, the building is sold by him and the new owner is substituted in place of previous owner, whether such ejectment application on the ground of default for non‑payment of rent by the successor‑in‑interest could continue and would be maintainable in law. The point must be answered in the affirmative. Reference is made to case Arshad Mahmood v. Muhainad Haroon reported in 1984 CLC 17501 wherein learned Judge in Chamber has held that defeat committed in respect of rented property being not personal would pass to the landlord alongwith, either rights benefits, advantages under the sale‑deed and the new owner being successor to the previous landlord would be entitled to prosecute a rent application on the ground of default available to him. Learned Single Judge has also relied upon the cases Adil Brothers, Karachi v‑ Amin Art Press and others Pl,D 1976 Karachi 5‑1 and Muhammad Liaque v. Abdul Haq and 2 others 1982 CLC

665. In the instant case the deed of conveyance dated 13‑5‑1976 registered on 17‑5‑1976 between Syed Afzal Ahmad Hyderi and Ghularn Mohiuddin at page 3 of para‑ 1 states that vendors. as true, and absolute owner of the said property hereby sell, convey, grant, assign, transfer and assure unto the vendee absolutely and for ever the improved Property fully ‑,honour and described in the schedule given at the foot of these presents free. from all encumbrances charges, liens, together with the right, title and interest of the vendors, in to and upon the said property and every part thereof and in para. 2 at page. 4 of, the Deed, it states that vendee shall henceforth be sole and absolute owner in possession thereof and would enjoy the same rights and privileges in respect of property in question which were enjoyed by vendors uptil now and vendors shall from time to time and at all times hereafter at the costs of the vendee do cause to be done all lawful and reasonable acts, things. deeds and matters to make the tide of the vendee good. The above statement made in the deed on record would show that successor of Syed Ahmad Hyderi has been transferred all rights, title and interest in the premises in question so also the right to pursue the ejectment case pending against the respondent on the ground of default in payment of rent which being not personal one, would be passed on to the successor/landlord therefore on ground of default in the non‑payment of rent the eviction under the law could be ordered in case' default is proved to have taken place. Reference is also made to Zahoor Ahmad v. Syed Ijaz Ali 1980 CLC 1223 wherein learned Judge in Chamber observed at page 1226:‑‑ "No doubt, in none of these authorities the plea of subletting was raised for seeking ejectment of the tenant but the principle which can be deduced therefrom is that if a landlord takes out ejectment proceedings against his tenant on any ground which is not personal to him (original landlord), his successor‑in‑interest can also prosecute these proceedings. The ground of subletting too is not personal to a landlord. 1, therefore, agree with the learned Additional District Judge that Mst. Surraya Jabeen could prosecute the ejectment proceedings on the said ground." In Muhammad Hafeez v. Muhammad Suleman 1979 CLC 757 case, learned Judge in Chamber held that transferee landlord can seek ejectment on the score of such cause of action which had accrued in favour of original landlord on the basis of subletting. In Khuda Bux and another v. Teekoomal and another 1986 CLC 1923 learned Judge in Chamber at page 1926 observed that transfer pf ownerWp during ejectment proceedings on the ground of default committed by the tenant would subsist for benefit of subsequent owner as well. Reference has also made by the learned Single Judge to Abdul Rauf v. Nawab Ali (PID 1986 Karachi 117), 1980 CLC 1223, 1979 CLC 757, PLD t976 Karachi 53, PLD 1962 Dacca 600 and AIR 1955 SC (Ind.) 376 in the above cited decision. The facts of the Ghayasuddin Ahmad's case reported in 1986 CLC 1513 are distinguishable, to the facts of the instant case as in the case before me the previous, owner had filed the ejectment applicator, against the respondent/tenant on the ground of fault and during the pendency of ejectment application the property in question was sold out by him to the father of the present appellants who were then substituted in place of previous owner under the orders of Controller and thereby the default which occurred during the period of ownership of previous owner passed Dn to its successor‑in‑interest the father of appellants. hence the case above by the respondent's council is not applicable. In the circumstances of the case it could safely be said that in case default is proved to have taken place during the period of previous owner then the appellants being subsequent owner/landlord could maintain their action for ejectment against the respondent/tenant on the ground of default in the payment of rent and the latter could be evicted from the premises in question. text point for consideration is the respondent/tenant is defaulter in the payment of rent. There is no tenancy agreement between the parties fixing the period for payment of rent therefore the monthly rent would learned payable within sixty days after monthly rent becomes payable and the monthly rent would become payable after the expiry of a month‑Thus study days have to lapse from the period for which rent is payable by the tenant before the landlord can seek eviction of tenant under section 13 of repealed Rent Ordinance, 1959 as well as order under section 15(2)(ii) of Rent Ordinance, 1979 hence the plea of learned counsel for appellants that rent should be paid within 60 days from the day it was payable has no merit. preference is made to Syed Shia Gul v. Haji Abdul Majid PLD 1968 Ouetta

45. As per rent withdrawal application dated 4‑2‑1989 filed with this appeal record would show that an amount of Rs.496 was deposited on 7‑5‑1976 which being the rent from 1‑1‑1975 to March, 1976, there would be default in the payment of rent for the months of January, 1975 to February, 1976, as the rent for the said months was not deposited by the respondent within 60 days after the monthly rent for the above said months became due under the rent laws. In para. 3 of the ejectment application the previous owner of the premises in question stated that the respondent/tenant has filed to pay rent since 1‑1‑1975 and the water and conservancy charges since July, 1969 at the rate of Rs34 plus Rs.3.91 respectively. Fayyaz Mohiuddin in his affidavit‑in confidence has stated in paras. 3 and 4 that the respondent was liable to pay rent from January 1975 to July, 1976 at the rate of Rs.34 per month plus Rs.3.91 towards the water and conservancy charges and that the respondent was defaulter in the payment of rent from 1‑1‑1975 and water and conservancy charges from July, 1969 of the shop in his occupation therefore previous owner had to file ejectment application against him on 10‑4‑1976 and thereafter respondent made a deposit of Rs.496 on 7‑5‑1976 being the rent from January, 1975 to February, 1976 and deposited Rs.34 for the month of March, 1976 on 14‑6‑1976 in the, name of previous owner Syed Afzal Ahmad Hyderi and thereby made wilful default in payment of rent. Appellant Fayyaz Mohiuddin in the cross‑examination stated that his father purchased the property when ejectment application was pending before the Controller and that arrears of rent claimed in the case pertained to the period of previous ‑owner and that there was nothing in writing by previous owner permitting the appellant to recover arrears of rent and that he was having no personal knowledge about the rent dealing between the respondent and the Previous owner ‑and further the appellant denied that the respondent has not committed default in the payment of rent and the appellant admitted that the respondent was depositing rent in MRC No.2004/76 and that his father through Mr. Masood Butt, Advocate, served a notice upon the respondent/tenant and appellant denied that the appellant did not make demand for the rent from respondent/tenant. In the entire cross‑examination of appellant there is no suggestion in affirmative from the side of the respondent that rent from 1‑1‑1975 up to March 1976 was paid or tendered by the respondent to the previous owner Syed Afzal Ahmad Hyderi. The only suggestion made in the cross‑examination is that respondent/tenant was depositing rent in MRC 2004/76. The respondent in the written statement has not stated that the previous owner sometimes used to issue rent receipts and sometimes he did not issue rent receipts but in the affidavit‑in‑evidence respondent has improved his statement that previous owner sometimes used to issue rent receipts and sometimes he did not issue rent receipts but in the cross‑examination respondent attorney stated that he could not produce the rent receipts. The respondent's attorney admitted that rent amounting to Rs.496 was deposited in Miscellaneous R.C. No.2004/76 for 14 months in April 1976 (as per certified copy of application dated 4‑2‑1989, rent was deposited on 7‑5‑1976) and Rs.34 was deposited on 14‑&1976 as Rs.68 was deposited on 14‑9‑1976. I have gone through the evidence on record whereby it stood proved E from the documentary and oral evidence on record that the rent for the period from 1‑1‑1975 to 31st March, 1976 was deposited on 7‑5‑1976 therefore the monthly rent for the months from January, 1975 to 29th February, 1976 was riot paid within sixty day‑, when the monthly rent became due. The respondent in the written statement did not disclose anything about the rent receipts but in his affidavit‑in‑evidence has improved his case by stating that sometimes rent receipts were issued by the previous landlord and sometimes, it were not issued but not a single rent receipt was produced by him and has withheld the material evidence where under the adverse inference would be drawn that if it would have been produced the same would have gone agar the respondent. it will also not be out of place to state that the respondent started depositing rent for the first time on 7‑5‑1976 i.e. after the filing of ejectment application on 10‑4‑1976 whereas the respondent's Advocate filed power‑of‑attorney on 17‑5‑1976. The, testimony of the respondent is not confidence inspiring in view of the above‑stated evidence and of withholding of material evidence and improvement made therein. The evidence of the appellant/landlord is consistent with their pleadings and the veracity of the appellant/landlord could not be shaken in the cross‑examination and no satisfactory rebutting evidence has been brought on record by the respondent/tenant. On the contrary in the cross‑examination the respondent's attorney Moinuddin admitted that his rent in MRC No.2004/76 in April, 1976 and deposited Rs.496 which was rent for 14 months and the rate of rent was Rs.34‑ and there was Rs.20 in excess of rent. The respondent /tenant has not produced any rent receipt for the period from 1‑1‑1975 till he made deposit in Court on 7‑5‑1976. If the previous owner had refused to accept ‑rent or to pass on any receipt then it was the duty of the respondent to send the rent through money order or to deposit with the Rent Controller but nothing has been said by the respondent about the repayment or tender of rent prior to 7‑5‑1976 which would prove that the respondent had failed to pay monthly rent for the months from January, 1975 till 29th Fabruary , 1976 within time prescribed by law. There, is nothing on record to show that the appellant made specific demand about the payment of water and conservancy charges from the respondent therefore he could not be held to be defaulter for non‑payment of water and conservancy charges. Reference is made to Mst. Hashmi Begurn v. Mst Alya Zohra Begum, 1985 MLD 1514. No other plea has been raised by the partice learned counsel before me. The finding of Rent Controller on the point of default is not sustainable which is hereby set aside and the appeal is allowed on the ground of default in the payment of rent. However, the respondent is directed to hand over the vacant possession of the premises in question to the appellant within the period of 90 days from the date of this order subject to deposit of rent if any due with the Rent Controller. H.B.T./569/K Appeal allowed.