1980 PLP 316 (CLC)

4. Feeling aggrieved by tats order, the appellant preferred an appeal to the learned Additional District Judge, Lahore. The findings on Issues Nos. 1, 2, 3 and 6 only were challenged. The learned Additional District Judge concurred in the findings as arrived at by the Rent Controller and dismissed the appear by his judgment dated 30th June, 1977 allowing two months' time to the appellant to vacate the house. Hence this second appeal.

5. The learned counsel for the appellant contended that the findings of the Courts below on Issue No. 1 are not sustainable. He submitted that Noor Din was the original landlord who died leaving behind two sons, two daughters and a widow ; notice under section 13-A was issued by the respondent alone on 15th September, 1975 and the petition for ejectment had also been instituted by hint aline without even making an averment that the other landlords had authorised him to file the petition. He submitted, that in these circumstances the issue has not been correctly decided by the Court below. Reliance was placed on Faqir Muhammad v. Fazal Din and another (P L D 1967 Lah. 528) to contend that the notice under section 13-A served by the respondent was no notice in the eye of law.

6. The next contention raised was that the notice was admittedly despatched on 15th September, 1975 and the petition for ejectment was instituted on 13th October, 1975 i e. before expiry of the 30 days' period which was required to pass before the appellant could be held a defaul ter. The learned counsel submitted that in this view of the matter the respondent had no cause of action for instituting the petition on the date it was filed.

7. The next objection raised on behalf of the appellant was to the finding on Issue No.

3. Relying on Feroze Din Khan, etc. v. Sh. Muhammad Amin (P L D 1967 Lah. 966) it was contended that the onus of proving this issue bad been wrongly placed on the appellant as it was for the landlord to establish the default.

8. The second limb of attack on the finding on Issue No. 3 was that in the circumstances as brought out from the evidence on record no default had been established. The learned counsel argued that Noor Din had admittedly died on 9th July 1973 and therefore, even according to the ejectment petition the rent had been received by the successor-in- interest of Noor Din unto 31st March, 11375. The default had been alleged from 1st April, 1975 and the notice under section 13-A of the Ordinance was issued on 15th September, 1975. He contended that the rent had in fact been received by respondent regularly upto September, 1975 as asserted by the appellant and the former issued the notice consequent upon a dis pute that had arisen on account of the demand of the appellant-defen dant for repayment of the loan and for making repairs to the house in dispute. He also submitted that in view of the evidence on record the admitted position is that the landlord never issued any receipt for the rent received. The learned counsel further contended that in the context of this position the statement of the appellant especially when she had made an offer that she was prepared to swear on Holy Qur'an that she had paid the total rent, warranted a decision on Issue No. 3 in her favour Reliance was placed on Muhammad Shafi v. Iqbal Ahmad and another (P L D 1965 Lah. 23).

9. On the other hand, the learned counsel for the contesting res pondent submitted that the authority in Khalique Ahmad v. Abdul Ghani and another (P L D 1973 S C 214) is squarely applicable to the facts of the case in hand and conclusively determines the controversy involved as to the locus standi of respondent landlord toy singly file the ejectment petition.

10. As to the filing of the petition before the expiry of 30 days after the receipt of notice, the learned counsel submitted that the petition was neither premature nor without cause of action. He further submitted that default for the period 1st April, 1975 to 31st August, 1975 had in any case occurred and matured before institution of petition for ejectment.

11. As regards the filing on the issue of default committed in the payment of rent, he submitted that the finding being concurrent by both the Courts below cannot be interfered with in a second appeal. He refer red to the evidence of Dervaish Ahmad, R. W. 1 and Arshad Aziz, R. W. 2 whose evidence according, to the learned counsel in no way helped the appellant to establish that the rent was paid.

12. As to the locus standi of the respondent-plaintiff to institute a petition for ejectment against the tenant without impleading the co-landlords as party to tire ejectment petition of obtaining permission in writing from them, it has been rightly pointed out by the learned counsel for respondent that Khalique Ahmad v. Abdul Ghdni and another (P L D 1973 S C 214) lays down the principle firmly. The respondent, therefore, had the locust standi to file the ejectment petition alone.

13. The most important point, however, that requires determination in this case is the effect of institution of the ejectment petition on 13th October, 1935 before the expire of 30 days' period as provided under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959.

14. The purpose of a notice under section 13-A ibid is to give inti mation to the tenant to pay rent to the successors of the landlord and to ensure that the tenant is not held a defaulter unless new landlord notifies his entitlement to receive rent. The section is reproduced hereunder for facility of reference :-- . "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, in heritance or in any other manner, whatsoever, from one person to another, the new owner shill 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 our poses of clause (i) of subsection (2) of section 13 if the rent due is paid within thirty days from the date when the inti mation should in the normal course have reached him."

15. Now a perusal of the second portion of the section clearly shows that it is mandatory in form arid enjoins upon a landlord to serve notice before he can claim rent or benefit of default in the payment of rent. It is also clear from the section that the intention of the legisla ture was to give protection to the tenant as by the deeming clause it has been laid down that the tenant stall not be deemed to have defaulted is payment of rent for the purposes of clause (i) of subsection (2) of sec tion 13 of the Rent Restriction Ordinance if the rent due is paid within thirty days from the date when the intimation Should, in the normal course, have reached him. The `rent due" would therefore necessarily mean due as on the date of issue of the notice. A perusal of the record show that the notice in question Exh. P. 1 which was admittedly dated 15th September, 1975 had been received by the appellant on 23rd Septem ber, 1975 as the acknowledgment receipt filed by respondent himself pertaining thereto shows 23rd September, 1975, as the date of receipt. The period of thirty days if reckoned from 23rd September, 1975 expired on 23rd October, 1975. The admitted position is that the petition for eject ment has been filed on 13th October, 1975 i.e 10 days before the expiry of the period of 30 days allowed to the tenant for making payment of the rent due. Since the tenant has to be deemed as defaulter only if he does not pay the rent within 30 days, therefore as on 13th October, 1975 the respondent landlord had no cause so far as default vas concerned and accordingly the petition was premature and without any, cause of action.

16. Adverting now to the issue of default it is on record as is evi dent from the statement of the appellant that the rent for the months of October and November, 1975 was deposited by her in the Court on 13th October, 1975 and subsequently the rent had been regularly paid by her under orders of the Court. The assertion of the appellant was that she had paid rent upto September, 1975 and that after the receipt of the rent for that month on the demand of the appellant for repayment of the loan allegedly advanced by her to the respondent and of making repairs to the disputed house the respondent served her with the notice in question and created the fake demand of rent w.e.f. 1st April, 1975. The Courts below appear to have ignored this aspect of the evidence absolutely. In the light of the admitted position that the landlord was not issuing receipts for the rent received, it is apparent that there could be no documentary proof for payment of the rent. The under-noted observation of the learned Additional District Judge, Lahore while discussing Issue No. 3 :

"No receipt of the period from 1st April, 1975 to 13th December, 1975 has been. produced by the respondent-appellant, It is, therefore, apparent that no rent was tendered or paid during this period to the landlord." clearly shows that he was influenced in holding the appellant a defaulter mainly on account of non-production of receipts. This finding is on the face of it based on non-reading of the evidence inasmuch as not only the appellant asserted on oath that no receipt was issued by the respondent landlord ever but the respondent-landlord himself also admitted this position as correct.

17. The evidence of R. W. 1 and R. W. 2 was also misread while holding that no rent was paid in their presence. Their production as witnesses was only to prove that no dispute about the demand of rent as alleged by the respondent ever arose and that the rent was always paid without receipts. The only witness produced to prove payment of rent was the appellant herself. Her evidence in this regard has not at all been considered and both the Courts below have, to my mind, erred there. There is no reason to disbelieve her evidence on this point and to give credence to the solitary statement of the respondent that no rent was paid to him pertaining to the alleged period of default, especially when his statement pertaining to damage to the property and subletting had not been believed by both the Courts below. Another significant point that had been ignored from consideration by both the Courts below was the belated service of notice under section 13-A of the Ordinance. The pre decessor-in-interest of the respondent having died in July, 1973 and the notice having been served in September, 1975 does indicate the lack of bona fides of the alleged default especially when it had been admitted by the respondent that rent upto 31st March, 1975 had been paid by the appellant without having been served with any notice. The findings of the Court below on Issue No. 3 in the light of above discussion can cot be sustained as the same patently suffer from misreading and non-reading of the record.

18. There is yet another aspect of the matter and that is regarding non-application of mind by the Courts below to the position whether in the attendant circumstances of the case, the order of ejectment of the appellant would be in the proper and legal exercise of the discretion vested in them. The facts as brought out from the evidence on record do tend to show that there was sufficient material on record in the form of statements of the appellant, the respondent and other witnesses which created a doubt as to the alleged non-payment of rent by the appellant to the respondent. In any case it could not be said in the presence of the evidence on record that the appellant was a wilful defaulter and that default, if any committed, was such as could disentitle her from the exercise of discretion in her favour and entail eviction. It has been held in Muhammad Shafi v. Iqbal 4hmad and another (P L D 1965 Lah. 23) that where the circum stances and evidence are not sufficient for coming to a definite finding about the non-payment of rent and doubt is created in this regard, such a doubt should be resolved in favour of the defendant-tenant. It has been further held therein that mere non-production of receipts was not oaf ground to hold non-payment of rent and for recording finding in favour of the landlord.

19. In this view of the matter, therefore, the case in band did present features which warranted exercise of discretion in favour of the appellant-tenant especially when it had been admitted by the landlord respondent that he never issued receipts for the rent received. This exercise of discretion would also have been in line with the purpose of the enactment. The preamble of the West Pakistan Urban Rent Restriction Ordinance itself is to the effect that the enactment has been brought in order to inter alia restrict the eviction of tenants.

20. As a result of the above discussion I accept this appeal, set aside the order dated 20th April, 1976 of the Rent Controller, Lahore as also the judgment dated 30th June, 1977 of the learned Additional District Judge, Lahore and dismiss the ejectment application of the respondent. In the circumstances of the case, the parties are, however, left to bear their own costs. S. Q Appeal accepted.