1990CLC 1311 (PLP)

Rent Appeal is directed against the order dated 30‑7‑1983 passed by the IVth Senior Civil Judge Rent Controller, Karachi whereby he allowed the eviction application filed by the respondent and directed the allowed the evict' over the vacant possession of the premises m dispute to the appellant to hand respondent within two months from the date of the order. The facts leading to the filing of the above appeal are that Mst. Iffat was the owner of a double‑storeyed Bungalow No. B‑8, Raja Mahmoodabad Road (Survey Sheet No. 322 J.M.) Karachi and the appellant is a tenant in respect of the portion of first floor of the said bungalow on a monthly rent of Rs.60. The respondent and her sister Mrs. Siddiqa Pooya purchased the above‑said bungalow from Mst. Iffat through a registered sale‑deed dated 16‑9‑1974. The mutation in favour of the respondent and her sister‑in‑law Mrs. Siddiqa Pooya was effected in the property register maintained by the Chief Survey Officer on or about 18‑5 1978. It was the case of the respondent that the respondent sent a notice dated 5‑4‑1979 under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as to repealed Ordinance), intimating to the appellant the change of ownership of the premises in dispute in favour of the respondent and her sister‑in‑law Mrs. Siddiqa Pooya. The said notice was despatched on 5‑4‑1979 and as per endorsement of the postal acknowledgement, the said notice was received by one Kamal. The respondent filed eviction application bearing Rent Case No. 2898/79 against the appellant on the ground of default in payment of rent for the period commencing from 1‑3‑1978 to 30‑4 1979. The appellant resisted the eviction application. On the basis of the pleadings of the parties the learned Controller framed the following issues:‑ (1) Whether the application as filed is maintainable? (2) Whether the applicant served any notice upon the opponent under section 13‑A of the Ordinance regarding the change of ownership? (3) Whether the opponent, even otherwise had any knowledge regarding the change of ownership? The respondent fled affidavit‑in‑evidence of her rent collector Ibrahim Ali in support of the eviction application. The appellant filed her own affidavit‑in evidence in rebuttal. They were cross‑examined by the learned counsel for the respective parties. The learned Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No‑1 in the affirmative, issue No.2 against the appellant and issue No.3 in the affirmative and allowed the eviction application on the ground of default vide his order dated 30‑7‑1983. The appellant abovenamed being aggrieved by the order dated 30‑7‑1983 of the IVth Senior Civil Judge/Rent Controller, Karachi has preferred this First Rent Appeal on the grounds mentioned in the memo of the appeal. Is support of the above appeal Mr. S. Sami Ahmed the learned counsel for the appellant has raised the following contentions:‑‑ (1) The eviction application was incompetent for want of the repealed Ordinance notice under section 13‑A, was not served upon the appellant. (2) No knowledge of change of ownership. (3) No default committed as their was no practice to collect arrears. On the other hand Mr. Munawar Abbas, the learned counsel for the respondent has submitted that the appellant has the knowledge and she has been paying rent to the rent collector of the respondent. Notice under section 13‑A was not necessary. Periodical payment was not established by the appellant and the findings of the Rent Controller are in accord with the evidence on record. It is advantageous to reproduce the provision of section 13‑A of the repealed Ordinance which read as under:‑ "13‑A. Tenant to be informed in case of transfer of ownership. Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of subsection (2) of section 13, if the rent is due within thirty days from the date when the intimation should in the normal course have reached him." From the plain reading of section 13‑A of the Ordinance, it is clear that in the absence of notice, the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of subsection (2) of section 13 of the repealed Ordinance. Section 2(c) of the repealed Ordinance defined the word `landlord'. The word `landlord' means any person for the time being entitled to receive rent of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land` in the manner hereinafter authorised and every person from time to time deriving the title under a landlord. The contention of appellant is that the provisions of section 13‑A are mandatory and since notice under section 13‑A was not served upon the appellant, she would not be deemed to have defaulted in the payment of rent and was, therefore, not liable for eviction on the ground of default. They non‑payment of rent was duly explained that since the tenancy is as old as of about 30 years so there was firm confidence between the parties, and the rent collector used to collecter rent in lump sum at his pleasure. There is no dispute that Ibrahim Ali used to collect rent. The plain reading of section 13‑A of the repealed Ordinance would make it clear that the tenant should not be deemed to have defaulted in the payment of rent if the rent due is paid within thirty days from the date when the intimation of transfer is given by the new landlord/landlady to the tenant. This intimation, it may be noticed, has to be given in a particular manner mainly in writing by registered post. It is true that a tenant is entitled to the protection of the repealed Ordinance only as long as she is ready and willing to pay the rent. However, when there is a transfer of ownership of a property in the possession of a tenant, a g tenant may find it difficult to ascertain as to whom he/she is to attorn, and as the consequences of failure to pay rent are very drastic, the legislature in its wisdom has imposed this obligation of notice under section 13‑A. The object underlying this beneficial provision is clearly to enable the tenant to know whom she/he to attorn and the section being a remedial provision should be construed liberally. Accordingly I am of the view that the landlord/landlady has to serve the tenant with the notice as provided by section 13‑A of the repealed Ordinance or section 18 of the Sindh Rented Premises Ordinance, 1979. Having given my anxious consideration to the first submission, I hold that the learned Controller has rightly found that the notice dated 5‑4‑1979 under section 13‑A of the repealed Ordinance‑ had not been served in accordance with law upon the appellant. The respondent did not aver in her eviction application that she served the notice under section 13‑A of the repealed Ordinance and even the copy of notice was not annexed to the eviction application. The respondent filed application under Order XII, Rule 8 read with section 20(1)(b) of the Ordinance on 5‑8‑1982 which was subsequently not pressed. This application was dismissed by order dated 22‑9‑1982. The respondent also filed application under section 21(3) of the Ordinance on 29‑11‑1983, in this Court which was also not pressed by the learned counsel for the respondent. It was not pleaded by the respondent that notice under section 13‑A was served upon the appellant nor was there any evidence to show that notice was served upon the appellant. In these circumstances it seems that the Controller has rightly held that no notice under section 13‑A was served upon the appellant. The Controller came to the conclusion that the appellant had the knowledge of change in ownership. In my view the conclusion of the Controller could not be regarded as binding upon me, for he raised the inference of knowledge from facts which were never pleaded and proved. The finding of the Controller travelled beyond the pleadings of the respondent. Assuming in this case a plea of knowledge was attempted to be raised in the eviction application. The only fact from which the Controller assumed knowledge is that the appellant stated in her affidavit‑in‑evidence that Mr. Murtaza Pooya introduced rent collector Ibrahim Ali to the appellant and told her to pay rent to him. It is an admitted position that the rent collector was the employee of Mr. Murtaza Pooya, viewed in the light of the circumstances will not justify an inference that the appellant had the requisite knowledge about the change of ownership. It is also an admitted position that Ibrahim Ali was collecting rent from all the tenants including the appellant on behalf of Mrs. Iffat. It is also an admitted position that the rent collector was collecting rent from the appellant much prior to the purchase of the property by the respondent and her sister‑in‑law. The rent collector did not state in his affidavit‑in‑evidence that he personally informed the appellant about the purchase of the property by the respondent and her sister‑in‑law. It was not the case of the respondent that Mr. Murtaza Pooya informed her that his wife and his sister purchased the property from Mrs. Iffat. The primary issue on which the respondent sought eviction of the appellant was default in payment of rent. I should have expected the respondent to produce the notice or to produce positive evidence that the respondent had the knowledge about change of ownership and lead evidence in support of her plea. The manner in which the case on behalf of the respondent was conducted reflects little credit upon those in change of the case. Perusal of the record and the evidence adduced does not show that the appellant had the requisite knowledge about the change of ownership. A tenant in possession of a rented building cannot be evicted otherwise than in accordance with the provisions of the repealed Ordinance. A landlady who seeks to evict her tenant on the ground of default has to apply to the Controller. Order of eviction against tenant can only be passed if it is proved that the tenant has neither paid or tendered rent due from him in respect of the building within the stipulated period as envisaged by section 13(2)(i) of the p repealed Ordinance. The default must exist before the presentation of the eviction application. If, eviction application is itself treated as a notice under section 13‑A, the beneficial purpose behind the provision will evaporate. There is no creditable evidence available to show that the appellant had knowledge of the change of ownership. In this view of the matter it cannot be said that she committed default in payment of rent. In view of the matter it is not necessary to deal with other contentions of the learned counsel. The appeal, is, therefore, allowed and the impugned order dated 30‑7‑1983 is set aside and the eviction application filed by the respondent stands dismissed. There will be not order as to costs. AA./M‑1082/K Appeal allowed.