P L D 1993 Lahore 101 (PLP)

This is an appeal against the order dated 22-1-1991 whereby the learned Addtional District Judge, Lahore dismissed the appellants' appeal against the order dated 26-2-1990 by virtue of which the learned Rent Controller, Lahore had ordered their eviction from the shop in question. 2. , The relevant facts, in brief, are that on 4-1-1988 Nadeem-ud-Din Malik, respondent herein, instituted a petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 for the eviction of Muhammad Yousaf and Muhammad Younas appellants from the shop in dispute shown in red colour in the site plan Exh.A/6. It was averred that the shop in question originally belonged to Malik Zulfiqar Ali who through a gift, which was subsequently acknowledged though a written declaration transferred the same to his son, the respondent, The appellant were occupying the said shop as tenants on payment of Rs.400 per month as rent. The respondent informed them about the transfer of ownership of the said shop through a legal notice dated 1-3-1987 but they never paid any rent to him and thus rendered themselves liable for ejectment on account of wilful default. The respondent 'further stated that the shop in dispute was required by him for his personal use ,and occupation.

3. The petition was resisted by the appellants who denied the relationship of landlord and tenant between the parties. They maintained that they were the tenants under Malik Zu1fiqar Ali and were depositing rent in his name and thus were not defaulters. Accofdingly the following (preliminary) issues were framed by the learned Rent Controller: (1) Whether . relationship of landlord and tenant exists between the parties? O.P.R. (2) Order. The parties led their evidence on the said issues. After considering the said evidence the learned Rent Controller vide order dated 16-2-1990 decided issue No.1 in favour of the repondent holding that the appellants were the tenants under the respondent. Consequently they were ordered to be ejected from the shop in question within four months. Feeling aggrieved the appellants went up in appeal but their appeal was dismissed by the learned Additional District Judge, Lahore vide order dated 22-1-1991. Still not satisfied they have come up in second appeal. 4. 1 have heard the parties' learned counsel and have also gone through the record. 5, It is an admitted fact that the . shop in dispute originally belonged to Malik Zulfiqar Ali, the father of the respondent. According to the respondeni his father had alienated the shot) in question to him through an oral gift which was subsequently acknowledged through declaration Exh.PA/1 dated 1-3-1987. The declaration is duJy proved by its attesting witness Muhammad Sharif A.W2- From the statements of Sarfraz AIL Advocate, A.W.1 and respondeift Nadeem-ud-Din A.W3 it is abundantly proved that Malik Zuffiqar Ali had orally gifted the shop in question to the respondent a day before the execution of LA.F.A/1. It is also an admitted fact that the two appellants, namely, Muhammad Yousaf and Muhammad Younas were occupying the shop in dispute as tenants under the father of the respondent prior to 1-3-1987 and are continuing to be in possession of the said shop.

6. It is the case of the respondent that a notice undersection 13-A of the Urban Rent Restriction Ordinance, 1959 dated 1-3-1987, a copy of which is ExhA/2, had been served on the appellants by him and that the same was received by Muhammad Yousaf appellant, the addressee, through acknowledgment due receipt ExhA/4. A pertinent question arises if by the aforesaid notice relationship of landlord and tenant had come into existence between the respondent and the appellants. Learned counsel for the appellants has contended that the said notice was defective in so far as it was served on Muhammad.Yousaf only and was not served on the co-tenant Muhammad Younas. Perusal of the copy of the notice ExhA/2 shows that it was addressed to Muhammad Yousaf appellant only who had received the same. Admittedly no separate notice was issued to Muhammad Younas co-tenant who is the brother of Muhammad Yousaf aforesaid. I am, however, of the view that in the circumstances of the case the notice would not be rendered defective on account of this omission. In his statement before this Court dated 27-3-1991 Muhammad Yousaf appellant has admitted having received the aforesaid notice and stated that after the receipt of the notice he and his brother Muhammad Younas co-appellant had contacted the respondent and had asked him to show them a registered deed on the basis of which he was claiming ownership and that the respondent told them that his father had orally gifted. the shop in dispute to him. This is sufficient to establish that both the appellants were aware of the notice and the change of ownership mentioned therein. In this view of the matter separate notice to Muhammad Younas was not necessary. It has been held in Zafarul Haq v. Waris lqbal and another (PLD 1979 Lah. 793) that service of notice on one of the several joint tenants, who were brothers inter se, would mean that it had reached rest of them and non-service of such notice on others would not cause any prejudice to them. It was further held in Amanullah and others v. Muhammad Hafeez and others. (1984 CLC 2126) that non-service of notice. under section 13-A of the Urban Rent Restriction Ordinance on each of the joint tenants would not render such notice as defective. It was laid down in Syed Azhar Imam Rizvi v. Mst. Salma Khatoon (1984 MLD 46) that once a tenant was aware and had knowledge of change of ownership he would be estopped from raising the plea of want of notice under section 13-A of the Urban Rent Restriction Ordinance, 1959. In Syed Azhar Imam Rizvi v. Mst. Salma Khatoon (1985 SCMR 24) and Major (Retd.) -Muhammad Yousaf v. Mehraj-ud-Din and others (1986 SCMR 751) institution of ejectment petition itself was treated as a due notice under section 13-A of the Ordinance. Further, it was held in Syed Hamid Hussain v. Mst. Humaira Ghias (1986 CLC 1873) that the new owner is required to serve notice on sitting tenant intimating him about change of ownership and was not required to show or supply to him (tenant) copies of transfer documents. It was laid down in Dr. Quraishul Mujtaba Qarni v. S. Usman Ali Kazmi (1992 CLC 2114) that a tenant has no locus standi to challenge gift of premises in dispute in favour of 'landlord' even if such gift may not be legally correct. So, in view of the law laid down in the aforementioned cases, I am convinced that in the present case the appellants had been served with a valid notice under section 13-A of the Urban Rent Restriction Ordinance, 1959 and relationship of landlord. and tenant between the parties had come into existence. Admittedly the appellants failed to tender or pay any rent to their new landlord i.e. the respondent and thus rendered themselves liable for immediate ejectment. Depositing rent in the office of the Rent Controller in the name 01' the previous landlord would not be considered a valid tender or payment of rent.

7. The result of the above discussion is that the appellants have rightly been ordered to be evicted from the shop in dispute. The impugned orders do not call for any interference. There is no merit in this appeal which is dismissed with costs. The appellants, however, are given 4 months' time to vacate the premises in question. AA./M-761/L Appeal dismissed.