1990 PLP 1708 (CLC)

Appellants who are children of Dildar have assailed dismissal of Rent Case No.478 of 1972 ordered on 26‑7‑1986 by Vth Senior Civil Judge and Rent Controller, Karachi South.

2. Rent Case No. 478 of 1972 was filed on 7‑3‑1972 by S.M. Ashar, S.M. Asghar and Mst. Noorun Nissah (hereafter to be mentioned as previous owners) against the respondents in respect of the shop in litigation bearing No.G‑7 in Shamsi Building situated on Plot No.SB 1/1, 2, 3, Saddar Karachi, where a Post Office is functioning. It was alleged in the Rent Case that the respondents were habitual and persistent defaulters in payment of rent as they had not paid rent for the shop in litigation for November 1971, December 1971 and January 1972, despite reminders. It was next alleged that the respondents had damaged the demised shop and had reduced its utility and usefulness.

3. The rent case was resisted by the respondents who in their written statement filed on 4‑11‑1972 claimed being bona fide tenants of the demised shop since 1940. They claimed to have paid rent for the disputed shop firstly to the Custodian and Rehabilitation Department (at rate of Rs.39.25 p.m.) and then to the previous owners who purchased the entire property including the disputed shop in auction from Settlement Department (at the rate of Rs.200 p.m.). Respondents claimed being very particular in paying the rent and denied being defaulters in payment of rent for November, 1971 to January, 1972. Respondents added that they were directed under a notice dated 1‑9‑1969 received from an advocate for the previous owners not to pay rent for the previous owners to any body except their Munshi Arfan. That each month Arfan was collecting rent for the previous owners at the disputed shop where Post Office of the respondents is functioning. It was added that for payment of monthly rent each month, the acquittance roll was to be prepared. It was alleged that Arfan failed to collect rent for November, 1971, December 1971 and January 1972, because the appellants were trying to avoid receiving rent to oust the respondents' Post Office from the shop in litigation. Respondents informed the Deputy Controller of Post Offices of the position. Rent for the said months was returned to the General Post Office Karachi. An attempt was made to send the rent for said months to the previous owners through a money order dated 26‑9‑1972 which was refused.

4. The rent case was dismissed in default on 27‑9‑1977 due to non appearance of the previous owners as well as their advocate. It was restored on the same date on an application moved by Mr.S. Karmally, Advocate for the previous owners.

5. On 18‑5‑1978 present appellants (Mohammad Nawaz and others) moved an application under Order 1 Rule 10 of C.P.C. to the effect that they had purchased the property including the disputed shop from the previous owners on 29‑9‑1976 and as such they be substituted for the previous owners as applicants in the rent case. Said application was opposed by the respondents but it was accepted under an order dated 12‑3‑1979.

6. In their amended rent application, the appellants stated that they had stepped into the shoes of the previous owners, due to purchase of the property in litigation, and that the respondents were their tenants in said property with rate of rent being Rs.200 p.m. Appellants prayed for eviction of the respondents from the property in litigation on the same grounds taken by the previous owners viz. default in payment of rent for November 1971, December 1971 and January 1972 and causing of damage to the demised property.

7. In their amended written statement the respondents denied being tenants of the appellants whose title to the demised property was challenged. Maintainability of the rent application was challenged and want of notice under section 13‑A of the W.P. Urban Rent Restriction Ordinance was pleaded. It was added that the ejectment application having been dismissed on 27‑9‑1977 could not be restored on the application of the previous owners who had ceased to be owners of the demised premises on 29‑9‑1976. The application moved under 0.1, Rule 10, C.P.C. was challenged to be incompetent as Nawab had no authority to move it for others. On merits the respondents reiterated that they were not defaulters in payment of rent for the disputed period. Respondents repeated the facts as given in their previous written statement.

8. After recording evidence of the parties, learned trial Court under a judgment dated 23‑5‑1981 accepted the rent application and directed eviction of the respondents from the demised premises within two months. Said judgment was set aside on 28‑1‑1985 in F.R.A. No. 383 of 1981 by a learned Judge of this Court who remanded the matter back to the Rent Controller for holding further enquiry on the issue of default and for giving afresh decision on the basis of the evidence which was permitted to be led.

9. After remand the trial Court gave opportunity to the parties to lead further evidence. Under the impugned order dated 26‑7‑1986 learned Rent Controller dismissed the rent application after holding that the application for ejectment was not maintainable because the alleged default was committed for the period when the appellants were not owners of the premises in litigation.

10. Mr. Salim Karmally, learned Counsel for the appellants argued that the appellants having purchased the disputed property during pendency of the rent application, had come in the foot‑steps of the previous owners who were landlords of the respondents and consequently the appellants had become landlords of the respondents. It was further argued that the default in payment of rent for the months of November 1971, December 1971 and January 1972, committed by the respondents during the days of the previous owners, would not be erased due to change of ownership and that the appellants would be entitled to seek order of eviction against the respondents on the basis of the default committed during the days of the previous owners. Learned Counsel for the appellants referred to the correspondence which went on between the respondents and the previous owners. He also referred to the evidence adduced by the previous owners which according to him was sufficient to prove the ground of default. It was further argued that the respondents had been giving threats to the previous owners instead of paying them rent. It was added that the acquittance rolls relied upon by the respondents to prove that they were not defaulters, were for internal arrangement only and the same could not be used to prove payment of rent. Learned Counsel for the appellants did not argue much on the point of alleged damage to the demised premises. .

11. Mr. Muhammad Ismail Memon, learned Counsel for the respondents argued that the appellants did not serve the respondents with a notice under section 13‑A of the old Rent Ordinance or under section 18 of the new Rent Ordinance, after purchase of the property and hence they were not entitled to seek eviction of the respondents on the ground of alleged default. It was further argued that the rent application was dismissed on 27‑9‑1977 and its restoration on the application of Mr. Salim Karmally, Advocate for Dildar was illegal. Learned Counsel referred to the judgment delivered by a learned Single Judge of this Court in F.R.A. No.383/81 and raised the same points which were raised in the said appeal. It was further argued that the appellants cannot claim right to collect rent for the period before 29‑9‑1976.

12. First point needing consideration is, whether the default was committed in payment of rent for the period in question. On this point S.M. Ashar was examined on commission while affidavit of S.M. Hyder was filed. S.M. Ashar was one of the previous owners of the dcmised property. He deposed that the respondents did not pay the rent regularly and that they were in arrears of rent for the months of November, 1971, December 1971 and January 1972. That the notices and letters were sent to the respondents but they did not pay the rent. In his cross‑examination S.M. Ashar admitted that he was unable to say regarding irregularity in payment of rent and that he was unable to point out even one instance of such irregularity. S.M. Ashar admitted that rent on his behalf and on behalf of the co‑sharers was being collected by Munshi Arfan. He admitted that first notice to the respondents was sent in January, 1972 but did not know if in such notice it was mentioned that rent was refused to Arfan. S.M. Ashar admitted that he had withdrawn the amount of rent deposited in Court by the respondents. S.M. Hyder in his affidavit claimed being attorney of the present appellants. The sum and substance of his evidence was that the appellants had purchased the disputed property although there was litigation between the appellants and the previous owners but such suit was compromised. He also stated that the outgoing owners had assigned their respective rights, to Dildar who was father of the appellants, under a deed of assignment dated 31‑12‑1973. That under the deed Dildar was empowered to recover the past arrears of rent from the respondents M. Hyder has not given the evidence on the point of default. For proving default the previous owners or the appellants should have examined Arfan who was assigned the job to collect the rent. Non‑examination of Arfan has given fatal blow to case of the appellants. Moreover, it was not enough for the previous owners to prove non‑payment of rent for the disputed period. They had to establish on record that there was wilful default in payment of rent. The wilful default has not at all been proved because there is nothing on record to show if the intention of the respondents was not to pay the rent for the disputed period. On the contrary, case of the respondents was that the rent was not collected for the disputed period by Arfan who was authorised by the previdus owners to collect the rent. Mirza Mohammad Athar witness for the respondents was Inspector Post Office Cantt. Sub‑Division, Karachi. His two affidavits dated 6‑4‑1980 and 31‑8‑1985 were filed in the case by the respondents in their evidence. In the affidavit dated 31‑8‑1985 Muhammad Athar explained that the only mode of payment of rent of the demised premises mutually agreed and practised by the respondents and the previous owners was, that Acquittance Roll, in respect of all payments payable by Sub‑Post Office, Empress Market Branch, Karachi including the monthly rent, was to be prepared in office of the Postmaster General, Karachi and then such Roll was to be sent on the Empress Market Branch Post Office one day earlier than start of next month, for payment of dues on 1st of month. That after payment of rent the Acquittance Roll was to be returned with the rent receipt to the Head Office for record. Muhammad Athar produced copies Ex.0/1 to Ex.0/18 of the Acquittance Roll for January, 1971 to May, 1972 with his affidavit dated 31‑8‑1985. He produced attested copies of the Acquittance Roll for June, 1971 to May, 1972 with his affidavit dated 6‑4 1980. Acquittance Rolls for October/November 1971, for November/December 1971 and for December/January, 1972 show that rent was drawn for said months at the rate of Rs.200 p.m. 1n his affidavit dated 6‑4‑1980 Mohammad Athar stated that under the notice dated 1‑9‑1969 the respondents were restrained by the previous owners from making payment of rent to any body other than Munshi Arfan. It was added that Munshi Arfan did not turn up to collect the rent for the disputed months and such information was given to the Deputy Controller Post Offices, Karachi. There is copy Ex.0/21 of a letter dated 9‑2‑1972 from the Deputy Controller of Post Offices West Division Karachi to S. M. Ashar requesting him to collect the rent from Karachi GPO as the same was not collected from Empress Market Post Office. There is copy of a money order showing that Rs.2,000 were remitted to S.M. Ashar but he refused to receive it when the same was offered to him on 27‑9‑1970. Mohammad Athar was subjected to a lengthy cross‑examination. In his cross‑examination Muhammad Athar stated that the rent collector of the previous owners did not come to collect the rent for November, 1971, December 1971 and January 1972, and hence there were no rent receipts for said months and as such rent for said months was returned to the Head Officer. Mohammad Athar admitted that when the rent collector did not come to collect the rent for the disputed period, the rent was not sent through money order to the previous owners. That the rent was sent by money order only after filing of the rent case. It was not suggested to Mohammad Athar in cross if Arfan had refused rent for the disputed period. I, therefore, hold that the ground of default in payment of rent was not proved.

13. It is an admitted position that the present appellants after purchase of the demised premises did not send any notice to the respondents intimating to them the fact that the premises in question were purchased by them. On this point learned Counsel for the respondents cited the cases of Subumal v. Kika Ram (1973 S C M R 185) and Mst. Bismillah Begum v. Fazal Mohammad (1987 C L C 1113). In latter case the view taken was that when there was change of ownership of the premises and the tenant was not served with notice under section 18 of the Sind Rented Premises Ordinance then such tenant could not be charged with penal consequences of default in payment of rent. However non service of notice by transferee landlord in terms of section 13‑A of W.P. Urban Rent Restriction Ordinance, has no effect on maintainability of the ejectment application on the grounds other than that of default in payment of rent, as held in the former case. Learned Counsel for the appellants cited the case of Mst. Sardar Begum v. Gul Faraz Khan (P L D 1967 Peshawar 176) where the view taken was that if during pendency of an appeal the landlord sells out suit house to another person, the purchaser deriving title under the previous landlord can seek tenant's ejectment. Reliance was also placed on the case of Aziz Begum v. Faiyaz tenant's (N L R 1980 Civil Lahore 134) where it was held that a person holding property as tenant under previous owner ipso facto becomes tenant of subsequent owner on sale of property. These authorities did not take note of non‑service of notice under section 13‑A of the old Rent Ordinance or under section 18 of the new Rent Ordinance. In the case of Mohammad Amin v. Ghulam Murtaza (P L D 1967 Lahore 1020) cited on behalf of the appellants, the landlord during pendency of his application for eviction of his tenant sold the property by registered sale‑deed to a bank and the tenant objected in the proceedings for ejectment that the landlord had sold the property by a registered sale deed and having thus ceased to be the landlord, the petition for ejectment could not be proceeded with. This plea of the tenant was not accepted and it was held that the landlord was entitled to receive rent on the date that he filed the application for ejectment against the tenant and he continued to be entitled to receive rent in respect of the building from the tenant and therefore continued to be his landlord. In said case there was a stipulation in the conveyance deed that possession of the part of the premises under sale which was on lease with a tenant; would be given to the vendee bank after eviction of the tenant from there. In case of Syed Mohammad Ali and another v. Jameel Ahmed (P L D 1976 Kar. 820) cited by the appellants' counsel, the landlord conveyed the premises by way of sale and it was held that the rights vesting in such landlord can also be conveyed to the transferee. It was also observed that `default' is not personal but it is in respect of the property and when the property is conveyed by way of sale, the rights vesting in the transferor can also be conveyed to the transferee. In the case of Abdul Rauf v. Nawab Ali and others (P L D 1986 Kar. 117) cited by appellants' Counsel, the view taken was that the default committed by a tenant during tenancy of previous landlord, would subsist for benefit of subsequent landlord. The authorities cited on behalf of the appellants show that if previous landlord of certain premises had cause of action against his tenant, the same devolves upon the purchaser of the premises provided such assignment is made in the conveyance deed. In the instant case even the previous landlords had not been able to prove the ground of default and consequently the appellants as vendees of the demised premises cannot have better rights against the respondents, than the rights enjoyed by the previous owners. Moreover in absence of notice under section 13‑A of the old Ordinance, the appellants cannot seek eviction of the tenants on the ground of default in payment of rent.

14. In the case of M/s. A.B. Sons Limited v. Eastern Express Limited 198 M L D 956 cited by appellants' counsel, the view taken was that a procedural omission on part of a landlord through inadvertence would not affect maintainability of the eviction application. In the case of Yousuf Shah v. Haji Ghulam Jan Khan (1975 S C M R 464) cited by appellants' Counsel it was held that mere refusal of landlord to accept rent tendered on an earlier occasion, does not absolve the tenant of his continued liability to tender the same for each successive month. In the case of Girdhari Lal v. Mst. Marzia Bano and another (P L D 1963 Quetta 25) cited by appellants' Counsel, the view taken was that a tenant withholding rent for purpose of deducting cost of repairs was liable to ejectment for non‑payment of rent, if such repairs were without permission of the Controller. These authorities have no application to the instant case. It was not the case of the respondents that they withheld rent, for having spent same amount on repairs of the premises. Lastly appellants' counsel cited the case of Pakistan Art Emporium Shop v. Palace Hotel (1989 C L C 34) where the view taken was that if the landlord refuses to accept the rent, the tenant is required to send the same to him through money order or to deposit such amount in Court. In the instant case the respondents have relied upon notice, under which they were directed not to pay rent to any body other than Munshi Arfan. Hence cited case does not apply.

15. There is no evidence on the point of damage to the shop in litigation where the respondents are running a Post Office. S.M. Ashar in his evidence deposed that the respondents had not cared to maintain the premises. He admitted that he had no personal knowledge of the details of damage. He added that Arfan knew the details of damage. Arfan was, however, not examined as a witness. In his affidavit S.M. Hyder did not state if any damage was caused to the demised shop by the respondents. In this way, no ground has been made out for ordering eviction of the respondents.

16. Consequently, I maintain the impugned order and dismiss this appeal with costs. H.B.T./M‑1139/K Appeal dismissed.