RANA BHAGWANDAS, J.---By this common judgment we intend to dispose of above mentioned four petitions, as the same arise out of a common judgment and involve common questions of law and fact.
2. Petitioner landlady is aggrieved by Sindh High Court order, dated 22-2-2006 passed in constitutional jurisdiction whereby High Court set aside the appellate Authority's judgment directing eviction of the respondents from the demised premises on the ground of default and maintained ' order of the Rent Controller whereby Controller had dismissed rent cases.
3. Petitioner sought ejectment of the respondents through identical eviction applications on the ground that, after the death of her mother Mst. Zarina Shaheen Malik on 26-4-2003, respondents being old tenant in respect of godowns situated on the ground floor of the building called "Sabir Manzil" had committed default in payment of rent with effect from January, 2003 to November, 2003. Respondents, in their respective written statements, raised a preliminary objection with regard to lack of notice as required under section 18 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979) on the part of the petitioner or any other, legal heirs of the deceased landlady. On facts, they sated that the terms of payment of rent for the last many years were the collection of rent annually and not monthly. It was the stance of the respondents that the deceased landlady used to collect rent after the expiry of year and sometimes during the course of the year according to her choice. On divergent pleadings of the parties, Controller settled three issues with regard to service of notice under section 18 of the Ordinance 1979; wilful default in payment of rent and terms of payments of rent.
4. Both the parties adduced evidence. Upon evaluation of the evidence, learned Controller by identical orders, dated 31-1-2005 held that notice under section 18 of the Ordinance was not served; that there was no default in payment of rent and that there was a consistent practice of collection of rent by deceased-landlady in lump sum without any objection. Consequently, the rent cases were dismissed. Appeals preferred before the Appellate Authority were, however, allowed on the premise that no doubt intimation under section 18 of the Ordinance, 1979 was not sent to the respondent-tenants as required by law but the act of filing ejectment applications on the ground of default after the change of ownership in favor of the petitioner filed on 23-12-2003 would constitute notice and as the respondents did not care to pay rent to the petitioner or deposited the same in the office of the Controller, therefore, it was an act of deliberate and wilful default.
Respondents, however, succeeded in obtaining relief from the High Court and getting reversal of the orders of the appellate Authority and restoration of the orders of the Controller, leading to these petitions.
5. We have heard learned counsel for the parties at great length. It is vehemently contended on behalf of the petitioner that notice of institution of the rent cases was duly served on the respondents on 31-12-2003, therefore, in terms of section 18 of the Ordinance, 1979 they were duly intimated about the change of ownership but since they failed to perform their statutory duty by not paying or tendering the rent within 30 days of such intimation, they had committed a wilful default in the performance of their legal duty.
6. For the sake of convenience and ready reference, section 18 may be reproduced, which reads as under:-- "18. Change in ownership.---Where the ownership of a premises in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant."
7. On its part, High Court has elaborately discussed this aspect of case and accepting the contention of the petitioner that service of notice of ejectment petitions would constitute a valid intimation within the meaning of section 18 of the Ordinance, 1979, concluded that since Controller had passed an order for deposit of arrears of rent and future monthly rent on 12-2-2004, to which the respondents had readily consented and complied with within four days, there was no default on their part. It is not disputed that such order was passed on 12-2-2004 and all the respondents deposited arrears of rent and future rent on 17-2-2004. However, grievance of the petitioner, as canvassed at the hearing of the petitions, appears to be that since the respondents failed to pay up the rent within thirty days of receipt of intimation of change of ownership, they shall be deemed to have committed wilful default in payment of rent. While pressing into service this submission, learned counsel has lost sight of the glaring fact in the language of section 18 of the Ordinance 1979 to the effect that a tenant shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) subsection (2) of section 15 if the rent due is paid within thirty day from the date when the intimation should, in normal course, have reached the tenant. Now clause (ii) of subsection (2) of section 15 of the Ordinance 1979 visualises two situations namely: where the tenant has failed to pay rent in respect of the premises within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of rent or in the absence of such agreement within sixty days after the rent has become due for payment. In the present case, while the period stipulated by section 18 would expire on 30-1-2004, default within the purview of the meaning of section 15(2)(ii) of the Ordinance, 1979 would arise if he fails to pay rent within fifteen days after the expiry of the period fixed by mutual agreement between the parties or in the absence of such agreement within sixty days after the rent has become due for payment. In the instant case, it is not the case of the petitioner if there was any mutual agreement reduced to writing between the parties regulating the terms and conditions for payment of rent while the stance of the respondents is that there was no written agreement of tenancy between the parties and rather practice of the previous landlady was to collect the rent annually at landlady's choice and convenience, in respect whereof they had filed receipts acknowledging the payment of annual rent for the years 2000, 2001 and 2002 before the Controller, which fully support the stand of the respondents.
8. In this view of the matter, we are of the considered view that the conclusion arrived at by the High Court neither suffers from misreading of record nor misconception of law. In our opinion, High Court was fully justified in rectifying the wrong and upsetting the patently wrong view of the appellate Authority. Impugned judgment, therefore, is not contrary to the letter and spirit of law.
Indeed, the question of default on the part of the respondents was required to be determined on the touchstone of the language employed in section 15(2)(ii) of the Ordinance, 1979. Consequently, we are firmly of the view that no ground is made out for the grant of leave with the result that these petitions must fail and are hereby dismissed.