P L D 1977 Lahore 210 (PLP)

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- ‑‑ Ss. 13 & 13‑A‑"Landlord" and "tenant", relationship of‑Eject ment for default in payment of rent‑Section 13‑A visualises a rebuttable presumption‑Tenant acknowledging heir of landlord to be his landlord by paying him rent‑Such tenant cannot turn back and rely upon S. 13‑A in case of his deliberate defaults in payment of rent‑Principle of estoppel, held, will apply against such tenant Evidence Act (I of 1872), Ss. 115 & 116.‑[Estoppel]. Malik Abdul Aziz for Appellant. It is admitted that the relationship of landlord and tenant originally existed between the appellant and Chanan Din father of the respondent. Chanan Din died in October, 1974. Thereafter, according to A. W. 1/1, a copy of a plaint filed by the appellant in the civil Court in a suit for perma nent injunction, he paid the monthly rent for October, November and Dece mber, 1974 to the respondent. The suit was filed on account of an alleged demand to enhance the rent to a sum of Rs. 50 from the already settled rent of Rs.

10. It was prayed that a decree for perpetual injunction may be passed against the defendant in that suit t. e. the present respondent restraining him from enhancing the rent from Rs. 10 to Rs. 50 and also dispossessing him from the property in dispute otherwise than in due course of law. On account of the default committed by the appellant an application for his ejectment was filed by the respondent which was allowed by the learned Rent Controller on the 22nd of May, 1976 and this order was upheld by the learned Additional District Judge, Lahore in appeal vide order dated 31st of July, 1976.

2. The appellant had taken two points before the Rent Controller, He denied the relationship of landlord and tenant and also urged that there was no default since a notice under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance, 1959 was not served upon him. The learned Rent Controller found the issue about the relation ship of landlord and tenant against the appellant. It was also found that no notice under section 13‑A was necessary in the circumstances of the case. The learned Additional District Judge maintained this order. In regard to the notice under section 13‑A he held that in view of the civil suit filed by the appellant no notice under that section was required.

3. The learned counsel did not challenge the finding on the first issue but confined his case to the effect of section 13‑A. In this connection he referred to the case of Sabu Mal v. Kika Ram alias Heman Das 1973 S C M R 185 and to an unreported case in S. A. O. No. 125 of 1976, decided on the 25th of June, 1976. He also relied upon the analogy of Even's case in which it was held that non‑service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was fatal to an applica tion for ejectment and even if it is held that the person in possession of the premises had acknowledged at some stage the transferee of the property as his landlord and had paid rent to him, that would be of no avail since such tenant cannot contract out of the statutory guarantee given by section 30 of the Ordinance. P L D 1964 S C 536

4. The authority of the Supreme Court in Sabu Mal's case is clearly dis tinguishable. In that case there was no acknowledgement of the relationship of landlord and tenant between the parties. Similarly the analogy of section 301 is not applicable to a case under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance. The principle of section 13‑A is only this that normally a person should be presumed to know the landlord who has initia ted him in the property. If, however, there is a transfer or the property goes by inheritance to another person after the death of the landlord. he should be presumed not to know about such devolution or transfer unless he is served with a notice under section 13‑A and if such a person does not pay the rent to the transferee landlord or to the heir of the deceased, he cannot be said to be in default. Section 30, on the other hand, provides that the normal procedure under the West Pakistan Urban Rent Restriction Ordinance or under the Transfer of property Act shall come into force only if a notice in accordance with the provisions of subsection (1) of that section is served upon the person in possession and a default is committed by him in the payment of the rent within 90 days of such service. The analogy of that section cannot, therefore, be applied to a case under sec tion 13‑A.

5. 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 baying 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.

6. If the matter is looked from this point of view, it will be clear that the appellant had become a tenant of the respondent since it was admitted in A. W. 1/1 that Chanan Din had died and after his death the appellant had started paying rent to Aslam Shah respondent. His only grievance was that Aslam Shah had no right to enhance the rent from a sum of Rs. 10 to Rs.

50. The word "tenant" has been defined in the Urban Rent Restriction Ordinance as meaning a person by whom or on whose account rent is payable for a building. The word "landlord" is defined as a person for the time being entitled to receive rent. Once there is an acknowledgement 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 the rent. If the contrary is held to be true that would result in an anomalous situation. That will be giving more protection to the tenant than was, in fact, envisaged by the Legislature. The unreported case relied upon is no doubt of this category but the points that I have taken into consideration, have not been taken into consideration in that case. In these circumstances I am in agreement with the learned Additional District Judge that the question of notice under section 13‑A did not arise. In fact by his own conduct the appellant has caused the respondent to believe that he acknowledged him as his landlord notwithstanding the non‑service of a notice under section 13‑A and it is no longer necessary to serve any notice upon the appellant. The principle of estoppel will thus apply against the appellant. If he had not paid any rent to Aslam Shah, I have no doubt that he would have served a notice under section 13‑A upon the appellant. But the appellant himself brought about a situation by paying the rent to him so that he might consider it unnecessary or futile to serve the notice upon the appellant. In this view of the matter I find no merit in this appeal which is dismissed in limine. S. Q. Appeal dismissed in limine.