' This Second Appeal and another Second Appeal No, 370 of 1976, filed under section 15 (4) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance), are directed against the order dated 23rd August, 1976, passed in Rent Appeal No, 43 of 1976. By.The 1st Additional District Judge, Karachi.
2. The facts giving rise to these appeals briefly stated are as follows :--
3. One Syed Nasiruddin, who was the owner and landlord of a residential premises bearing No, 145- D, Block 2, P.E.CH. Society, Karachi (hereinafter called "the premises), rented out the premises to Umar Jan who is arrayed as respondent No. 1 to this appeal and who is appellant in Second Appeal No, 370 of 1976 (hereinafter called "the tenant") at a monthly rent of Rs, 650 exclusive of gas, water and conservancy charges.
4. On 23rd March, 1972, Syed Nasiruddin filed an application under section 13 of the Ordinance for eviction of the tenant on the grounds of default in payment of rent for the period commencing from 16th January, 1971 to 15th March, 1972, subletting, and requirement of the premises for use and occupation of his son Syed Hilaluddin.
5. The tenant filed his written statement wherein he denied all the grounds. Thereafter, on 29th September, 1974, the counsel for the parties filed a consent statement of rent account on the basis whereof the Controller passed an order under section 13 (6) directing the tenant to deposit the arrears of rent on the dates mentioned in the order.
6. During the pendency of the proceedings Syed Nasiruddin sold and transferred the property to Mrs. Parveen Hilaluddin, his daughter-in-law, by a deed of sale registered on 6th July, 1973.
Consequently, an application was filed on her behalf on 27th September, 1974, for being joined as co-applicant. In the affidavit filed in support of the application it was stated by her that she had already given notice dated 20th July, 1974 under section 13-A of the Ordinance to the tenant informing him of the transfer of ownership in her favour and requiring him to pay all the arrears of rent as well as future rent to her at her residential address i. e. 30-E, Mohammad Ali Housing Society, Karachi. This application was not opposed by the tenant. In fact the Advocate for the tenant made an endorsement on the application that he had no objection to the grant of the application. Therefore, the. Controller by the order passed on the same day granted this application. After the amendment of the pleading by the parties, following issues were framed by the Controller: "(1) Whether the Opponent has committed wilful default in payment of rent, as alleged'
(2) Whether the premises in question or any part thereof was snblet by the Opponent to any person ?
(3) Whether the applicants need the premises in question for their bona fide personal use ?
(4) To what relief, if any, the applicants are entitled" ?
On behalf of the landlords, the evidence of Syed Hilaluddin was produced. In rebuttal the tenant examined himself.
8. The learned Controller, by order dated 9th January, 1976, decided all the issues against the landlord except Issue No, (3) which was not pressed on behalf of the landlord, and consequently dismissed the application of the landlords with costs.
9. Aggrieved by this order, the landlords filed an appeal in the District Court, which was heard by Mr. Mohammad Yousaf Memon, 1st Additional District Judge, Karachi, who confirmed the decision of the Controller on the first issue holding that since he had decided the issue as to the maintainability of the application in favour of the tenant no finding can be given on the remaining issues as there is no relationship of landlord and tenant between the parties. He however, observed : "I am of the view that as the applicant No. 1 Nasiruddin has not been given the chance to prove his case, therefore, it will be in the interest of justice to allow him such opportunity. Hence the impugned order of the Lower Court is set aside and the case is remanded back to the Lower Court for further proceedings from the stage of the case where the issues were framed in the original application of Applicant No 1."
' Aggrieved by the aforesaid order both Mrs. Parveen Hilaluddin and the tenant have tiled separate appeals now under consideration. Mrs. Parveen Hilaluddin is aggrieved by the decision on the First issue and the tenant is aggrieved by the orden of remand of the case.
11. I have heard Mr. Mohammad Ali Sayed, Advocate for the appellant, Mrs. Parveen Hilaluddin in Second Appeal No, 310 of 1976 and respondent in Second Appeal No, 370 of 1976 and Mr. Khaliq Humayum, Advocate for the respondent in Second Appeal No, 310 of 1976 and appellant in Second Appeal No, 370 of 1976 and have gone through the evidence and record.
12. It is submitted by Mr. Muhammad Ali Sayeed that section 13-A of the Ordinance has had no application to the facts of this case and therefore the application could not have been dismissed for non-compliance of the provisions thereof. Alternatively, it is submitted that notice under section 13-A of the Ordinance, was served and in giving the finding on this issue the Controller and the Lower Appellate Court have failed to consider, the contents of the affidavit which was filed in support of the application filed by Mrs. Parveen Hilaluddin. Before I consider the submissions, it may be useful to produce the last three paragraphs of the order of Additional District Judge, impugned before me in the two appeals : "(6) Regarding the Issue No. 1 both applicant No, 2 and the opponent had made certain averments in the pleadings viz. Amended application and amended written statement and also in their evidence. The applicant No, 2 in iris amended application in para. No. 1 has only stated that she has been joined as applicant in the application. Nowhere in the entire application she had even made the mention of a notice purported to be under section 13-A of the West Pakistan Rent Restriction Ordinance but in her evidence she has disclosed that she had actually given notice under section 13-A to the opponent by a registered envelope. She has produced copy of the notice dated 20th July, 1974, Exh. A/3 and also a despatch receipt Exh. A/4, that this notice was despatched to the addressee Omer Jan. The opponent has vehemently denied the receipt of the notice under section 13-A of the Ordinance, both in his amended written statement and in the evidence. The opponent has further made stress that in absence of the notice relationship of the landlord and tenant between the applicant No, 2 and the Opponent is not established. Section 13A of the Ordinance puts statutory duty on the new landlord to intimate to the tenant regarding the transfer of the property in his favour. Since the opponent in his amended written statement denied vehemently the receipt of the notice, thus the burden heavily lies on the applicant to prove that such notice has been received by the opponent. Applicant No, 2 has not produced acknowledgment receipt duly signed by the opponent. In absence of such acknowledgment receipt the applicant No, 2 was under obligation to legally prove the service on the tenant which he has failed to do so.
(7) In the light of my above discussion, issue regarding maintainability of the application stands decided in favour of the opponent, as it can be easily said that applicant No, 2 has failed to prove herself to be the landlord of the respondent. The applicant No. 1 has failed to come in the Court to prove his own case against the opponent. It may be due to misrepresentation that even in his absence his case could be proved through applicant No,
2. This is not the sound position in which the applicant No, I has acted.
(8) Since the applicant No, 2 has failed to establish his case for want of legal notice, therefore, no finding can be given on the remaining issues as there is no relationship of landlord and tenant between the parties. However, I am of the view that as the applicant No. 1 Nasiruddin has not been given the chance to prove his case, therefore it will be in the interest of justice to allow him such opportunity. Hence the impugned order of the Lower Court is set aside and the case is remanded back to the Lower Court for further proceedings from the stage of the case where the issues were framed in the original application of applicant No 1."
13. It may also be convenient if the provisions of section 13-A of the Ordinance are also quoted herein below :- "13-A. 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, whatever, 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 subsection (2) of section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him."
' From the above-quoted provision it is obvious that on transfer of ownership of property the transferee is required to give notice to the tenant to pay rent due within 30 days from the date when the intimation should in the normal course have reached him, and if he pays the same, he cannot be evicted on that ground. But the provisions contain no bar in continuing with the application already tiled in respect of the default committed before the transfer of the property.
These provisions therefore could not have been applied to a case which was already pending before c the Controller in respect of default in payment of the rent already committed before the transfer of the ownership of the property. If any precedent is needed reference may be had to Syed Muhammad Alt and another v. Muhammad Jamil Ahmed (1).
14. There is yet another reason and if it would have been taken into consideration the application would not have been dismissed for noncompliance of the provisions of section 13(A) of the Ordinance becuase the application filed by the landlord was not only on the ground of default committed but was also on the two other grounds namely, subletting and personal bona fide need, out of which last ground was not pressed by the appellant as the same had become infructuous, and therefor the appeal should not have been dismissed for section 13(A) of the D Ordinance relates to only to the ground of default in payment of rent. Here 1 may refer to the observations of Mr. Anwarul Haq, C. J. In Sabu La! v. Kika Ram alias Hemon Das (2)
"The language employed in section 13(a) of the Ordinance makes it abundantly clear, as observed by the High Court, that it only deals with one situation namely, the question of default in the 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 (0 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, In or view, the High Court was right in observing that 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."
15. Now, taking up the submissions that the learned Controller and the lower Court failed to consider material piece of evidence namely, the contents of the affidavit of Mrs. Parveen Hilaluddin, which was filed by her in support of the application for bringing her on record as applicant No, 2 wherein she clearly stated that she had given notice dated 20th July, 1976 under section 13-A of the Ordinance regarding the transfer of ownership in her favour and had also annexed a copy of the notice to the -.1ffida%it. It was, therefore, argued that if the tenant had not received the notice he would have denied the factum of having received the notice at the time when the application for bringing Mrs. Parveen Hilaluddin on record was filed and would not have consented to the application at least without making any reservation on that account. The learned Controller has not considered the fact that the notice was sent by registered post and the receipt (Exh. A-4) was produced before him. The learned 1st Additional District Judge has stated in paragraph 6 of the order as mentioned already that "nowhere in the entire application {{FOOT NOTE}}
(1) PLD 1976 Kar. 820 (2) 1973 SCM R 185 {{FOOT NOTE}} she had even made the mention of a notice purported to be under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 but in her evidence she has disclosed that she had factually given a notice under section 13-A to the Opponent by registered envelope".
16. It is obvious that the learned Additional District Judge has ignored the contents of paragraph 3 of the Affidavit, wherein she has clearly stated that she had given notice, therefore, tenant's bare denial in the face of postal receipt (Exh. 4-A) and the absence of any denial of the assertion made by the appellant in her affidavit at the earliest opportunity, should not have been accepted. It was submitted by Mr. Khaliq Humayun that no acknowledgement receipt of the notice ha been produced by the landlords but it is now common experience that postal acknowledgment receipt seldom reaches sender. It was also so observed by Mushtak Hussain, J. In Khuda Bux v. Muhammad Yaqoob, etc. (1). I may here quote the relevant observation which is as follows :- "In fact it is very seldom that such acknowledgements reach the sender and it is a matter of every day occurrence."
17. It was not even suggested by the tenant that the address given in the notice was in any manner, incorrect or that there was any reason for which the notice would not have reached her. There is also presumption under section 114 that when a notice is addressed on correct address of the addressee and sent by post it is delivered to the addressee unless the usual course of the post was interrupted by disturbance which was not even pleaded.
18. Now, on the facts of this case and preponderance of evidence the statement of Mrs. Parveen Hilaluddin that she had sent the notice should have been accepted, for it is not even the case of the tenant or any one on his behalf that the notice could not have been delivered to him for some reasons.
19. I therefore, set aside the order of the learned Additional District Judge and remand the case to 1st Additional District Judge, Karachi, to dispose of the appeal on merits and in accordance with law. However, I would direct the learned Additional District Judge to dispose of the appeal within three months from the date of receipt of R. And P. As the application was filed in 1972 and these appeals were filed in the year 1976.
' In view of the above order Second Appeal No, 370 of 1976 also stands disposed of. {{FOOT NOTE}}
(I) 1981 SCMR 179 {{FOOT NOTE}}