1. ' This Second Appeal arises from the order of the learned Additional District Judge who has confirmed the order of the Controller granting application for ejectment of the appellant. The dispute is in respect of the premises on Plot No, 75, Survey No,50-SLB-I, Soldier Bazar, Karachi. The appellant is a tenant of the said premises on monthly rent of Rs,16. The respondent filed an application for ejectment on the ground that the property has been' transferred to her by a gift deed dated 9th June, 1964 by the previous owner of the building Gohar Ardeshir Nosherwani and since then the appellant has defaulted in payment of rent and further that the appellant has ceased to occupy the premises for a continuous period of three years without reasonable cause.
2. The appellant filed written statement denying the relationship of landlady and tenant stating that it is the tenant of Mst. Gohar Nosherwani and is depositing the rent in Court. It was also pleaded that the application is barred by the provision of section 13-A of the Ordinance as no notice of transfer was served by the respondent. It was denied that the appellant is in arrears of rent. It was also denied that it has ceased to occupy the premises and pleaded that it is using the premises as a godown. The Controller granted the ejectment application against which an appeal was filed. The first Appellate Court held that the question of relationship of landlord and tenant had not been decided and remanded the case to the Controller for deciding this issue. The respondent challenged this order in the High Court and the appeal was allowed. The District Judge was directed to dispose of the appeal on merits as the Controller had decided the issue of relationship.
3. The learned Additional District Judge by impugned order dismissed the appeal.
4. ' The ejectment was sought on two grounds, namely, default and secondly that the appellant has ceased to occupy the premises, for more than three years without reasonable cause. Mr. Umrani the learned counsel for the appellant has contended that the appellant was the tenant of Gohar Nosherwani and was paying rent to her. After the property was transferred as stated by the respondent no notice under section 13-A was served on the appellant and therefore, in view of section 13-A of the Urban Rent Restriction Ordinance, 1959 it cannot be treated as defaulter.From the record it seems that the respondent's attorney had stated that he had informed all the tenants including the appellant verbally about the transfer.He also stated that a notice 7th February, 1969 was sent which was returned unnerved as the premises was closed. In reply to this contention Mr. Iqbal Kazi, the learned counsel for the respondent has contended that section 13-A was added in the Ordinance on 8th June, 1965 and no retrospective effect was given to this amendment.
5. Therefore, according to the learned counsel section 13-A cannot be made applicable to the present case, and no notice was required to be given to it. Section 13-A was added by Ordinance XXI of 1965 but retrospective operation was not given to it. Mr. Omrani has,however, contended that as proceedings were instituted after the amendment, the notice should have been given under Section 13-A which reads as follows:-- "13-A. Where the ownership of a building in the possession of the 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."
6. Where by operation of transfer, sale, gift or inheritance or in any other manner the ownership of any building is changed it is the duty of the transferee to intimate the tenant of such change of ownership. Such notice should be sent in writing by registered post acknowledgment due to the tenant. The consequences of such a notice are that if the rent due is paid within 30 days from the date when the intimation should have reached, then the tenant shall not be deemed to have defaulted in payment of rent. This provision therefore casts a burden upon the transferee landlord to intimate the tenant of the change of ownership and also grants protection to the tenant. Such provision cannot be treated as procedural. It is a substantive provision of law engrafting certain limits in regulating the relationship of landlord and tenant. Therefore, its application will be prospective in operation and will be applicable to such transfer sale and gift which have been made from the date of the promulgation of this section. In this regard Mr. Iqbal Qazi, the learned counsel has referred to 1970 SCMR 286 and PLD 1967 Kar.
820. In the first case the transfer was effected during the pendency of the proceedings and hence it is distinguishable. The facts of the second case were similar to the present one.
7. Considering the nature and effect of notice contemplated by section 13-A the landlord must send it by registered post acknowledgment due. This mode of service is prescribed by law and any laxity in this regard is likely to affect the benefits that may accrue to the landlord. In this regard reference is made to E.A. Evans v. Mohammad Ashraf PLD 1964 SC 536. While considering section 30 of Displaced Persons (Compensation & Rehabilitation) Act, 1958 which provides for service of notice by registered post acknowledgment due, the following observation was made:-- "It is difficult to accept upon the wording of this section that such a notice could even be implied notice or information received aliened. In the face of the language of the proviso, which requires that the notice should be served "by registered post (acknowledgment due)", such an interpretation is not possible. To hold that, notwithstanding such clear and unambiguous words, even implied notice would be sufficient to render the words "by registered post (acknowledgment due)" in the proviso redundant, which cannot be done. Every word in a statute has to be given a meaning and the only meaning that these words are capable of bearing is that express notice in writing must be given in the manner prescribed."
8. If a transferee landlord chooses to send a notice under section 13-A it must be sent by registered post acknowledgment due.
9. ' As discussed earlier section 13-A is not applicable to the present case hence no notice was necessary to the appellant. In this background it has Ds one seen whether any default has been committed by the appellant.
10. ' The appellant has pleaded that he has been depositing the rent in Court, but from the evidence it seems that he started depositing rent after the filing of the ejectment case. There is no explanation why the rent was not paid from June, 1964 onwards. The case was filed in the year 1969 but the appellant has failed to produce any evidence to show that in the absence of any intimation of transfer it was bona fide paying rent to the previous landlady. In fact in evidence it was stated that the appellant had been approaching Ardshar for payment of rent, but he was putting off on the ground that there was a family dispute and rent would be accepted after its settlement. If this was the position the appellant could have deposited the rent in court or sent it by money order. There is no valid explanation for non-payment of rent to the landlady for a long period of five years. The deposit of rent by the appellant after such a long time cannot wipe out the default. The Controller and the first Appellate Court have given a concurrent finding of fact that the appellant is a defaulter. This concurrent finding of fact cannot be disturbed unless it is shown that it is completely perverse or is not based on evidence. The learned counsel for the appellant has not succeeded in pointing out any such defect.
11. The next contention of the appellant is that the ejectment on the' second ground viz. That appellant has ceased to occupy for a continuous period of 4 months without lawful excuse, is based on the only evidence that the premises was locked. The Controller has relied on the endorsement of the postman that when he went to serve the notice the premises was locked. Again reliance has been made to the report of the bailiff who has stated that on several occasions when he went to serve the notice he found that the premises were locked. Respondent's attorney has also stated that the premises was locked and was not used by the appellant. As against this material, the appellant has only stated that it was locked and it is used as a godown. The appellant produced no evidence to show that although the premises is locked, it has not ceased to occupy it and the same was used as godown. On the basis of this material on record both the Courts have given their finding against the appellant and I find no justification in disturbing it. In the result the appeal is dismissed.
12. The appellant is permitted to hand over vacant possession of the premises to the respondent within a period of one month failing which writ of attachment shall issue without notice. .