1997SCMR1781 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑This appeal is from the judgment of Peshawar High Court, Peshawar, dated 9‑5‑1995 dismissing First Appeal from Order No. 18 of 1995 filed under section 24 of the Cantonments Rent Restriction Act (XI of 1963) (hereinafter called as the Act) and confirming thereby the order of the Additional Controller of Rents, Peshawar Cantonment, for the petitioner's ejectment from shop No.58, Khyber Medical Centre, Peshawar Cantonment.

2. Respondent No. l sought the ejectment of the petitioner and respondent No.2 from the disputed shop on the grounds: firstly, of default in payment of rent; secondly, of subletting it to respondent No.2; thirdly, of bona fide personal need and fourthly, of impairing the value, look and unitility of the shop. The petitioner, besides pleading want of notices on the part of respondent No. l to have purchased the disputed property from its original owner Samiullah denied the existence of relationship of landlord and tenant between the parties or that respondent No. l needed the premises for his bona fide personal requirement. In denying the relationship of landlord and tenant between the parties the petitioner claimed that during subsistence of his tenancy under its owner Saminullah, the petitioner had purchased the disputed shop from the latter for a sum of Rs.one million on the foot of an agreement deed dated 22‑4‑1986 out of which he had paid Rs.7 million to him and had agreed to pay the balance of Rs.3 million at the time of registration of sale‑deed.

3. The learned Additional Rent Controller recorded the evidence of respondent No.1 but could not record the petitioner's evidence to despite his best efforts by affording him 24 chances to produce it. Ultimately, he closed the petitioner's defence and ordered his ejectment on 12‑4‑1995, on the ground of denial of relationship of landlord and tenant between the parties by the petitioner with consequential forfeiture of his tenancy and default in payment of rent.

4. The learned Judge in the High Court who was seized of the First Appeal from Order after scanning the evidence led by respondent No.1 and perusal of the record came to the conclusion that the claim of respondent No.1 qua his title to the shop in dispute was amply substantiated by the registered sale‑deed. Exh.PW‑1/1 and Mutation Letter Exh.PWI/2. That the claim of acquiring rights of ownership of the shop in the instant case conferred on him status of a landlord defined in clause (g) of Section 2 of the Act. The learned Judge further observed that like the original owner the transferee from the former becomes entitled to receive rent. According to the learned Judge the petitioner having failed to bring on record any evidence worth the name in support of his claim to have purchased the shop from Saminullah which was founded on an agreement dated 22‑4‑1986 placed on the file and, therefore, the petitioner could not escape his liability to pay the rent to respondent No.1. It was also held by the learned Judge that mere filing of the civil suit by the petitioner against respondent No. l to claim title on the alleged agreement dated 22‑8‑1986 was not enough of a justification to deny either the relationship of landlord and tenant or decline to pay monthly rent to respondent No.

1. In this context the learned Judge placed reliance on the dictum of this Court in the case of Muhammad Ihsan v. Muhammad Hafeez (1995 SCMR 1380). The learned Single Judge also reached the conclusion that the notice of transfer of the shop by respondent No. l to the petitioner was not legally required under the Act as there was no provision in pari materia with that of section 13‑A of Urban Rent Restriction Ordinance, 1959. In this regard the principle enunciated by this Court that registered sale‑deed was a public notice to all reference was made to (1) Wali Muhammad v. Mukhtar Hussain (1991 SCMR 224) (2) Muhammad Siddique and others v. Sayed Mansoor Ali Shah (1989 SCMR 511). In view of these findings the learned Judge in the High Court concurred in the findings recorded by the Additional Rent Controller.

5. Mian Yunus Shah, learned Senior Advocate Supreme Court, in support of this petition stressed that there was nothing on the record to show that the first respondent had issued any notice muchless than a valid one conveying the factum of transfer of the right in the shop in his favour to the petitioner which being a condition precedent for creation of tenancy, the relationship of landlord and tenant did not subsist between the parties and, therefore, the petitioner was not liable to ejectment. Mian Yunus Shah submitted that the learned Judge had erred to hold that the registration of a deed of sale was not a notice by itself. In support of this proposition reliance was placed with vehemence on Tilakdhari Lal and another v. Khedan Lal and others (AIR 1921 Privy Council 112) and Mst. Ghulam Fatima v. Mt. Gopal Devi and another (AIR 1940 Lahore 269). In the former case of Tilakdhari Lal (supra) the ratio was that whether registration is or is not notice in itself depends upon the facts and circumstances of each case. In the latter case of Mst. Ghulam Fatima (supra) the precedent of the Privy Council in the case of Tilakdhari was followed and it was held that the Transfer of Property Act, 1882, was not in force in Punjab and hence section 3 of that Act as amended in 1929 did not apply to that Province. Consequently the state of law as existed prior to 1929 according to which registration did not amount to notice continued to hold good in that Province. The aforenoted principle was propounded in the background of a number of mortgage transactions some of ` which were executed by registered deeds. When question of rights of several mortgagees or sub‑mortgagees was being considered, it was pleaded that registration of a mortgage was itself a notice and, therefore, plea of previous mortgagees that registration was notice to all was repelled holding that notice cannot in all cases be imputed from the mere fact that a document is to be found upon the Indian register of deeds. The ratio of the two precedents cited above are not attracted to the facts of the case in hand. The foremost question is whether the landlord was legally bound to give to the tenant a notice of transfer of the premises to him. Such a notice is a statutory requirement under section 13‑A of the Urban Rent Restriction Ordinance. 1959.

6. In this Treatise: "The Interpretation of Statutes", Sventh Edition at page 363 N.S. Bindra has quoted with authority an illuminating observation made by Earl Loreburn on the concept of casus omissus which being relevant to the proposition before us is reproduced hereunder: "Now it is one thing to introduce terms into an Act of Parliament, said Earl Loreburn in Bristol Guardians v. Bristol Waterworks Co. in order to give effect to its clear intention by remedying mere defects of language. It is quite another thing to imply a provision which is not in the statute in order to remedy an omission. Without any ground for thinking that you are carrying out what Parliament intended... To insert such provisions would be simply making, not interpreting, the law. "

7. A statute may not therefore, be extended to meet a case for which provision has clearly and undoubtedly not been made. When the Act has omitted to make provision for issuing the notice of purchase of the property by the purchaser to the tenant, it is safer to presume that the omission is deliberate than that it is due to forgetfulness or made per incuriam.

8. Even otherwise the learned Judge had rightly followed the law laid down by this Court on the requirement of notice of transfer of premises to the tenant in the cases of Muhammad Siddique and Wali Muhammad (supra). In the aforementioned case Full Bench comprising of five learned Judges of this Court held as under:‑‑ "With regard to the next submission as to non‑service of notice it may be stated that there is no provision in the Act that the transferee of a property should give a written notice to the tenant of the transfer of the property in his favour. The respondent in his evidence has stated that he orally informed the petitioners about the transfer and claimed rent from him. The two Courts below believed this evidence. Even otherwise, the petitioners in their written replies or at any subsequent stage offered or expressed their willingness to pay the rent to the respondent. Indeed, they persisted in denying the title of the respondent to the property and setting up the same in Mst. Khurshid Jehan Begum."

9. The dictum had been reiterated by this Court in the subsequent case of Wali Muhammad (supra) in the following paragraph:‑‑ "It is next contended that no notice of transfer was served on the appellant. Though, there is no provision similar to section 13(a) in the Cantonments Act but he submitted that general provisions of Transfer of Property Act would apply and as the landlord had failed to issue notice to the appellant, therefore, the appellant could not be adjudged as a defaulter. This contention has no force. The transfer was made through a registered document and this itself is a public notice to all. In fact, the appellant has denied the relationship of landlord and tenant, therefore, it is the admitted position that he had not paid rent to the respondent. "

10. It would thus be noticed that service of a notice of transfer of a premises by the purchasers to the tenant under the Act is not a sine qua non to seek the latter's eviction either on the ground of default in payment of rent or on account of latter's denial of relationship of landlord and tenant. In any case conceding for the sake of argument that such a notice was necessary on equitable consideration still the petitioner could have availed of the opportunity to tender rent within two months of the receipt of the notice of the eviction petition from the Rent Controller which he had failed to pursue. The petitioner was not inclined to do so because he had denied the relationship of landlord and tenant between respondent No. l and himself, therefore, the so‑called non‑service of notice on the part of respondent No. l was just a lame excuse.

11. It was lastly contended by Mian Yunus Shah that the petitioner had filed civil suit which was founded on the agreement dated 22‑8‑1986 allegedly executed by respondent No. l in favour of the petitioner and that pending decision thereof the ejectment order passed against his client was not sustainable in law. Reliance in this context was placed on two cases of this Court: (1) Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064) and (2) Province of Punjab v. Mufti Abdul Ghani (PLD 1985 SC 1). We have decided to refrain from making any observations on the ratio deducible from the aforenoted two precedents lest it should adversely affect the rival claims of the parties in Civil Courts. Nonetheless we cannot but reiterate the emphasis that was laid in Rehmatullah's case and repeated in the latter case of Mufti abdul Ghani (supra) that 'the Rent Controller has in every such case to make distinction between genuine and well founded dispute about the title and that which is vaxatious (designed to achieve delay frivolous or without foundation)".

12. In the result the petition being devoid of merit is dismissed and leave refused. A.A./S‑11/S Leave refused.