1979 PLP 720 (CLC)

This second appeal is directed against the order dated 12-8-1976 passed by the learned 4th Additional District Judge, at Karachi. The facts leading to the filing of the above appeal are that the respondent purchased the shop in dispute on 4-9-1972 (hereinafter referred to as the shop). After purchasing the shop the petitioner served a notice dated 29-9-1972 on the appellant informing him chat the respondent had purchased the shop. The appellant was also called upon to pay rent with effect from 1-9-1972. It may be noted that the above notice has been denied by Mr. Kazi, the learned counsel for the appellant on the ground that the same was not received by the appellant. After that the respondent sent another notice dated 30-3-1973 Exh. 7 calling upon the appellant to pay the arrears with effect from 1-9-1972 amounting to Rs.

175. The above notice was replied to by the appellant through his Advocate's letter dated 10-4-1973 in which inter alia it was stated that he was regularly depositing rent in Miscellaneous Rent Application 39/72 in the Court of Ist Civil Judge, Karachi, and had deposited the rent upto date. It was also stated that the previous landlord was avoiding to receive the rent in order to make the appellant a defaulter, and, therefore, he had to deposit the rent in the Court. The respondent was requested to satisfy the appellant about his title so that he may start paying rent to him. After that the respondent served another notice dated 17-7-1973 purporting to be under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, stating therein that he was not interested in letting out the shop to any one and that he wanted the vacant possession of the shop. This letter was also replied to by the appellant through his Advocate's letter dated 30-7-1973, in which the appellant inter alia stated that he was ready and willing to pay the rent and requested the respondent to collect the rent before the 10th of each calendar month from his shop. It appears that after that the present respondent filed an ejectment application on the two grounds, namely, (a? default in payment of rent for the period from 1-9-1972 to 30-4-1974, (b) for personal bona fide requirement. ,

2. The appellant resisted the above ejectment application and filed written statement in which he submitted that he was depositing rent regularly in Misc. Application No. 39/72 for the reason, that the previous landlord was deliberately avoiding the receipt of the rent. The learned Rent Controller dismissed the application on both the grounds. Being aggrieved by the above order the respondent filed an appeal before the learned Additional District Judge, who through his impugned order dated 12-8-1976 allowed the appeal on the ground of default but did not accept the respondent's contention of bona fide personal requirement. The appellant being aggrieved by the above order filed the present appeal. The respondent has also filed cross objections to the above appeal on the ground that the finding of the two Courts below on the point of personal requirement was not in accordance with law.

3. Mr. Ashraf Kazi, learned counsel for the appellant has contended that there was no default as the appellant was regularly depositing rent in Misc. Application No. 39/72, inasmuch as the learned Rent Controller through his order dated 19-11-1974 allowed the appellant to withdraw the above amount from the aforesaid Miscellaneous Application No. 39/72 and to deposit the same in the aforesaid ejectment application filed by the respondent. The sole question for consideration is, as to whether the learned Appellate Court was justified in upsetting the older of the learned Rent Controller on the ground of default which plea was not accepted by him In support of the order of the first appellate Court. Mr. Gharib Nawaz, learned counsel for the respondent has relied upon the three notices, namely, Exhs. 6, 7 and

14. As observed hereinabove that Mr. Ashraf Kazi ]carried counsel for the appellant has denied the receipt of Exh.

6. Whereas the learned counsel for the respondent has contended that the above notice was in fact received by the appellant. The respondent has not produced the postal acknowledgement of the aforesaid notice, on the contrary, the appellant's son in his statement has stated that first time his father had received the notice after 7 months from the date of the alleged purchase, i.e. on 30th March, 1973. The respondent did not cross-examine the aforesaid witness on the above point and, therefore, in the absence of the postal acknowledgement receipt; it cannot be said that in fact the above notice was served on the appellant.

4. We are, therefore, left with the two notices, namely, Exh. 7 which is a notice dated 30-3-1973 where by the appellant was informed by the respondent that he had purchased the shop. The appellant was also called upon to pay rent with effect from 1-9-1972. It may be observed that Exh. 8 is the acknowledgement of the above notice. In reply to the above notice the appellant addressed a letter through his Advocate dated 10-4-1973, Exh. 13, in which it was stated that the appellant was depositing rent regularly in Misc. Application No. 39/72 in the Court of Ist Civil Judge, Karachi for the reason that the previous landlord had refused to accept the rent for the reason that he wanted to create a ground for default. It was also stated in the above reply that the appellant was ready and willing to pay the rent to the respondent after satisfying himself about the bona fide ownership of the shop in his occupation. The respondent did not send any reply to the above letter of the appellant's advocate but addressed another notice dated 17-7-1973 purporting to be notice under a section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, Exh.

14. In the above notice it was stated that the respondent was not interested in giving the premises on rent to any party. This notice was also repli=d to by the appellant through his Advocate's letter dated 30-7-1973. Though the above letter has been referred to in the deposition of the D. W. 1 but it has not been exhibited by Mr. Gharib Nawaz, Advocate for the respondent, after obtaining instructions from his client has denied the receipt of the above letter.

5. The statements of the appellant's son that his father was depositing rent regularly in the aforesaid Misc. Application No. 39/72 was not challenged by the respondent in the cross-examination. In order to satisfy myself as to whether in fact the appellant was depositing rent in the aforesaid Misc. Application I had called upon the learned counsel for the appellant to produce the original receipts which he has done and a copy of the statement thereof was given to the learned counsel for the respondent, However, I have not taken the above receipts on record, as it will tantamount to accepting additional evidence without providing an opportunity to the respondent. In my opinion even the aforesaid receipts are ignored, there are still more than one reason to hold that the appellant had not committed default. It may be observed that the aforesaid statement of the appellant's son was not challenged and, therefore, it is to be inferred that in fact the appellant was depositing rent regularly in the aforesaid Misc. Application. The question which requires consideration is as to whether the above deposit of rent by the appellant absolved him from his obligation to tender rent to the respondent. It is an admitted position that after the receipt of the admitted notice dated 30-3-1973 Exh. 7 the appellant through his Advocate letter dated 10-4-1973 Exh. 8 informed the respondent that he was ready and willing to pay the rent to the respondent after satisfying himself about the bona fide of the transaction of purchase. It is also an admitted position that after the receipt of the above reply the respondent neither sent a copy of the sale-deed nor made an offer to show the sale-deed to the learned counsel for the appellant or to the appellant.

6. It was urged by Mr. Gharib Nawaz, learned counsel for the respondent that it was not open to the appellant to call upon the respondent to satisfy him about his title and in this regard he had referred to the case of Sheikh Fazaluddin Qureshi v. Muhammad Hussain Zubeiri (P I. D 1977 Kar. 418) wherein a learned Single Judge of this Court was pleaded to observe that the tenant could not defer the payment on the ground that he was to satisfy himself about the title of the landlord. The above ruling is distinguishable from the instant case inasmuch as that in the aforesaid case along with the notice an attested copy of the P. T. O. issued in favour of the landlord, was forwarded to the tenant, and, therefore, the tenant had no justification to have further satisfaction about the title of the landlord. It may be observed that the respondent through his second notice dated 17-7-1973 Exh. 14 made it clear that he was not interested in letting out the premises to any one but he wanted to have the vacant possession of the premises in dispute and, therefore, it is clear that the respondent was more interested in getting the vacant possession, than in the recovery of rent,

7. It was also urged by the learned counsel for the respondent that deposit of rent by the appellant in Misc. Application No. 39/72 cannot be said to be a tender of rent to the respondent. In support of the above Contention the learned counsel has referred to the case of Rehmat Ali v. Khadeja Hukeem (P L D 1967 Lah. 29), in which after the transfer of the property by the Settlement Department, the tenant continued to deposit rent with the department concerned and it was held that the above deposit made by the tenant was not justified as he was supposed to pay rent to the transferee of the property. The facts of the above case are also distinguishable from the ' present case inasmuch as it was asserted by the present appellant in his first reply dated 10-4-1973 (Exh. 8) to the respondent's notice dated 30-3-1973 Exh. 7 and as well as in his written statement to the ejectment application that the previous landlord had refused to accept rent and wanted to create a default, and, therefore, the appellant started depositing rent after obtaining an order from the Rent Controller in the aforesaid Misc. Application. In this view of the matter it cannot be urged that the appellant had no justification to deposit rent. In the above reply dated 10-4-1973 Exh. 13 the appellant showed his willingness and readiness to tender the rent to the respondent provided he be satisfied about his title.

8. It was contended by the learned counsel for the respondent that a notice by the purchaser under section 13-A of the Ordinance was itself (2) sufficient and there was no obligation on the part of the respondent to satisfy the appellant about his title. In my view the above contention has no force as a tenant after the receipt of a notice under section 13-A of the W. P. R. R. Ordinance is entitled to call upon the purchaser to satisfy him that in fact he had purchased the tenement in possession of the tenant. This can be done by more than one way, namely, the purchaser may forward a letter of the previous landlord addressed to the tenant requesting him to attorn the purchaser as his new landlord or the purchaser may forward an attested copy of the sale-deed to the tenant or the purchaser may offer the tenant to inspect the sale-deed at his place. If the contention of the learned counsel for the respondent that a tenant has no right to call upon his new landlord to satisfy him about the bona fide of the purchase is to be accepted. It may lead to absurdity inasmuch as even an imposter may serve a notice under section 13-A of the Ordinance on the tenant calling upon him to pay rent, who according to the learned counsel for the respondent will hove no option but to pay rent without enquiring into the bona fide of the demand. This cannot be the intention of the Legislature.

9. Mr. Gharib Nawaz, learned counsel for the respondent has relied upon the case of Muhammad Anwar v. Hosne Ara Begum and others (P L D 1963 Dacca 714), relevant portion at p. 589 in which it was held that the tender of rent to the previous landlord is not a good tender to the new landlord. The facts of the above case are distinguishable for the aforesaid reasons, namely, that the respondent neither forwarded the previous landlord's letter requesting the tenant to attorn new landlord nor the copy of the sale-deed to the appellant nor had offered the inspection of the sale-deed to him and, therefore, till the time it was established that in fact, the respondent No. 1 had purchased the shop the appellant was justified in not tendering the rent to him and continuing to deposit rent in the aforesaid Miscellane-1 ours Application No. 39/72. In view of the above discussion I am of the view that the learned Rent Controller was justified in refusing the prayer of ejectment on the ground of default as there was no default within the meaning of section 13 of the Ordinance.

10. Reverting to the respondent's cross objections to the appeal, it may be observed that the two courts below have come to the conclusion that the respondent failed to establish his bona fide personal requirement. Mr. Gharib Nawaz, learned counsel for the respondent has contended that the above conclusion has been arrived at by the two courts below contrary to the evidence on the record inasmuch as it was an admitted position that the respondent did not have any other shop in his possession and his statement that he wanted to start some business could not be disbelieved If may be pertinent to mention that it is an admitted position that the respondent is an employee of Karachi Gas Company. The learned two Courts below could come to the conclusion that the respondent being an employee did ,not need the shop for his personal requirement. In any case it is a question of fact that the two Courts below have given concurrent finding which cannot be interfered with in the second appeal. 1, therefore, do not find and merit in the gross-objections. In view of the above discussion the appeal is allowed and the cross objections are dismissed, but there will be no order as to costs. S. Q. Appeal allowed.