Mst. Zulekha Begum, the landlady (hereinafter referred l to as "the deceased" for the sake of convenience) instituted ejectment Case \No. 537 of 1972 in the Court of XVI Civil Judge and Rent Controller, Karachi, against the respondent under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, for eviction from a ground floor shop premises bearing No. 897/JM 4, Clayton Road, Karachi, on the grounds of (i) non-payment of rent from 1-5-1971 to 29-2-1972 ; (ii) impairing the value and utility of the premises by the respondent ; (iii) requirement of the premises by the deceased for her personal and bona fide needs ; and (iv) causing nuisance and inconvenience to the occupant of building. By order dated 28-5-1975, the Rent Controller decided all the issues against the deceased and dismissed the application. On appeal the Additional District Judge, Karachi, on 6-11-1975, confirmed the findings of Rent Controller and maintained the order dismissing the ejectment application of the deceased. The deceased then filed the present appeal in this Court on 9-12-1975 challenging the above order of Ist Appellate Authority dated 6-11- 1975, however, during pendency of this appeal she died on 26-7-1977 and his two sons and daughter were substituted in her place as appellants on 9-2-1978.
2. On 19-4-1980, when this appeal came up for regular hearing, I heard only Mr. A. M. Mokarim, Advocate for the appellant. The respondent and his counsel remained absent.
3. Mr. Mokarim, the learned counsel for the appellant, at the hearing of appeal gave up the grounds of impairing the value and utility of the premises by respondent and causing of inconvenience and nuisance to the occupants of building and confined his submissions only to the issues of default and personal and bona fide needs of the deceased.
4. The learned counsel assailed the findings of the two courts below on the issue of personal requirement of the deceased on the ground of mis--reading of evidence. According to learned counsel the statement of the land--lady's son who was examined before the Rent Controller, fully demonstrated the personal and bona fide requirement of the deceased. The relevant portion of the statement relied upon by the appellant is as follows :- "The applicant requires the premises in question for her own bona fide use and she will do some business through me in the disputed premises."
5. The two Courts below did not consider the above statement of land--lady's son was sufficient proof of the personal and bona fide need of the de--ceased. In order to appreciate the reasons for not accepting the statement as sufficient proof of the issue of personal and bona fide requirement of the deceas--ed, it is necessary to state here those facts which were taken into account by the Courts below. The premises for which application for ejectment was insti--tuted by the ,deceased was originally owned by her husband Hamid A.I Qureshi. The said Hamid A.I . Qureshi prior. To the institution of ejectmentt case by the deceased, had also applied for ejectment of the respondent from the premises on the grounds of personal and bona fide needs. The said application was rejected by the Rent Controller and the order was confirmed in appeal by the District Judge on 23- 1-1971 in II Appeal No. 190 of 1969. It was further urged that the second appeal in this Court was also failed but a copy thereof has not been produced on record. The property was finally transferred by Hamid A.I Qureshi in favour of the deceased in lieu of her dower debt by a registered document on 7-4-1971. The deceased after transfer of the property in her favour sent a registered A/D notice intimating the fact of transfer in her favour to the respondent on 3-8-1971. Ejectment application No. 537 of 1972 was filed by the deceased against the respondent before the Rent Controller on 9- 3-1972. It was in this background of facts that the two Courts below took the view that in order to prove the personal and bona fide requirement and good faith on the part of the deceased she should have examined herself in the case or produced equally reliable evidence. In my opinion, the view taken by the Courts below, in the circumstances of the case, cannot be described as unsustainable or perverse so as to warrant an inter--ference in second appeal on the findings of fact by this Court. In my view there was no misreading of evidence as contended by the learned counsel for appellant. Disbelieving a piece of evidence or considering the evidence on record in the case as insufficient to establish a particular ground cannot legitimately be described as misreading of evidence. There is yet another ripe t[c of the case on which the ground of personal and bona fide requirement of the deceased cannot succeed. The application for ejectment was brought on the allegation that the respondent was desirous of running some business in the premises occupied by the respondent of her own. The appellant during the pendency of this appeal died in the year 1977 and the present appellants were substituted in her place in the appeal. The personal and bona fide requirement put forth by the deceased, in my view, cannot be held to be the personal and bona fide requirement of the present appellants in the circum-- stances of the case. There is nothing in the evidence to show that the deceased wanted to acquire the premises for a business to be run by the present appellants. I am accordingly of the view that the ground of personal and bona fide requirement as put forth in the application cannot be availed ~s of by the present appellants after the death of the deceased. This point was noticed by me while I was dictating the judgment in the case after I had reserved orders. Since the appellant's counsel had not made any submissions on this point I directed rehearing of the appeal. Mr. A. x'. M.
Mokarim, the learned counsel for the appellants appeared before me at the rehearing of the appeal but was unable to satisfy me as to holy the present appellants, who are the sons and daughters of the deceased, could press this appeal on the per--sonal and bona fide requirement put forth by the deceased. All that the learned counsel submitted is that the deceased's son who was examined in the case was earning a very small salary and would run the business himself and that there is no conflict of interest between the requirement of present appellants and that of the deceased. The application for eviction filed by the deceased was, as earlier pointed out by me, on the ground of her personal requirement. The Rent Controller and the 1st Appellate Authority, therefore, had no occasion to examine the personal and bona fide requirements of the present appellants and as such it is not open to argument that the requirement of the deceased should be held to be the requirement of present appellants. It will however, be open to the present appellants to establish independently their personal and bona fide requirement of the shop, if any, in a properly instituted fresh pro--ceedings before the Controller. I accordingly hold that upon the death of the deceased the appeal in so far as it relates to the ground of personal and bona fide requirement of the deceased, cannot be maintained by the present appellants.
6. On the issue of default the two Courts below held that after transfer of the premises in favour of the deceased notice under section 13-A of the Ordinance was not served upon the respondent and as such in that circum--stances deposit of rent by the respondent in Court in the name of land-- lady's husband Hamid A.I Qureshi (the previous landlord) in the concluded case cannot be considered as wilful default on the part of the respondent. The admitted position in the case is that the respondent had been depositing rent in Court in the earlier case which was instituted by Hamid A.I Qureshi against the respondent and that withdrawal of rent from the said case were being made from time to time by the said Hamid A.I Qureshi. Mr. Mokarim, learned counsel for the appellants, however, contended before me that the requirements of section 13-A of the Ordinance are only to the effect, that a notice by the new owner intimating the fact of transfer to the tenant is to be posted and if after posting of such notice the tenant tenders all the arrears of rent due within 30 days of the date when the intimation in the normal course would have reached the tenant, he shall not be treated as a defaulter. It is contended that under section 13-A of the Ordinance it is not the service of the notice, which is important but the fact of posting of the notice and the acquisition of knowledge by the tenant of such transfer which is more relevant. On these premises it is contended that the address given in the envelop was admitted by the respondent as correct and as such in spite of the endorsement of the postal authorities on the envelop that the Courts below should have held that the respondent acquired knowledge of the transfer in favour of the appellant and accordingly it should have been held that the respondent committed default in payment of rent as no rent was tendered to the new landlord within 30 days of the acquisition of such knowledge. The date of acquisition of the knowledge by the respondent of the transfer, according to the learned counsel, should be construed the date on which the postal authorities made the aforesaid endorsement on the envelop. The argument has no merit. The provision of sending of a notice to the tenant by the new landlord contained in section 13-A of the Ordinance in the event of the transfer of a property shall be meaningless if it is held that only posting of notice is to be proved and that in the contemplation of the law, the service of the notice shall be deemed to have been effected within the period in which the intimation would have reached the tenant in normal course. I am afraid such interpretation cannot be placed on the language of the section. The intention behind enacting this provision of law is to acquaint the tenant with the fact of transfer of the property in favour of the new landlord and imposing the consequent obligation for payment of arrears if any and the future rents upon him within the period specified in the said section. The period of 3 days specified in the said section will start only from the date such not is served upon the tenant. However, in cases where there is a dispute before the Court or the authority with regard to the precise date of service of notice and it is not possible on the evidence on record to fix the exact date of service of such notice in such circumstances alone the period of 30 days is to be counted from the date when the notice in the normal course would have reached the tenant. The intention behind the words "the intimation should in the normal course have reached him" could not be construed as meaning that the service of notice is not an important aspect contemplated in this section. To me it appears to be the only possible intention behind section 13-A to follow. In the present case on the face of the endorsement of the postal authorities on the envelop it is not possible to hold that the respondent acquired knowledge of the date of transfer in favour of the appel--lant and consequently the default had taken place on the part of the respon--dent in payment of the arrears and the monthly rents due. The mere fact that the respondent admitted in the evidence that the address given on the envelop was correct cannot give rise to the inference that the respondent acquired knowledge of transfer of property in favour of the appellant. The learned counsel for the appellant, in support of his contention relied upon the case of Bashir Ahmad v. Mumtaz Khan PLD 1962 Lah. 126The facts of the case cited by the learned counsel have no application on the facis of the present case. In the Lahore case referred to above, the registered notice came back with the endorse--ment of the postal authorities "Refused" and it was proved that the notice was correctly addressed and posted. In these circumstances the Court held that it was not necessary to examine the postal peon to prove the endorsement. The endorsement "Refused" in those circumstances was considered by the Court as amounting to service of the notice on the addressee. I fail to see how the endorsement "Refused" could be equivalent of "Addressee not found on the address and therefore it is returned". I am of the view that in the circumstances of the case the Courts below were justified in taking the view that no default was committed by the respondent. No other point was raised.
7. The appeal is accordingly dismissed but there will be no order as to costs as the respondent remained absent.