1990 PLP 1463 (CLC)

Date of hearing: 26th November, 1989. Dispute in the writ petition concerns a house situated within municipal limits of Sialkot. It was owned by Haji Aziz Din. He let it out to Qamar‑ud‑Din as tenant upon payment of monthly rent. Haji Aziz Din died on 11‑3‑1975. He was survived by heirs including his daughter Mst. Khurshid Begum. On 27‑9‑1977, Mst. Khurshid Begum commenced an action in ejectment against Qamar‑ud‑Din in respect of the house in dispute on the ground of default in payment of agreed monthly rent since September 1974 to August 1977, total rent arrears being Rs.

875. Qamar‑ud‑Din resisted the application and raised number of defences. It was submitted that Rent Controller had no jurisdiction to try the case; that in absence of other heirs of Haji Aziz Din, ejectment application was imperfectly constituted and was liable to dismissal; that notice under section 13‑A of Rent Ordinance was not served; that ejectment application and the vakalatnama were not thumb marked by Mst. Khurshid Begum; that, in absence of list of heirs of the applicant (Mst. Khurshid Begum) ejectment application merited rejection. On merits, it was pleaded by Oamar‑ud‑Din that house in dispute was taken on rent by him from Haji Aziz Din and monthly rent from September 1974 to July 1977 had been paid to Mohammad Yousaf husband of Mst. Kliurshid Begum but because of existing amicable relations, receipts were not issued and rent for the month of August and onward was deposited in the treasury. From the defence, it was evident that relationship of landlord and tenant was not denied either expressly or impliedly. Pleadings gave rise to following issues:‑‑ (1) Whether this Court has no jurisdiction to try this case? OPR. (2) Whether there are some other necessary parties to this petition, if so, what is effect of their non‑joinder? OPR (3) Whether the notice under section 13‑A was required to be served upon the respondents, if so, what is the effect of non‑service? OPR (4) Whether the petition has not been verified by petitioner, if so, with what effect? OPR (5) Whether the respondent has defaulted in payment of rent? OPA. (6) Relief. After settlement of issues, the rent case was postponed for evidence of the parties. Both the parties gave evidence in support of their respective versions. Upon its consideration, learned Rent Controller found all the issues in favour of the landlady and directed ejectment of the tenant who was allowed one month to deliver possession. Tenant filed an appeal. It was heard by learned Additional District Judge, Sialkot who found that in absence of notice under section 13‑A of the Rent Ordinance, 'ejectment case on the basis of rent‑default could not proceed. Consequent upon this conclusion, appeal was accepted, ejectment order was set aside and the ejectment petition dismissed vide order dated 5‑2‑1981. From the impugned order, it is manifest that no finding express or implied was recorded on issue No.5 which related to default in payment of rent. Aggrieved of the decision in appeal, Mst. Khurshid Begum filed a petition in constitutional jurisdiction to question its correctness. It was admitted to hearing on 31‑5‑1981. Seen from the above, only material point requiring decision is whether notice under section 13‑A of Ordinance VI of 1959 was required to be served as held by learned Additional District Judge. Findings on remaining issues except issue No.5 which was not adverted to in appeal were not assailed by either party. Pleaded rent‑default had two parts, first part related to the rent‑default in the lifetime of the deceased landlord and the second part followed his decease. On behalf of the petitioner, it was argued that in regard to the first part, no notice was required to be served and in regard to the second, ejectment application itself was a sufficient notice to the tenant. In support, learned counsel relied upon Nazar Hussain v. Aslam Shah P L D 1977 Lahore

210. In opposition, Mr. Zamir Tirmazi learned counsel for the tenant submitted that section 13‑A was mandatory and its non‑observance was fatal to the ejectment petition based on the sole ground of rent‑default. In support of the above contention, learned counsel relied upon Mst. Razia Butt v. Ghulam Raza P L D 1979 Quetta 157, Sh. Muhammad Hussain v. Mst. Mubina Begum and another 1979 C L C 42 and my decision in Qaisar Zamani v. Rasheeda Begum and 2 others 1985 C L C 596 wherein I had differed with the decision in Mst. Aziz Begum v. Faiyaz Butt N L R 1980 (Civil) Lahore 134 in which it was held that ejectment application was itself a sufficient notice in terms of section 13‑A of the Rent Ordinance. The question whether filing of ejectment petition was itself a substantial compliance with statutory notice in section 13‑A of the Rent Ordinance came up for consideration before the Supreme Court in Syed Azhar Imam Rim v. M s t. Salina Kh atoon 1985 S C M R 24 wherein it was held that it substantially served the requirements of statutory notice. Their Lordships, on the point of notice observed:‑ "The learned counsel was unable to deny that the petitioner had received the notice and copy of the ejectment application through registered post. Even if the same were not so received by him the fact remains that the receipt of the ejectment application is not denied. It is also not denied that in 1978 the petitioner became aware of the sale made in favour of the respondent. It is also a fact that on account of the said sale the issue regarding relationship of landlord and tenant was decided by the learned Rent Controller in favour of the respondent in October, 1979. In these circumstances the failure of the petitioner to offer the rent to respondent landlady even after October, 1979 was without any justification. The mere fact that the application for his ejectment was pending or that an order under section 13 (6) had not yet been passed would not absolve him of his duty under the Rent Restriction Law to pay/offer the rent to the landlady each month on time. The argument that he was permitted by law to withhold payment of rent till an order is passed under section 13 (6) by the Rent Controller is neither supported by statute nor any principle. It is also not correct that after the admission by the petitioner that he had received a copy of the ejectment application in 1978 wherein the factum of sale in favour of the respondent had clearly been mentioned, he was entitled to any other formal notice under section 13‑A. The receipt of the copy of the ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of section 13‑A of the Ordinance. And the mere fact that after about a year he made the deposit under compulsion of an order of deposit made by the High Court will not make any difference." In Mohammad Siddique v. Mst. Sharifan and another Law Notes 1969 S C 78, Supreme Court held that "If any fresh notice was, in fact, required, the ejectment application itself was to be regarded as sufficient notice in this behalf." From the extracts quoted above, it is evident that filing of ejectment petition was regarded as substantial compliance with the provisions in section 13‑A of Rent Ordinance. Therefore, the view of law taken in appeal that absence of notice posed an effective bar to the maintainability of the ejectment petition based on sole ground of rent‑default cannot be upheld. Further, it is seen from the pleadings and the evidence led in the case that the tenant knew of the death of the former landlord and did not entertain any doubt about the entitlement of his daughter to receive rent from him. In fact, he led evidence to establish payment of rent to her husband. But in absence of a finding on rent default by the learned Judge below, plea of default could not be adverted to and commented B upon, for the first time, in writ jurisdiction for recording a decision on it. Initial jurisdiction to decide on the issue of rent‑default rests with the appellate authority. In this view, writ petition is bound to succeed. Accordingly, I would accept this petition, set aside order dated 5‑2‑1981 of learned Additional District Judge, Sialkot passed in Misc. Civil Appeal No. 43 of 1979 and direct learned District Judge, Sialkot to decide the appeal afresh in accordance with his finding on the issue relating to rent‑default. Findings on remaining issues shall not be disturbed. As the decision of the rent case has already suffered enormous delay, learned District Judge may prefer to decide the appeal expeditiously preferably within two months. Costs to be borne as incurred. AA./K‑247/L Case remanded.