The question that arises for consideration in these four Second Appeals is whether requirement of notice provided in section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 (herinafter referred to as the Ordinance) is mandatory.
2. The facts leading to these four Second Appeals briefly stated are that the four tenements in occupation of the four appellants/tenants were purchased by Ideal Life Insurance Company Limited from private persons, in October, 1965. No notice under section 13-A of the Ordinance was given to the appellant/tenants by the Ideal Life Insurance Company. Subsequently, on 24-4-1971, the Ideal Life Insurance Company filed ejectment applications under section 13 of the Ordinance against the appellant/tenants on sale ground of default in payment of rent in the Court of VII Civil Judge and Rent Controller, Karachi. During the pendency of the rent applications Ideal Life Insurance Company was nationalized in the year 1972. Consequently, the State Life Insurance Corporation of Pakistan, the successor-in-interest of the Ideal Life Insurance Company was substituted in place of the Ideal Life Insurance Company as the applicant. Before the purchase of the tenements by the Ideal Life Insurance Company in October, 1965, a new section 13-A in the .Ordinance was inserted by promulgation of West Pakistan Urban Rent Restriction (Amendment)
Ordinance, XXI of 1964, in June, 1965. It was, therefore, pleaded by the appellant/tenants that the notice under section 13-A of the Ordinance was mandatory, and since it was not served upon them, they would not be deemed to have defaulted in payment of rent and were, therefore, not liable for ejectment. The nonpayment of rent was explained stating that it was being realised in lump sum by the Rent Collector of the respondent/landlord for his own convenience and since it was not being collected in time it was not paid for some period for which the appellants/tenants are said to have defaulted in payment of rent. The learned Rent Controller brushed aside the plea of want of notice under section 13-A of the Ordinance by a short agreement that no notice under section 13-A was necessary after nationalization of the Company as the same had been notified in Government Gazette. The learned Additional District Judge in Ist Appeal was not impressed with the contention of want On 12th September, 1974, a further request was made to the F. C. M., of notice under section 13-A of the Ordinance on two-fold ground ; firstly, that want of notice under section 13-A would not affect the maintainability of the rent applications in view of the authority reported in the case of Sheikh Abdul Majeed v. Akhtar Mahmood and 2 others PLD 1974 Quetta 13, and secondly, that since the appellants/tenants continued to pay rent for some time after the purchase and subsequently, discontinued to pay the same, they cannot turn back and plead the protection of want of notice under section 13-A of the Ordinance. Aggrieved by the judgments of two Courts below the appellants/tenants have come in these four Second Appeals. Since the common questions of fact and law are involved in all the four Second Appeals, and the Courts below also disposed the four cases by one and common judgment, they are being disposed of by this common judgment. '
3. There is no dispute about the default in payment of rent on the part of the appellants/tenants.
There is also no dispute with regard to want of notice under section 13-A of the Ordinance. It is admitted that the Ideal Life Insurance Company of which the respondent/landlord is successor- on-interest did not find it necessary to serve the appellants/tenants with such a notice. Section 13- A reads as follows :- "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 purpose of clause (i) of subsection (2) of section 13, if the rent due is paid within 30 days from the date when the intimation should in the normal course have reached him."
The plain reading of this section would make it clear that the tenant shall not be deemed to have defaulted in the payment of rent if the rent due is paid within thirty days from the date when the intimation of transfer is given by the new landlord to the tenant. This intimation, it may be noticed, has to be given in a particular manner, namely, in writing by registered post. It is true that a tenant is entitled to the protection of the said Ordinance only as long as he is ready and willing to pay the rent. However, when there is a change in the title of the property, a tenant may find it difficult to ascertain as to whom he is to attorn, and as the consequences of failure to pay rent are very drastic the Legislature in its wisdom has imposed this obligation of notice under section 13-A. The object underlying this beneficial precision is clearly to enable the tenant to know whom he is to attorn and the section being a remedial provision should be construed liberally.. It is submitted by Mr. Muhammad Sadiq, the lamed counsel for the appellants that it may still be difficult for a tenant to find out to whom he is to attorn in the event, for instance of the transfer of a building by sale or otherwise. In any case, the language of the section is so plea that there is no possibility of any other interpretation and the short argument in this respect advanced by the learned Rent Controller finding the notice under section 13-A unnecessary is obviously irrelevant. Accordingly, I hold that the Ideal Life Insurance Company after the purchase of the tenements had to serve the appellants/tenants with notice under section 13-A which is mandatory.
4. 'In the case of Sheikh Abdul Majeed v. Akhtar Mahmood and 2 others, on which the learned Additional District Judge has placed reliance, the eviction of the appellant/tenant was sought on the grounds that he had failed to pay rent and that he had sublet the demised premises. Thus the eviction was sought also on ground other than the failure in payment of rent. It was, therefore, held in that case that the only result of non-compliance with the provisions of section 13-A would be that eviction case would be governed by section 13 instead by section 13-A supplemented by this section. This authority if read as a whole would make it clear that in case of noncompliance of section 13-A the rent application for eviction would not be dismissed, being non-maintainable but would be disposed of on other grounds for eviction as shown in the rent application - itself. I am fortified in this view by an earlier authority of the Supreme Court in the case of Sabu Mat v. Kika Ram alias Hamandas (1), in which case also the ejectment was sought by the petitioner in his application on the grounds of default in payment of rent, sublet and bona fide personal requirement of the landlord. Thus, the ejectment was also sought clearly on grounds other than default in payment of rent. It was observed as under :- "The language employed in section 13-A of the Ordinance makes it abundantly clear that it only deals. With one situation, namely, the question of default in payment of rent. If the prescribed notice is not given by the transferee-landlord then the tenant shall not be deemed to have defaulted in the payment of rent for the purpose of clause (i) of subsection (2) of section 13 of the Ordinance, and such default will arise only if the rent is not paid within 30 days from the date of the notice. An ejectment application placed on grounds other than that of default in the payment of rent, is not at all affected by the provisions of section 13-A."
5. As regards the other contention to the effect that notice under section 13-A was waived by conduct, since the appellants/tenants paid rent after purchase of the tenements by the respondent/landlord for some time and subsequently discontinued is also without merit. In that respect my attention has been drawn to the case of Nazar Hussain v. Astam Shah (2), wherein it was held that : " . Once there is an acknowledgement of the appellant being a tenant under Aslam Shah by paying rent to him, he cannot turn back and rely upon section 13-A in case of deliberate defaults made by him in the payment of the rent . . . . . The principle of estoppel will thus apply against the appellant."
This authority was considered in recent decision of our own High Court in the case of Sheikh Muhammad Hussain v. Mst. Mubina Begum and another (3), wherein the learned Judge discussing all its aspects and relying on the reasoning in Evan's case (4), found parallel between section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and section 13-A of the Ordinance, dissented from it, and held that the prescribed manner in which notice under section 13-A of the Ordinance was to be given viz. By registered post cannot be ignored. The learned Judge observed as under :
(1) 1973 SCMR 185 (2) PLD 1977 Lah. 210
(3) 1979 CLC 42(4) PLD 1964 SC 536 "Incidentally in the present case we are concerned with the protection given to a tenant by a Rent Act and the aforesaid observations will therefore have full application. I am further inclined to think that the language employed in section 13-A makes a notice imperative for a tenant "shall not be deemed to have defaulted in payment of rent", if the prescribed notice in writing under registered post is not given to him. In other words, there is no room for an agreement outside the statute between the transferee-landlord and the tenant, which may oblige the tenant to pay rent for the law says that the tenant shall not be deemed to be in default in the absence of a registered post notice under section 13-A. The service of notice under this section, is, therefore, not merely a formality for acquainting the tenant of the transfer of the premises not merely in the nature of a notice of allotment."
6. This view also finds support in the recent decision reported in the case of Mst. Razia Butt v.
Ghulam Raza PLD 1979 Quetta 15. The learned Judge observed as under : "The second contention raised is that a" notice under section 13-A of the Ordinance was a necessary prerequisite fur bringing an allegation of default in the payment of rent. The contention raised on behalf of the respondent is, which contention has found favour with Courts below, that as Ghulam Raza used to receive rent of the disputed premises even during the lifetime of late Wail Muhammad, there was no need for issuing of notice- in terms of section 13-A of the Ordinance."
The learned Judge went on and further observed : "Whenever there is a change of ownership by way of sale, gift, inheritance or otherwise the new owner, as distinct from a landlord under the Ordinance. Has to give notice in terms of .This section.
In case of failure to do so the tenant is not to be deemed to have defaulted in the payment of rent in terms of section 13(2)(i) of the Ordinance. This is a plenary rule and must be followed."
7. Accordingly, the contention on the basis of which the Rent Controller and the learned Additional District Judge in Ist Appeal decided the cases against the appellants/tenants have no merit. Mr. Khuda Bux Umerani, the learned counsel for the respondents/landlord for the aforesaid reasons has very rightly conceded that he is unable to rebut the legal position stated above. The irresistible conclusion, therefore, would be that the requirement of notice provided in section 13-A of the Ordinance is mandatory.
8. The result, therefore, is that the judgments of the two Courts below are set aside and the appeals are allowed. In the circumstances of the case, there will be no order as to costs.