The appellants are legal representatives of Muhammad Ashfaque son of Muhammad Ibrahim who had filed the first rent appeal against the order of the joint Civil Judge and Rent Controller, dated 12-6-1976 in Rent Application No. 146 of 1971 striking of his defence and ejecting him from the premises which form part of property No. C. S. No. 13/187-188; Shahi Bazar, Sukkur. The 1st Additional District Judge, Sukkur, in his judgment dated 12-6-1976, upheld the aforesaid order -of the Rent Controller dated 12-6-1976.
2. The facts of the case leading to the filing of the instant appeal are as under
3. Muhammad Ashfaque, purchased the property described above from Settlement Department but subsequently the transfer was cancelled as the Hindu owner Lunidomal was declared as non- evacuee. Muhammad Ashfaque who was in possession of the property at the time of the cancellation of transfer, with the consent of Lunidomal became his tenant on a monthly rent of Rs.10. It is the case of the appellants that the building was declared dangerous and notice was given by the Municipality. Muhammad Ashfaque with the consent of the Hindu owner had reconstructed it at the cost of Rs.4,167 on the understanding that he would continue as tenant for as long as he liked and in case he left the premises he could take the material of the superstructure. Be that as it may, it is admitted position that Lunidomal sold the property to Muhammad Yakub by a registered sale-deed dated 2-12-1969.
4. Muhammad Yakub, filed Rent Application No. 146 of 1971 on 8-11-1971, for ejectment of Muhammad Ashfaque who also filed Suit No. 74 of 1971 against Lunidomal and Muhammad Yakub, for declaration that the construction on the property belonged to him. The suit was dismissed on 3- 6-1976 and Appeal No. 41 of 1976 filed by Muhammad Ashfaque was also dismissed.
5. Rent Application No. 146 of 1971 which was pending before the Rent Controller for ejectment of Muhammad Ashfaque had mentioned as grounds not only default but also damage to property, nuisance and personal requirement. Muhammad Ashfaque had raised the preliminary objection that since no notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance,1959 (VI of 1959) hereinafter referred to as the Ordinance) had been given the ejectment application was not maintainable. The learned Rent Controller, ferried such preliminary issue and by his order dated 20-6-1972 decided that the ejectment application which was also on other grounds beside the ground of default was maintainable. C. M. A. No. 12 of 1972 filed against the aforesaid order by Muhammad Ashfaque before the III Additional District Judge, was also dismissed.
6. On 30-7-1974 the Rent Controller, passed tentative rent order which reads as under :- "The applicant's Advocate has filed rent statement showing the rate of rent at Rs.10 p.m. This rate of rent has been admitted by the opponent in his written statement in para 2. I, therefore, fix the rate of rent at Rs.10 and direct the opponent to deposit the arrears of rent before 15th September, 1974.
Further he is directed to deposit the future rent at the rate of Rs.10 p.m. Before 15th of each month.
The opponent has to deposit the rent of the month of August, 1974 before 15th September, 1974. In case of default his defence will be struck of."
7. Against the order of Rent Controller, quoted above Muhammad Ashfaque, preferred appeal being Appeal No. 43 of 1974. The payment of rent was stayed by the Appellate Court on furnishing of security. The appeal was, however, dismissed in default in November, 1975 and the R and P which was sent back was received in the Court of Rent Controller on 22-1-1976.
8. Application under section 13 (6) of the Ordinance was filed by the respondent herein on 4-5-1976 for striking of defence, a copy of which was served on Muhammad Ashfaque who filed objections on 7-6-1976 and the impugned order striking of defence was passed on 12-6-1976.
9. The main contentions on behalf of the appellants are as under :-
(i) In the absence of notice under section 13-A of the Ordinance there was no justification for passing order of deposit of rent and in consequence striking of the defence.
(ii) In any case since during pendency of appeal against the order of deposit of rent wasstayed and security as ordered by the appellate Court had been furnished and further since appeal was dismissed in default without knowledge of the appellant and no notice with regard to receipt of R and P by the Rent Controller, was given, a reasonable time ought to have been granted for deposit of rent and the party should not have been punished for mistake of Court.
10. With regard to contention No. (1) above, in view of the decision of the Supreme Court in Sabu Mal v. Kikaram alias Hemandas (1973 SCMR 185) in which it was inter alia observed that non-service of notice by transferee landlord in terms of section 13-A has no effect on the maintainability of ejectment application on grounds other than that of default in payment of rent, the decision of the lower Courts with regard to maintainability of the ejectment application has not been challenged.
11. It goes without saying that in view of the facts stated including the reference with regard to offer of rent in the written statement and the legal position that transferee from the original landlord is covered by the definition of "Landlord" as given in clause (c) of section 2 of the Ordinance, the relationship of landlord and tenant does exist between the parties. It is, however, argued by Mr. S. Rehman's Ali Naqvi, the learned counsel for the appellants that due to the failure to give notice under section 13-A the penalty of inability to recover arrears of rent and future rent attaches to the new landlord till he observes the provision with regard to issue of notice in the prescribed mode and therefore even though the application for ejectment on grounds other than default is maintainable no order for deposit of rent under section 13 (6) of the Ordinance should have been passed and consequently there could be no question of striking of defence due to failure to deposit rent which could not be considered as rent due. I am unable to accept the contention as correct for the following reasons :--
12. The word "due" as used in subsections (2) and (6) of section 13 of the Ordinance, means the amount of rent which has matured or for which the tenant is in arrears under section 13(6). A tenant against whom an application for ejectment has been filed cannot be allowed to remain in possession of the demised property without payment of rent and arrears any, during the continuance of the proceedings and the mere fact that besides the ground of default, there are other grounds provided in section 13 for ejectment, militates against the argument that in applications for ejectment on grounds other than default the Controller is debarred from passing tentative or final order for determination of the amount of rent due from the tenant under subsection (6) of section 13. The provision of subsection (6 in section 13 was in existence before section 13-A was added by Ordinance XXI of 1965. In my humble opinion section 13-A only provides an additional safeguard to the tenant but could not have been intended as a penalty for forfeiture of rent due.
13. In Sabumal v. Kikaram alias Hemandas, it was observed as under :- "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 the, tenant shall not be deemed to have defaulted in the payment of rent for the purpose of clause (1) 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 notice."
14. In Sh. Muhammad Hussain v. Mst. Mubina Begum and another (1979 CLC 42) it was observed that notwithstanding the absence of notice contemplated by section 13-A on devolution of interest, relationship of landlord and tenant would come into existence between the transferee landlord and the existing tenant and only question would be whether or not there would be default in payment of rent by the tenant entitling the landlord to get him ejected. The right to the rent cannot be considered as taken away since if that had been the intention of the Legislature there would have been express provision for taking away such a valuable right.
15. There is authoritative decision of the Supreme Court in Mst. Mahmooda Begum v. Mst. Mahmuda Jan (1973 SCMR 131) on the point that direction to deposit past and future rent has to be made in all proceedings under sec--tion 13(6). It was observed as under :-- "The opening words of subsection (6) of section 13 of the Ordinance are "in proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the fifteenth day of each month the monthly rent due from him." It will be seen that the direction to deposit the arrears of rent as well as the future rent has to be made in all proceedings under this section and. Not merely in proceedings initiated on the ground of default in payment of rent. Ejectment on the ground of personal occupation is dealt with in subsection (3) of section 13 of the Ordinance and these proceedings are, therefore, covered by subsection (6). It cannot, therefore, be argued that a direction under subsection (6) of section 13 of the Ordinance cannot be. Made in proceedings initiated on the ground of personal use of landlord."
(2)
16. Mr. S. Rehman's Ali Naqvi, has argued that the matter should be considered in the light of the observations in the decisions reported in 1979 C L ('. 42 and 1979 CLC 143. In the decision of the Sind High Court, the reference is to observations in paragraph No. 7 of the judgment which reads as under :- "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 argument 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 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, nor merely in the nature of a notice of allotment."
The observations of the learned Judge should be read in the context of the question for consideration in that case, as to whether the requirement of notice in section 13-A of the Ordinance was mandatory when the appellant landlord sought eviction of the tenants on sole ground of non- payment of rent. As already stated in the instant case the position is altogether different as the eviction on grounds other than default is in consideration and the question involved is whether the Rent Controller could pass order under B section 13 (6) with regard to rent due and future rent. As already discussed the mandatory provisions of section 13-A are additional protection to a tenant from ejectment proceedings based on default but do not absolve him from liability to pay rent.
17. In the decision reported in 1979 CLC 143, the direction by Rent Controller was not to deposit arrears of rent and future rent in his office but to pay future rent to landlord which was considered not to be an order in terms of section 13(6). Reliance is placed on the decision of Supreme Court, reported in 1973 SCMR 131 (already referred to above) and in which it was further observed that it is obligatory for Rent Controller to dirt tenant to deposit arrears and future rent in every case for ejectment regardless of pleas raised.
18. With regard to contention No. (it) the factual position as it appears from the record is as under
19. The order of Rent Controller, directing the deposit of rent has been reproduced to extenso above, and under it, the tenant was directed to deposit, arrears of rent before 15-9-197.9, he was given 45 days time for the purpose and besides he was directed to deposit future rent before 15th day of each month and rent of month of August, 1974 had to be deposited by 15th September. 1974.
Against the order Appeal No. 43/74 was preferred which was dismissed and R & P sent back on 22- 1-1976. The application for striking out the defence was made on 4-5-1976. In the impugned order dated 12-6-1974 the learned Rent Controller, rightly held that the security furnished before the District Judge, Sukkur, stood discharged after the appeal was dismissed. He relied upon decisions reported in PLD 1971 SC 700, 1972 SCMR 428 and PLD 1963 Lab. 489, on the point that the Controller cannot extend time granted by him. Again he rightly held that since appeal was dismissed on 7-1-1976, even if 45 days time is granted to the tenant from the date of dismissal of appeal, the extended time had also lapsed.
20. It is apparent that the appellants had notice of application under section 13(6) for striking of the defence and had filed objections claiming to have complied with the order by furnishing security before the appellate Court. The appellate Court gave the finding that the appellant was negligent in prosecuting his defence to keep himself fully informed of the order passed against him. At no time the arrears of rent were deposited in Court and with regard to the future rent in view of the weight of authorities cited even the Rent Controller could not have extended the time.
21. The appellants cannot be heard to say that no adequate opportunity to show cause for failure to deposit the rent in accordance with the order of the Rent Controller was given to them as it is admitted position that notice with regard to the application under section 13(6) of the Ordinance was given and objections had been filed. In Javaid Iqbal v. Rana Muzaffar Khan (1976 SCMR 229) it was held that petitioner tenant being negligent in prosecution of his defence by failing to keep himself fully informed of order passed against him, default in payment of rent could not be considered unavoidable or beyond his control. In the same decision of the Supreme Court it was observed that opportunity to adduce evidence before striking of his defence need not necessarily be always given to tenant. Requirement being to give fair opportunity to him to explain default on his part. Similarly, in the Municipal Committee, Gujranwala v. Barkat Bibi and S others (1979 SCMR 264) non-compliance of Rent Controller's order owing to petitioners own negligence which he could have avoided had he acted with due diligence was considered to be wilful default.
22, - Under the circumstances, I find no substance in the appeal which is dismissed with costs. The appellants are hereby directed to hand over the vacant possession of the premises within one month from the date of this judgment.