1995 PLP 414 (MLD)

5. From the side of applicant affidavit in evidence of Muhammad Azam attorney, and son of the appellant was filed. He produced letters of his Advocate regarding .payment of Rs.5,000 and Rs.500 by way of pay order, acknowledgement receipts, copies of pay order of Rs.5,000 certificate of Muhammad Lateef Butt, Councillor, money order receipts, and deposit slips ire MRC No. 353 of 1990. Affidavit in evidence of Muhammad Lateef Councillor, Zawar Iqbal were filed. All these witnesses were cross‑examined.

6. Learned Advocate for the appellant has argued that immediately within 10 days of receipt of notice the appellant has cleared the arrears of Rs.5,000 i.e. rent from April, 1986 to May, 1990. Before filing of the rent application on 4‑9‑1990 appellant by pay order of Rs.600 had paid rent for 6 months, and subsequently paying rent by depositing the same No. 353 of 1990. He has further argued that the appellant cannot claim the benefit of default of rent for the time between death of Abdul Muneem Khan and notice under section 18 of the Sindh Rented Premises Ordinance, 1979 as has become landlord by way of inheritance only after the death of her husband. He has placed reliance on cases reported as 1994 SCMR 1918.

7. The learned Advocate for the respondent has argued that payment' of rent through pay order is not the proper mode of payment of rent under section 10(3) of Sindh Rented Premises Ordinance. He has further stated that this pay order was also returned to the appellant. Amount of that pay order is not deposited in Court. The learned Advocate argued that appellant has committed default first before the notice dated 16‑6‑1990 and after the notice as no payment has been proved. He has relied on cases reported in 1991 MLD 1084,1989 CLC 157 and 1991 SCMR 1029.

8. In the case of Haji Usman Bhai v. Syed Ali Imam Zaidi anted 2 others (1994 SCMR 1918), "it has been held that a distinction is to be drawn between a default which is committed during the ownership or lifetime of the previous landlord and the one which is committed after the transfer of ownership by virtue of sale, gift or inheritance. In the normal course a successor‑in‑interest will be entitled to press into service default committed by a tenant during the ownership of lifetime of the previous landlord but in the latter case the default can be pleaded in terms of section 18 of the Ordinance".

9. Section 18 of the Ordinance reads as follows:‑‑ "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, 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."

10. In the case of Samina Begum v. Muhammad Ali (1991 MLD 1084), "it has been held non‑services of notice under section 18 of the Ordinance, it is duty of a tenant to pay rent to original owner so long as he was unaware of change of title and to the new owner after he became aware of change of title on institution of ejectment application against him".

11. In the case of Mst. Muhammad Nisa v. Anwar Ali (1989 CLC 157), "it has been held landlord being vendee of disputed premises in occupation of tenant by producing on record two un-served notices, contested that tenant was aware of change of ownership while the tenant denied the same. Landlord and tenant closely related to each other were next door neighbours, inference could be drawn that tenant was aware of purchase of disputed premises in favour of landlord".

12. In the case of Abdul Kadir and another v. Muhammad Yakoob (1991 SCMR 1029), "it has been held that tenant before receipt of notice of change of ownership had paid rent for period in question, to previous landlord and thereafter deposited rent for succeeding months with Rent Controller upon filing a miscellaneous application".

13. Heard the Advocate of both the parties and perused R&P. In this case the notice about ownership has been received by the appellant on 16‑6‑1990. Appellant has sent a pay order in the sum of Rs.5,000 on 26‑6‑1990. In this case neither the respondent nor the appellant were examined in the lower Court, but their attorneys were examined. Receipt of this pay order has been acknowledged even in ejectment application. In affidavit in evidence of the attorney of the respondent, has been deposed by the attorney of the respondent that this pay order has been returned to the appellant. But no such question has been put to attorney of the appellant.

14. It is clear that pay order of Rs. 5,000 has been sent to the respondent. There seems to be no reason as to why he should return the pay order; unless in his opinion this would create a ground for filing ejectment application. If he had actually returned the pay order dated 26‑6‑1990, then he would have mentioned it in ejectment application filed by him on 4th September, 1990. It is admitted that this pay order is not cashed, from circumstances it appears that it is still lying with the respondent.

15. The fact of Rs. 600 being received by the respondent is also admitted in cross‑examination of the respondent's attorney.

16. In view of the decision of Haji Usman Bhai v. Syed Ali Imam Zaidi and 2 others (1994 SCMR 1980; default committed by the appellant during the lifetime of respondent's husband Abdul Monium will not be a ground for ejectment. Default, if any, after receipt of notice under section 18 of Sindh Rented Premises Ordinance will be a ground and also arrears of any period before receipt of notice under section 18 of the Ordinance if not paid within thirty days.

17. The appellant's attorney has clearly stated that appellant came to know about the death of Abdul Monium husband of respondent only after the receipt of notice dated 16‑6‑1990. It also came on the record that the respondent had shifted away to Gulshan‑e‑Iqbal, and her husband's previous residents near shops remained closed. Two witnesses Muhammad Latif Butt Councillor and Zarrar Ahmad have been examined on this point.

18. In this case, the arrears of the rent has been paid within thirty days of the notice under section 18 of the Sindh Rented Premises Ordinance, 1979 and rent of month subsequent to which under section 18 of Sindh Rented Premises Ordinance, 1979 has also tendered on due date as such there is no subsequent default. The case‑law produced by the learned counsel are not relevant to this case. In view of the above discussion, impugned order is set aside and the appeal is allowed, with no order as to costs. H.B.T./M‑2014/K??????????????????????????????????????????????????????????????????????????????? Appeal allowed.