On 17.12.1996 the respondent filed an application for the ejectment of the appellant from a building located in Multan urban area. It was stated in the application that the appellant was tenant in the building question under the previous owner since 1993 and that the respondent acquired the said building by means of a registered exchange deed dated 2.6.1996. He informed the appellant verbally as well as in writing of the said fact and called upon her to pay rent at the agreed rate of Rs, 10,000/- per month. The ejectment was sought on the ground of default in payment of rent at the said rate w,e,f, June, 1996 and also on the ground that the building is bona fide required for personal use and occupation. The appellant filed a written reply on 5.5.1997. She admitted that the respondent is owner of the building. She, however, stated that the respondent has entered into an agreement to sell the building in favour of one Javed Khan Niazi vide agreement dated 5.1.1997. It was further stated that the building was previously owned by Ghulam Abbas and was rented out to the appellant on his behalf by Khadim Hussain Sahar and that she is running a School in the said building. She appended a copy of the rent deed. She came to know about factum of transfer by means of a written notice dated 27.11.1996 served upon her by the respondent which she replied through her counsel on 10.12.1996. She appended the copies of the notice as well as the reply. She further sated that she has deposited rent iipto December, 1996, in accordance with the rent agreement and that rent for June, 1996, was paid to Khadim Hussain against receipt whereafter he refused to receive the rent and an application was filed that learned Rent Controller where the rent is being deposited. She also denied the plea of personal requirement. Issues were framed. Evidence of the parties was recorded. The learned Rent Controller allowed the application and passed an order of ejectm9nt on 13.2.1999. I may note here that issues pertaining to both the said ground. i,e, default and personal requirement were found in favour of the respondent by the learned Rent Controller. A first appeal filed by the appellant was heard by a learned ADJ, Multan, who vide judgment dated 3.5.2000 reversed the finding of the learned Rent Controller in the matter of personal requirement but affirm the findings in the matter of default and dismissed the first appeal.
2. Learned counsel for the appellant contends that a case of willful default has not .made out.
According to him, his client was not aware of the change of ownership prior to the receipt of notice and she had deposited the rent after refusal by the said Khadim Hussain Sahar in Court. He further contends that by the time the notice was received, rent for December, 1996, had already been deposited and thereafter rent was deposited in favour of the respondent. Primary reliance is being placed on the case of Mst. Bushra Fayaz v. Ismail (1987 CLC 390) by contending that a copy of the exchange deed was not provided despite demand contained in the reply to the notice and that the rent although deposited in favour of the previous owner would not constitute a default within the meaning of Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959. Further relies on the cases of Muslim Commercial Bank Ltd. and another v. Additional District Judge, Faisalabad and 7 others (1985 CLC 1854) and Qaisar Zamani v. Rasheeda Begum and 2 others (1985 CLC 596) to urge that notice under Section 13-A of the said Ordinance, is must for ordering ejectment on the ground of default. Learned counsel further contends that an application filed for production of additional evidence was not attended to by the learned ADJ. According to him, this failure constitutes material irregularity. Relies on the case of Muhammad Umer v. Muhammad Qasim and another (1991 SCMR 1232).
3. Learned counsel for the respondent, on the other hand contends that even if the contention of his client that he had verbally informed the appellant of the transfer is not accepted, it is an admitted position that the notice as contemplated by Section 13-A of the said Ordinance, had been served upon the appellant calling upon her to pay all the arrears w,e,f, 2.6.1996 but still she did not pay the same. Thereafter, she was served with a notice in the ejectment petition itself and she put in appearance and filed a reply, still the arrears were not paid or deposited in favour the respondent.
The precise contention is that the deposit made in favour the said Khadim Hussain Sahar would be of no avail to the appellant-lady to meet the allegation of default which, according to the learned counsel, stands established on record.
4. I have gone through the lower courts records, with the assistance of the learned counsel for the parties. I have already reproduced above the contents of the respective pleadings of the parties. It will further be seen that before me only the matter of default has been agitated by both the parties.
Before I proceed further, I deem it necessary to reproduce hereunder Section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959: - "13-A. Tenant to be informed in case of transfer of ownership. Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of sub-section (2) of S. 13, if the rent due is paid within thirty days from the dated when the intimation should in the normal course have reached him."
It will be seen that upon a plain reading of the said provision of law, a person acquiring a building which is occupied by a tenant is required to intimate the tenant in writing by registered post of the said fact. The benefit given to the tenant is that he shall not be deemed to have been defaulted in payment of rent for purposes of Section 13(2)(i) of the said Ordinance in case he pays the rent "due" within 30 days from the date when he receives the intimation.
5. Now the appellant herself produced the notice received by her as Ex. R.
2. It does intimate the appellant that the building has been acquired vide exchange deed. The notice finally calls upon the appellant to pay the rent to the respondent against receipt since 2.6.1996 till date.
6. Now the case of the appellant is that the said Khadim Hussain Sahar received the rent for June, 1996 against receipt Ex. R. 4 and then he refused to receive the rent. The attorney of the appellant RW-2 was confronted as to why Khadim Hussain Sahar refused to receive the rent. The reply is that he did not state any reason. Now the copy of the application filed by the appellant on 4.7.1996 for deposit of rent is Ex. C.
1. The only person arrayed as respondent is Khadim Hussain Sahar. It has been stated that she has tendered the rent to Khadim Hussain Sahar for Payment but he refused to receive the same and alongwith one Nadeem Jatoi tried to dispossess her whereupon she filed a civil suit and obtained a stay order. According to Ex.C.2, the said Khadim Hussain appeared in person on 5.10.1996 and stated that he has no objection if the appellant deposits the rent in Court.
The application was disposed of accordingly. Now the said attorney RW-2 stated that he came to know in December, 1996, through notice Ex.R. 2 that the building has been purchased by the respondent. He did not remember the date of receipt of notice and thereafter rent for January, 1997, was deposited in favour of the respondent in Court. It will, thus, be seen that there is no explanation whatsoever on the record as to why after receipt of notice the rent was not deposited in favour of the respondent. Further there is no explanation as to why even after putting in appearance. In the ejectment petition, no attempt was made to deposit the rent for the said period. Needless to state that Section 13-A of the said Ordinance benefits only such a tenant who after receipt of the notice deposits the entire rent due within 30 days. In the present case, this all important condition is missing. No gain saying the fact that a deposit made in favour of Khadim Hussain Sahar cannot be deemed to be a deposit in favour of the respondent.
7. Now coming to the judgments cited by the learned counsel; on this point as noted above, nothing turns on the same as the Hon'ble Supreme Court of Pakistan has held that even if service, of a notice under Section 13-A of the said Ordinance has not proved, the filing of the petition itself is a notice and even thereafter if the rent due is not paid to the new landlord, the tenant can be ejected on the ground of default. The cases of Major (Retd.) Muhammad Yousaf v. Mehroj-ud-Din and others (1986 SCMR 751) and Syed Azhar Imam Rizvi v. Mst. Salama Khatton (1985 SCMR 24) may be referred.
8. In the case of Suleman and another v. M.A Mallick (1988 SCMR 775), in response to a notice issued by the new landlord, the tenant demanded the titled document and continued to deposit the rent in favour of the previous landlord. Their Lordships allowed the appeal of the landlord and ordered ejectment of the tenant. I, therefore, find that the appellant has been correctly held to be a defaulter within the meaning of Section 13(2)(i) read with Section 13-A of the said Ordinance and liable to ejectment.
9. As to the said second contention of the learned counsel, the judgment being relied upon by him interprets Order XLI, Rule 27 CPC. The provisions of Section 15(3) of the Punjab Urban Rent Restriction Ordinance, 1959, are completely different. Whereas Order XLI, Rule 27 CPC contemplates an application to be filed by a party, Section 15(3) of the said Ordinance only refers to the powers of the appellate Court in the matter of conducting further inquiry. Reference be made to the case of Mst. Umari and another v. Faqir Muhammad and another (PLD 1983 Lahore 349). Be that as it may, the appellant sought production of the records from the Court of the learned Rent Controller with whom she had been depositing the rent with the contention that the rent has not been withdrawn.
To my mind, nothing would turn on the said record for the simple reason that the factum of deposit stands proved by production of the relevant challans. What has not been proved is that at any time after the admitted receipt of notice and then filing of the ejectment petition, the due rent from June to December, 1996, was paid or deposited in favour of the respondent.
10. No other point has been urged. The SAO is accordingly dismissed with no orders to costs.
However, the appellant is directed to vacate the building in question and to hand over vacant possession to the respondent on or before 30.6.2005 failing which the respondent shall be entitled to recover vacant possession by executing the impugned ejectment orders.
11.The records of the learned lower Courts be remitted back immediately.