The appellant has challenged the order of Rent Controller, directing ejectment of the appellant both on the grounds of. Personal and bona fide requirement and default.
2. I have heard Mr. Khalid Latif, and Mr. K. B. Bhutto, learned counsel for the appellant and respondent respectively.
3. The default in the case was alleged against the appellant from June, 1977 and personal requirement was urged by the respondent landlady for one of her male child who, it was alleged, after completing his education intended to start his own business. The Rent Controller, accepted both the pleas and ordered ejectment of the appellant from the premises.
4. The learned counsel for the appellant challenged the findings of Rent Controller on both the issues. On plea of default it is urged that the respondent failed to prove that there was default on the part of the appellant inasmuch as no notice under section 13-A of the Ordinance was served on the appellant after the transfer of property in favour of respondent. It is also urged that the appellant in any case had paid the rent before institution of rent case through a cheque which covered the rent for seven months and which was deliberately not encashed by the landlady and, therefore, the allegation of default was mala fide. In so far the personal and bona fide requirement is concerned it is contended by the learned counsel that the landlady failed to establish the bona fide requirement of her son. It is claimed that the premises in occupation of the appellant is not a commercial premises whereas the requirement urged by the landlady for her son was for a commercial premises and as such no ejectment order in law could be passed against the appellant.
5. The admitted position in the case is that the property in occupation of appellant was sold to respondent by the Controller of Estate Duty through a registered Sale Deed in July, 1976 but no notice as required under section 13-A of the Ordinance was served on the appellant by the respondent. It is however not disputed that Controller of Estate Duty through their letter dated 10th July, 1976 intimated the appellant about transfer of property in favour of respondent and thereafter the appellant continued paying rent of the premises to respondent up to May, 1977. The contention of the learned counsel for the appellant is that the notice required under section 13-A of. The Ordinance is mandatory in nature and, therefore, in the absence of such a notice the appellant cannot be treated as a defaulter in payment of rent. To support his contention the learned counsel has relied upon the case of Shaikh Muhammad Hussain v. Mobina Begum (1979 CLC 42). In the above-cited case a learned Single Judge of this court (as be then was) took the view that the service of notice under section 13-A of the Ordinance by the transferee/landlord was necessary before institution of ejectment case against the tenant. The learned Judge compared the provision of section 13-A of the Ordinance under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and after referring E. A. Evan's case PLD 1964 SC 536) reached the conclusion that like section 30 of the D. P. Act the parties cannot contract out of the provision of section 13-A of the Ordinance. The learned counsel for the respondent on the other hand contended that the appellant having received intimation of transfer from the seller of property and having acted upon it was not entitled to any further notice under section 13-A of the Ordinance. The contention of the learned counsel for the respondent is not without force. In the case of Khuda Buksh v. Muhammad Yakoob 1981 SCMR 179) the object of a notice under section 13-A of the Ordinance was held to be as follows :- "7. Be that as it may on page 54 of the paper book we find that the petitioner admits paying rent to the respondent. The reason for a notice under section 13-A is to inform the tenant that the landlord has sold the property to another person so that rent could thereafter, be paid by the tenant to the new landlord. In this case knowledge of the transfer admitted by the petitioner and hence even if a notice had not been served under section 13-A, it would not stand in the way of the Court in granting the relief that it has granted."
The above observations of the Supreme Court fully supports the conten--tion of the learned counsel for the respondent and although this case did not specifically overruled the case of Shaikh Muhammad Hussain but in my humble view by implication the decision in the above case no longer holds good. In the case before me it is admitted position that after the transfer of property in favour of respondent the appellant receive intimation. Of transfer from the office of the Controller of Estate Duty and also paid rent to the respondent for about one year. In these circumstances the appellant was not entitled to any further notice under section 13-A of the Ordinance from the respondent. The Rent Controller found that the appellant has failed to prove that they offered the rent which was refused by the respondent. It was further found that the cheque which was allegedly given by the appellant to, the respondent was not proved to have been so delivered to the respondent. In final analysis the Rent Controller reached the conclusion that even if it be accepted that the rent was so tendered by cheque by the appellant it was not a valid tender as the rent was not tendered within 60 days of its becoming due as provided under section 13(2)(1) of the Ordinance, as admittedly the rent was offered for seven months together which was not a valid tender. After examining the evidence on record I am also of the view that the Rent Controller was justified in holding that the appellant had committed default in payment of rent.
6. On the plea of personal and bona fide requirement the learned counsel for the appellant contended that the premises in their occupation is not a commercial premises and, therefore, the respondent was not entitled to file the ejectment application on the ground of personal and bona fide use as the requirement alleged by the respondent for her son was for a commercial premises.
It is also contended that the respondent's son had admittedly completed his education in 1968 while according to the evidence until filing of ejectment case in 1978 he was still jobless. This evidence, according to learned counsel, could not be believed as it was admitted by the respondent's attorney in cross-examination that the younger son of the respondent was well settled in business and owned a shop nearby. It was argued that in these circumstances when the younger son of the landlady owned a shop an inference should have been drawn by the Rent Controller that the elder son of the landlady must be doing business in some other premises which was concealed. The above contentions of the learned counsel has not impressed me. The applicant in her ejectment application in paragraph one clearly stated as follows :- "(1) That the opponent is the tenant of the applicant with respect to a commercial tenement No. 4, situated on the ground floor of the building (Batwan Manzil) No. RB-6/12. Aram Bagh Quarters, Karachi, at the rent of 27.50 per month."
The reply to this paragraph was given in the written statement by the respondent as follows :- "(1) That in reply to para. No. 1, it is submitted that the premises in question were previously vested with the Controller of Estate Duty who vide his letter dated 10th July, 1976 informed about the transfer in favour of the applicant to whom the opponent started paying the rent."
In his statement before the Court the respondent's attorney categorically stated that the premises in occupation of appellant was situated in commercial area and there are shops all around this premises but the appellant are using the same as a Garrage. The Rent Controller who inspect the suit premises also found that the premises was situated in an area which was predominantly a commercial area. No question was put to the witness in cross-examination to show that the premises was a residential premises. The landlady's husband also appeared in the witness-box and fully supported the statement made by respondent's attorney with regard to personal and bona fide requirement of landlady's son Ilyas. He further stated that he owned a shop in the same building on the ground floor which is at the back of the premises occupied by the appellant. The above evidence sufficiently establishes the requirement of landlady for her son Ilyas. The contention of learned counsel that the Rent Controller should have drawn an inference from the evidence on record that landlady's son must be doing business some where and could not remain jobless from 1968 to 1978 has no substance. The landlady's son Muhammad Ilyas for whose benefit the premises was required by the respondent appeared as attorney of the landlady in witness-box but no such suggestion was given to him in cross-examination that he was doing business elsewhere. The appellant also did not produce any evidence in rebuttal. In these circum--stances, the inference now sought to be drawn by the learned counsel for the appellant from the evidence is only conjectural in nature. The learned counsel for the appellant also contended that the respondent had failed to lead any evidence to establish his bona fide inasmuch as it was not shown in evidence from where the finance will be made available to her son. The learned counsel specifically referred to an answer given by Muhammad 11yas in cross--examination to a question put to him by the appellant's counsel. It is true that landlady's son Muhammad Ilyas in his cross- examination stated that he had no money of his own but he further stated that my mother and father would provide money for me. No further suggestion made to him that his mother was not in a position to provide the finance. Similarly when father of Muhammad Ilyas appeared in evidence he was also not asked in cross--examination that he was not in a position to provide financial assistance to his son. Besides, this fact alone is not sufficient to hold that the application on the ground of personal requirement lacked bona fide. It has been held in the case of Hassan Khan v.
Mrs. Munawar Begum (PLD 1976 Kar: 932that in view of the( safeguard contained in section 13(4) of the Ordinance, the assertion of claim on oath by a landlord that be required the premises for his personal use shall be accepted by the Controller as bona fide, if such claim, or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal.The above observations in Hassan Khan's case were specifically approved by the Supreme Court in the case of Mst. Tauheed Khanam v.
Muhamm Shamshad (1980 SCMR 593The evidence of the landlord in the case before me fulfi the standard laid down in the above case and after going through it. I satisfied that Rent Controller rightly granted ejectment of appellant on ground also.
7. As a result of above discussion this appeal is dismissed but there will be no order as to costs. The appellant is allowed four months' time to vacate the premises.