1979 PLP 42 (CLC)

"That the tenant shall not be deemed to have been defaulted in the payment of rent if the rent due is not paid within 30 days from the date when the intimation of transfer is given by the new landlord to the tenant." This intimation, it may be noticed, has to be given in a particular manner, namely, in writing by registered post.

5. Mr. Mohammad Abdul Aziz the learned counsel for the appel lant invited my attention to a decision reported in Nazir Hussain v. Aslam Shah (P L D 1977 Lah. 210) in which the learned Judge, for whose ability I have great respect, has taken the view that if the tenant pays rent to the transferee landlord a fresh tenancy will be deemed to have been created in favour of the person who has received the property by devolution or transfer. The learned Judge observed :- "As stated above, section 13-A only visualises a presumption which cannot be said to be conclusive in any respect. At the most it is a rebuttable presumption. If in a given case the tenant is proved to know about the death, acknowledges the heir or the transferee as the landlord and starts paying rent to him, a fresh tenancy will be deemed to have been created in favour of the person who has received the property by devolution or transfer." The learned Judge also referred to the definition of tenant as may a person whom or whose account rent is payable and landlord as a person for the time being entitled to receive rent, in the Rent Ordinance and went on to conclude that :- "Once there is an 'acknowledgment of the appellant being a tenant under Aslam Shah by paying rent to him, he cannot turn back and rely upon section 13-A in case of deliberate defaults made by him in the payment of rent. If the contrary is held to be true that would result to an anomalous situation. That will be giving more protection to the tenant than was, in fact. envisaged by the Legis lature." The learned Judge found no parallel between section 30 of the Dis placed Persons (Compensation & Rehabilitation) Act, 1958 and sec tion 13-A of the Rent Ordinance, and, therefore, did not deem it neces sary to examine the reasoning of the Supreme Court in Evan's case (PLD1964SC536). With respect to the learned Judge I find parallel in the said two sections for both provide for a notice to be served in a particular manner and give protection, to persons in possession of evacuee property and a tenant under Rent Law, respectively.

6. As I read section 13-A of the Rent Ordinance it provides for two things. Firstly, a notice in. writing by registered post to the tenant by the new landlord intimating the change of ownership which has been held to embrace all changes whatsoever in the title of the property in posses sion of the tenant. Secondly, a protection to the tenant that in absence of such notice the tenant shall not be deemed to have defaulted in the payment of rent for the purpose of clause (2) of subsection (2) of sec tion

13. In Evan's case the Supreme Court held that the prescribed manner in which notice under section 30 of Act XXVIII of 1958 was to be given. viz. by registered post (acknowledgment due) cannot be ignored. It was observed that :- "It is difficult to accept upon the wording o this section that such a notice could even be implied notice or information received aliunde 'In the face of the language of the proviso which requires that the notice should be served `by registered post (acknowledgment due)', such an interpretation is not possible. To hold that, notwithstanding such clear not unambiguous words, even implied notice would be sufficient to render the words `by registered post (acknowledgment due)' in the proviso redundant, which cannot be done. Every word in a statute has to be given a meaning and the only meaning that these words are capable of bearing is that express notice in writing must be given in the manner prescribed." The other question before the Supreme Court as to whether an account of an evacuee house could contract or opt not of the protection given to him by said section 30 was answered in the negative in these words :- "We are inclined, therefore, to take the view that reading the provisions of the Act as a whole section 30 was not intended to protect private rights, for mere allottees did not by the allotment alone acquire any right in the property but were designed as a matter of public policy to give general protection to such occupants not only as to irremoveability for a reasonable period but also as to occupation upon payment of a reasonable rent. Apart from this the rule generally adopted in construing such legisla tion giving general protection pro bono publico is to prefer the' construction which will add force to the protection and suppress subtle inventions and evasions. Thus the view which has prevailed in England in construing Rent Acts which created similar statutory tenancies and contained similar protective provision is that : "Notwithstanding the absence of any express statutory provision, it is impossible to contract out of the Acts, whether by a provision in a lease or tenancy agreement or otherwise nor c in the doctrine of estoppel exclude the Acts. An agreement by a tenant to pay more than the rent permitted by the Acts, or obliging him (even indirectly) to give up possession where the .Acts do not require him to do so is void so far as it conflicts with the Acts and will not be specifically enforced at the suit of the landlord" ( vide Megarry's Rent Acts, 9th Edn., p. 14). Although such provisions cannot be construed to prevent a tenant from giving up possession of the premises in his occupation of his own wish and accord yet this does not mean that an agreement to do so can be lawfully enforced by the landlord. Similarly even though there may be nothing in the Act to prevent a tenant from voluntarily paying more than the rent chargeable under the Act, this would not entitle the landlord to enforce an agreement to pay at an enhanced rate, for, that would be in direct conflict with the provision in the, statute which gives a tenant a right to retain possession of the premises upon the same rent at which he held the premises immediately before its transfer. The view, therefore, that because there is nothing in the Act, which expressly prohibits the landlord or transferee of the premises from charging rent at a higher rate or that because the Act does not say that it shall not be lawful for the landlord to accept a higher rent the landlord is not necessarily debarred from doing so cannot be upheld. The provision in the section that it shall be lawful for the transferee to charge rent on the basis of the last assessment by necessary implication makes it unlawful for him to charge rent at a different rate upon the well. known principle of expressu4n facit cessare tacitum. If a doing of a particular thing is made lawful the doing of something which is in conflict with that will be unlawful. We are of the view therefore, that a person protected by section 30 of the Act of 1958 could not lawfully contract out of that protection, for, such a contract would be void being against public policy."

7. Incidentally in the present case we are concerned with the protec tion given to a tenant by a Rent Act and the aforesaid observations will therefore have full application. I am further inclined to think that the language employed in section 13-A makes a notice imperative for a tenant "shall not be deemed to have defaulted in payment of rent", if the prescribed notice in writing under registered post is not given to him. In other words, there is no room for an agreement outside the statute between the transferee-landlord and the tenant, which may oblige the tenant to pay rent for the law says that the tenant shall not be deemed to be in default in the absence of a registered post notice under section 13-A. The service of notice under this section is, therefore, not merely a formality for acquainting the tenant of the transfer of the premises not merely in the nature of a notice of allotment.

8. Finally, I may with advantage also refer to the following observa tion of the Supreme Court in the case of Sabu Mal v. Kaka Ram alias Heman Das (1973 S C M R 185), which supports the view that notice under section 13-A, when eviction is sought on the ground of non-payment of rent, is necessary :- "The language employed in section 13-A of the Ordinance makes it abundantly clear, as observed by the High Court, that it only deals with one situation, namely, the question of default in the payment of rent. ' If the prescribed notice is not given by the transferee landlord than the tenant shall not be deemed to have defaulted in the payment of rent for the purpose of clause (1) of subsection (2) of section 13 of the Ordinance, and such default would arise only if the rent is not paid within 30 days from the date of notice. In our view, the High Court was right in observing that an ejectment application placed on grounds other than that of default in the payment of rent, is not at all affected by the provisions of section 13-A."

9. The result, therefore, is that there is no merit in these appeals and they are dismissed. In the circumstances of the case there will be no order as to costs. Appeals dismissed.