1986 PLP 1583 (MLD)

(e) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑Ss. 2(f)(j), 15 & 21(1)‑‑West Pakistan Urban Rent Restriction Ordinance (.VI of 1959), S.13‑A‑‑Relationship of landlord and tenant, proof of‑‑Pleadings and evidence on record clearly showed that legal heirs of deceased tenant had accepted son of deceased owner of premises as exclusive landlord and had directly been paying rent to him‑‑Ejectment application filed against such legal heirs in capacity of tenants on ground of default in payment of rent, held, would be maintainable as on death of original tenant, his legal heirs had become statutory tenants by operation of law. Sabumal v. Kika Ram 1983 S C M R 282; P L D 1973 Quetta 1; PLD 1979 Quetta 39 and P L D 1985 S C 1 ref. Nooruddin N. Ramzan for Appellants. Salim Karamally for Respondent. Date of hearing: 11th February, 1986. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, has been filed by the appellants /tenants impugning the two orders passed by the Rent Controller in Rent Case No. 4141/77 filed by the respondent /landlord for ejectment. The first order is, dated 28‑11‑1983, whereby the Rent Controller dismissed the application of the appellants, by which application the appellants had prayed that the ejectment application be dismissed, as the respondent had stated in his cross‑examination that he was not treating the appellants as his tenants. The other order, which is impugned in this appeal, is the final order, dated 14‑4‑1984 passed by the Rent Controller allowing the ejectment application on the ground of default in the payment of rent and ordering ejectment of the appellants. I have heard the arguments of Mr. Nooruddin Ramzan, learned counsel for the appellants and Mr. Saleem Karamally, learned counsel for the respondent. The learned counsel have also taken me through the entire record.

2. The first contention of the learned counsel for appellants was that no notice under section 13‑A of the 1959. Rent Ordinance had been given by the respondent to the appellants and as such the ejectment application was liable to be dismissed and reliance was placed on the case of Sabumal v. Kika Ram reported in 1973 S C M R

185. In the instant case the deceased father of the five appellants was the tenant of the deceased parents of the respondent in respect of the tenement in question. It was submitted by the learned counsel for the appellants that apart from the respondent, other sons and one daughter were also left by the deceased parents of respondent as their legal heirs and as such the respondent was not the sole owner and in any case no notice under section 13‑A of the 1959 Rent Ordinance was given by the respondent. In the facts and circumstances of this case, I find no substance in this argument. The respondent had claimed to be the owner and landlord of the premises since 1‑1‑1975 and admittedly the appellants had paid rent to the respondent from January, 197 to April, 1977. In fact the documentary, evidence shows that the appellants had accepted the respondent as their landlord. Mr. Nooruddin Ramzan, learned counsel for the appellants, could not deny this fact. Having accepted, the respondent as their landlord after the death o the parents of the respondent, and paying rent to the respondent for a period of over two years, the appellants cannot take up the stand that no notice under section 13‑A was served upon them. Having accepted the respondent as their landlord and having paid rent to him directed the purpose of section 13‑A of the 1959 Rent Ordinance had been achieved. The appellants are estopped from taking up the plea that no notice under section 13‑A had been served upon them. Reference in this regard may be made to the judgment in the case of Riaz Ahmad v. Muhaminad Hussain reported in 1984 C‑L C 841, in which judgment of learned Single Judge of this Court, reliance was placed inter alia on the, two judgments of the Supreme Court namely Xhuda Bux v. Muhammad Yaqoob 1981 S C M R 179 and Everyday Picures Lisited v. Chamman Begum 1983 S C M R 2.82. Reference was trade in that judgment t the case of Sabumal v. Kika Ram relied upon by, the learned counsel for the appellants. The case of Sabumal v: Kika Ram has been explained in 1983 S C M R

282. The law has been very clearly laid down by he Supreme Court and applying the said law it is held that on the facts and circumstances of the instant case it was not necessary for respondent, to serve a notice under section 13‑A of the 1959 Rent Ordinance upon; the appellants.

3. The ejectment case against the appellants was filed by the respondent on 6‑10‑1977 and the allegation was that rent had not been paid by the appellants since May, 1977. It is an admitted position on record that rent was in fact not paid, from May, 1977 till December, 1977 and it was only in January, 1978 that a miscellaneous rent case was filed by the appellant No.5 and then rent was deposited. In the written statement a plea had been taken that money‑orders had been sent but in the evidence money‑orders or their receipts had not been produced. However, on a question from the Court Mr. Nooruddin Ramzan stated that oral evidence shows that money‑order had been sent in anuary, 1978. The documentary evidence as well as oral evidence, therefore, shows that rent had not been paid w.e.f. May, 1977 till December, 1977. There is an admitted default and the Rent Controller has ordered the ejectment holding that the default is wilful. It was contended by the learned counsel for the appellants that the impugned order is illegal and in the facts and circumstances of this case discretion should have been exercised in favour of the appellants and in suppor of this contention it was submitted as follows:‑ (i) There was a dispute between the other legal heirs of the parent of the respondent that the rspondent was not the sole owner and all the legal heirs of the appellants were the co‑owners of the property in question, in which tenement in appeal is located. find no merit in this argument. If there was a dispute between he legal heirs of the parents of the respondent and the appellants were doubtful as to whom they should pay the rent they should have immediately, on coming to know about the dispute, made miscellaneous application to the Rent Controller and should have started depositing the rent there. However, the facts are that they accepted the respondent as their exclusive landlord an went on paying rent to him for over two years and did not pay rent thereafter. No case has been made out that the appellant came to know about the dispute some time iii April or May, 197 and that is why they did not tender or pay the rent to the respondent. (ii) The next submission in this regard was that the rent receipts, which had been issued by the respondent, did not show the appellants as the tenants and they continued to show the deceased father of the appellants as the tenant. There is no substance in this argument. Admittedly the appellants accepted the respondent as their landlord and admittedly they paid rent to the respondent for over two years and admittedly the rent was received from the appellants by the respondent. In the circumstances, the fact, that in the rent receipts the name of the deceased father of the appellants was mentioned, does not at all strengthen the case of the appellants. (iii) The other contention of the learned counsel for the .appellant was that rent was being collected in lump sum by the respondent through his Chowkidar at intervals of several months and this was for the convenience of the respondent. I have perused the rent receipts issued by the respondent to the appellants, which were produced during the evidence before the Rent Controller and these receipts do not show that rent was being collected i lump sum at intervals of several months for the convenience of the respondent. The burden of establishing this, in view of the provisions of the Rent Restrictions Ordinance, 1959, was on the appellants and this burden was not discharged. (iv) The last contention of the learned counsel for the appellants was that the respondent had been taking up the plea that the appellants were not his tenants and as such the ejectment application ought to have been dismissed as not maintainable and in this regard the first order, dated 28‑11‑1983 of the Rent Cantroller, referred to earlier, was also attacked. From an examination of the pleadings and the evidence in this case it has been found that the appellants had accepted the respondent as their landlord and respondent had been receiving rents from the appellants. Ejecment application was filed by the respondent against the appellants referring them to be the legal heirs of the, deceased tenant, namely, the father of the appellants. On the death of the father of the appellants at a time when the 1959 Rent Ordinance was in operation, the appellants became tenants by operation of law. There was some confusion in the mind of the respondent as is reflected in his evidence as to whether individually anyone of the appellants could become a tenant or that all the appellants had become joint tenants. This confusion, however, did not make the ejectment application non‑maintainable. A perusal of the ejectment application clearly shows that the appellants had been impleaded as opponents in the ejectment application in the capacity of tenants by operation of law. In the ejectment application it had been averred that the appellants are constant and chronic defaulters in the payment of rent and in spite of insistent demands they had not paid rent, w.e.f. May, 1977. I find no fault in the order, dated 28‑11‑1973 of the Rent Controller to the effect that on the death of the father of the appellants, the appellants as legal heir: and become statutory tenants. It may be observed that the learned counsel for the appellant had also cited P L D 1973 Quetta 1; P L D 1979 Quetta 39; and P L D 1985 S C

1. The facts in all these three cases are distinguishable any these judgments do not support the case of the appellants.

4. As a result, F . R . A . No. 565/ 84 is dismissed but‑ with no order as to costs. The appellants are, however, granted time till 30‑6‑1981 to vacate the premises subject, however to regular deposit payment o rent. In view of the dismissal of the appeal, C.M.A. No. 1476/85 file by the respondent has become infructuous and stands disposed of a such. H . B . T . Appeal dismissed