2006 PLP 1135 (MLD)

MRS. YASMIN ABBASEY, J.

By this common order I intend to dispose of these Constitution petitions as common questions of law and fact are involved, therein. The petitions are directed against the order of learned District Judge, Karachi South, whereby appeal of the respondent landlady was allowed and order for handing over vacant possession of the premises in question was passed against the petitioner on the ground of default in payment of rent. It is pleaded by the learned counsel for the petitioner that original landlady of the premises expired on 26-4-2003 and thereafter he did not receive any notice of transfer of ownership, therefore, till filing of rent applications on 23-12-2003 and receipt of its notice on 31-12-2003 he was unaware of the transfer of ownership of the premises in favour of the respondent No.3. He further contends that as previous landlord used to collect rent from the tenents annually at her own, therefore, he remained unaware about her death. However, after receipt of notice of the rent applications bearing No.1427/2003 he came to know about the change of ownership and consented to the grant of application under section 16(1) of Sindh Rented Premises Ordinance, 1979 and consequently had deposited the rent in Court on 16-2-2004 in compliance of the rent order passed in the matter, as such, no default was committed by him. In support of his contention learned counsel has referred 1987 CLC 1113 wherein it is observed that "change of ownership of premises from previous landlord to present one--tenant not served with legal notice under section 18--effect--such tenant could not be charged with penal consequences of default in payment of rent". Hence, under these circumstances, it is pleaded by the learned Counsel for the petitioner that no default in payment of rent was committed by him and the observation made by the learned appellate Court in that regard is not in accordance with law. In reply to these arguments it is contended by the learned Counsel for the respondent No.3 that the very institution of rent application was a notice under section 18 of the Sindh Rented Premises Ordinance, 1979 and it is after receipt of notice the petitioner was bound to deposit he rent in Court within thirty days from the date of notice. In support of his contention has he referred 1986 SCMR 75 wherein it is observed that rent being admittedly not paid after institution of application for eviction, which has also been treated as notice under section 13A, the respondents were liable to be ejected. But this observations made by the Honourable Supreme Court were in different context. Such observation was made in the circumstances when even after service of notice of ejectment application, tenant tailed to pay' rent, whereas in the present case petitioner/tenant himself had consented to the grant of application under section 16(1) of Rent Ordinance, and had also complied with the order passed therein within four days. Therefore, to observe that a petitioner had failed to deposit rent within 30 days of receiving of notice of rent application, therefore he has committed default in payment of rent in contravention of the provisions of section 18 of the Ordinance does not appear to be correct, because while considering the point of default as alleged in the matter the previous practice adopted by petitioner in payment of rent and his intention to pay rent is material. Admittedly before institution of this case petitioner was not in knowledge of change of ownership, nor respondents have brought on record that in fact petitioner was habitual defaulter or had ever committed default in payment of rent. Therefore under these circumstances the filing of ejectment application would be a surprise for him and when he came in knowledge of fact he immediately consented to deposit rent and without any fail also deposited rent in Court just after 4 days of passing of rent order. Under these situations imposing a penalty on petitioner under section 18 of? S.R.P Ord., is a misuse of law. In view of foregoing reasons impugned judgment of learned Addl. District Judge is hereby set aside and that the Rent Controller's order dated 31-1-2005 is maintained, H.B.T./D-33/K??????????????????????????????????????????????????????????????????????????????????? Petition allowed.