2012 PLP 1035 (YLR)

FAISAL ARAB, J.

The petitioner G.S. Noorwala was the tenant in respect of premises bearing Office No.10 (New No.B-01), situated at first floor of Farooq Manzil (Old Sadiq Manzil), RB-6/107, Arambagh Road, Saddar Town, Karachi. After the death of the petitioner, his son Dr. Mushtaque Noorwala, become statutory tenant being one of the heirs of deceased tenant. In July, 2006, the respondents Nos.1 to 3 purchased the property from the previous owner. A notice under section 18 of Sindh Rented Premises Ordinance, 1979, intimating change of ownership, was dispatched and upon not receiving rent within the statutory period of 30 days as envisaged under section 18 of Sindh Rented Premises Ordinance, 1979 they filed rent case on the ground of default in the payment of rent for the months of July, 2006 and onwards.

2. The points which need to be examined in this case are, whether notice was duly served and if so when it was served and, whether any wilful default in the payment of rent was committed by the petitioner.

3. The case of the respondents Nos.1 to 3 (landlords) is that notice dated 15-7-2006 under section 18 of Sindh Rented Premises Ordinance 1979 was dispatched on 26-7-2006 which was delivered on 27-7-2006 and when rent was not tendered within 30 days period, the default in payment of rent stood established. The counsel for the respondents Nos.1 to 3, during the course of his arguments, placed reliance on 1991 MLD 1088, 2008 CLC Karachi 1598 and 1989 CLC Karachi 757.

4. The case of Mushtaque Noorwala, who is son of the original tenant and present sitting tenant, is that the notice was never received through registered post A/D but it was found on the floor of office on 28-8-2006 and that too in the name of his deceased father and thereafter the rent for the months of July to December, 2006 was offered and upon refusal was dispatched through registered post on 30-8-2006 and upon refusal it was sent through money order on 8-9-2006 and after return of the money order he deposited the same in Court in Miscellaneous Rent Case and, therefore, no wilful default has been committed. In support of his contention, the counsel for the petitioner relied on 1992 SCMR 2400.

5. It has been noted that the date on the notice under section 18 of Sindh Rented Premises Ordinance, 1979 is 15-7-2006, but it is said that it was dispatched in the name of deceased tenant on 26-7-2006. There is no acknowledgement receipt to show that the notice was delivered on 27-7-2006. The dispatch of rent through pay order on 30-8-2006 and upon its refusal the dispatch of money order on 8-9-2006 and upon return of money order the deposit of rent in MRC on 29-9-2006 clearly shows that at all material times the tenant acted with necessary dispatch to tender the rent to the new owners. Even if it is assumed that the notice under section 18 of Sindh Rented Premises Ordinance, 1979 was dispatched on 26-7-2006 the fact remains that it was dispatched in the name of deceased tenant and there is no documentary proof that it was delivered on tenant's office on 27-7-2006. In such circumstances, the default, if any, was of technical nature and ought to have been condoned by the Courts below. There is no cavil to the proposition of law cited by the learned counsel for respondents Nos.1 to 3 that rent is to be dispatched within 30 days of the receipt of notice, but in the present case there is no proof that such notice was received by the tenant. Even under section 15 of Sindh Rented Premises Ordinance through an amendment benefit has been given to the tenant in case of commission of one default if there is no previous default and though such benefit has not been provided under section 18 of Sindh Rented Premises Ordinance 1979, but the benefit under the law in peculiar circumstances of the present case can be extended when the dispatch of rent through pay order is dated 30-8-2006.

6. Vide short order dated 5-10-2011 this petition was allowed, whereby the order dated 4-9-2009 passed by the Rent Controller-VI, Karachi (South) in Rent Case No.276 of 2007 and the judgment dated 19-5-2010 passed by the Additional District Judge-VII, Karachi South in First Rent Appeal No. 314 of 2009 were set aside and these are the reasons of he same. K.M.Z./G-4/K Order accordingly.