1. ' In this appeal under section 15 (4) of the Urban Rent Restriction Ordinance, 1959 (herein referred to as the "Ordinance") chalianges the decision of the Additional District Judge, Karachi dated 9th December, 1978 in Rent Appeal No, 191/1975; whereby the order of the Ill Senior Civil Judge and Rent Controller, Karachi dated 14th March, 1975, dismissing the application for ejectment, was maintained. The facts leading to the fling of this appeal are as under:- ' Building No, 46/S. B. 4, Saddar, Karachi was owned by Mst. Shahzadi, who had rented out the ground floor of the same to Khushi Muhammad at the rental of Rs, 12 per month. Mst. Shahzadi died in 1962 and the property was inherited by her husband appellant Muhammad Ismail Khan and five children of the marriage, who were minors.
2. ' Khushi Muhammad, who was the original tenant in respect of the ground floor of the building died in 1965 and respondent, Khurshid Bibi, his widow continued in possession of the tenement on the ground floor.
3. ' On 16th February, 1971, the appellant filed application under section 13 of the Ordinance for ejectment of the respondent on the ground of default. It was his case that even during the lifetime of Khushi Muhammad the rent was never paid regularly but since his death the respondent had persistently refused to pay him rent on various pretexts up to the date of filing of the application for ejectment. Explaining the delay in filing the ejectment application, the appellant stated that he had desisted from taking legal proceedings against the respondent on humitarian considerations, she being a widow, but since she herself had filed a vexatious suit against him containing false, mala fide and mischievous allegations, being Suit No, 197/7i, of which he was served with notice on 13-2- 1971, he had considered it proper to file the ejectment application three days thereafter.-- ' The respondent filed written-statement, in which she took the pleas that even the appellant himself had admitted that was only joint owner of the property and since she did not know who were the landlords and owners and further she did not know the extent of the proprietary rights of any one of them in the demised premises and tnany persons had claimed rent but no-one was ready to give receipt of rent, she could not pay the same. She had also raised the plea that the appellant had refused to give valid receipts for the rent and, therefore. Had refused to accept the rent tendered by her, making it necessary for her to file Suit No, 197/71 for declaration and injunction.
4. ' The learned Countroller on the pleadings of the parties considered the following issues:- (1)Whether the opponent has committed willful default in the payment of rent?
5. (2)What should the order be?
6. ' He gave finding with regard to issue No, 1 in the negative and, therefore, dismissed the application for ejectment.
7. ' Against the aforesaid decision of the learned Rent Controller dated 14-3-1975, the appellant filed his First Appeal, which was incidentally heard by the Additional District Judge, Karachi, who did not find any justification to interfere with the findings of the Rent Controller and dismissed the appeal by his judgment dated 9th December, 1978, against which the instant Second Appeal has been filed.
8. ' In his order, dated 14-3-1975, the learned III Senior Civil Judge and Controller, Karachi he'd that notice under section 13-A of the Ordinance, which is mandatory, had not been given and, rherefore, the respondent had no intimation regarding the change of ownership and she could not be deemed to have committed wilful default in the payment of rent. He further held that it was immaterial whether the tenant knew about the change of ownership or even had paid rent as even if such action on the part of the tenant is considered to be in nature of contract, the same would be void being against the legal provisions and, therefore, against public policy.
9. ' The learned Additional District Judge as First Appellate Authority dismissed the appeal mainly on the ground that no notice had been given to the tenant with regard to the appellant being landlord and further that the claim for arrears was vague as no specific dates had been given to show the peried of default. Incidentally the First Appeallate Court did not decide with regard to the applicability of Section 13-A of the Ordinance.
10. ' I have perused the record and also heard the arguments of the learned counsel for the parties. A perusal of the record of proceeding before the III Senior Civil Judge First Class and Rent Controller, Karachi makes it clear that default was alleged since the death of original tenant Khushi Muhammad. Paragraph 4 of the application for ejectment reads as under :- "That since the death of late Khushi Muhammad the opponent has been persistantly refusing to pay rent to the applicant on various pretexts and to this date she has not paid rent to the applicant for about last 5 years."
11. It is admitted position that Khushi Muhammad died in 1965 though n actual date of his death has been mentioned by any of the parties. Th expression used denote the peried of default in paragraph 4 quoted above "about last 5 years" which again is vague. Calculating the peried of 5 year from 16th February, 1971, when the application was filed, the default would A be from 15th February, 1966 but as already stated Khushi Muhammad I shown to have died in the year 1965. The learned Additional District Judge, Karachi, therefore, was justified in giving the finding that the allegations o the appellant were very ambiguous and there was no evidence on record with regard to the actual period of default. On the other hand, it is contended by Mr. Obaidur Rehman, the learned counsel for the appellant that even if the actual period of default has not been mentioned, there is admitted position that there was default and further the tenancy and rate of rent is also admitted. The fact that the respondent had filed suit against the appellant would further show that she had admitted that he was at least one of the landlords. The main point involved in this appeal is, therefore, whether notice under section B 13-A of the Ordinance was mandatory and in view of the admitted position that no such notice was given, the application for ejectment on the ground of default is at all maintainable.
12. ' Section 13-A was inserted in the Ordinance by West Pakistan Ordinance XXI of 1965 which was published in the official Gazette on 8-6-1965. The section reads as under:- "13-A. Where the ownership of a building in the possesssion 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 purpose 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."
13. ' It has been argued on behalf of the appellant that Mst. Shahzadi, the original owner died far back in the year 1962 and since that time it is admitted position that Khushi Muhammad continued paying rent to the appellant up to the time that he died in the year 1965. At the time of the death of Mst. Shahzadi there could be no question of issue of notice under section 13-A of the Ordinance, which was inserted for the first time in the year 1965. The question, therefore, in whether since the application was filed on 16-2-1971, when the aforesaid provision was effective, notice under section 13-A of the Ordinance was necessary before the application could be competently filed on the ground of default in the payment of rent.
14. ' In Muhammad Hussain v. Amtul Batul a decision of the Supreme Court, it was observed as under :- "Section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, has also no application on the facts of the present case. The ejectment application was filed against the petitioner in 1963 while this particular provision of law came into force in 19b5. On the language in this provision of law it cannot be applied retrospectively."
15. The above-quoted observation of the Supreme Court indicates that the date of filing of ejectment application is to be considered for the purpose of determination whether section 13-A aforesaid has application to the case. Taking the aforesaid criterion into consideration there can be no doubt about the fact that notice under section 13-A had to be issued 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 in the absence of the same.
16. ' With regard to the argument that payment of rent after the death of Mst. Shahzadi amounts to a fresh agreement by the parties to consider the appellant as the landlord, it is by now settled law that such an agreement o contract which has the effect of contracting out of protection provided by the law would be void being against public policy. In E. A. Evans v. Muhamma Ashraf, a decision of the Supreme Court, it was inter alia observed that tenant under section 30 of the Displaced Persons (Compensation and Rebabili tation) Act (XXVIII of 1958) cannot contract out of protection provided by the section. The same principle will, therefore, apply to the protrction given to the tenant under section 13-A of the Ordinance. In Sabu Mal v. Kika Ram alias Heman Dasa decision of the Supreme Court, 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 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 (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 of the notice."1 2 3 The fact that the respondent under the tentative rent order dated 31-7-1971, passed by the learned Controller, was depositing rent will also not affect the position with regard to notice under section 13-A of the Ordinance. In Shaikh Muhammad Hussain v. Mubeena Begum and another, a decision of this Court, it was observed that notice under section 13-A aforesaid was mandatory and there was no room for agreement outside statute betweed transferee landlord and tenant to pay rent.
17. ' It is apparent from the fact that the respondent filed a Civil Suit No, 197/71, in which she had inter alia stated that she was willing and ready to pay rent to the legal owner and landlord and the further fact that in the written-statement filed before the Controller also she had stated that many persons were claiming rent but no one was ready to pay or give receipt and F that she was unable to know who were the landlords and owners and what were their shares in the property; even if the provisions of section 13-A of the Ordinance had not been in existence, the Controller may not have exercised his discretion in permitting ejectment on the pleas raised by her. In Mrs. Mariam Fernandes v. State Life Insurance Corporation of Pakistan, Karachi a decision of this Court, it was inter alia observed as under:- "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 provision is clearly to enable the tenant to know whom he is to attorn and the section being a remedial provision should be construed liberally."
18. ' In view of the circumstances discussed above, there is no weight in this appeal, which is accordingly dismissed, however, with no order as to costs. 1970 SCM R 286 PLD 1964 SC 536 1973 $ C M R 185 1979 CLC 40 PLD 1981 Kar. 591