' This appeal under section 21 of Sind Rented Premises Ordinance, 1979, (hereinafter called the Ordinance) is from the order, dated 27th April, 1983 passed by the Controller in Rent Case No, 519 of 1979.
2. The relevant facts, briefly stated are that the respondent in December. 1971 purchased two shops built on Plot No, 165 Block 'C', Unit No, 10, Hyderabad from Ghulam Abbas, the previous owner and landlord. The appellant was the tenant in one of the shops at a rent of Rs, 140 p.m. The appellant continued to pay rent of the shop to the respondent from the date of purchase for more than two years, till February, 1979 but failed to pay the rent from March, 1979. Therefore, the respondent, on 22nd October 1979 filed an application under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 for eviction of the appellant from the shop on the ground of default in payment of rent.
3. In the written statement, the appellant pleaded that the application was not maintainable as he was not served with any notice regarding the transfer of ownership by the respondent. He, however, did not deny in the written statement that he had continued to pay the rent of the shop to the respondent after its transfer.
4. On the pleadings of the parties the Controller framed the following issues :-
(1) Whether the application is not maintainable ?
(2) Whether the opponent had defaulted in payment of rent ?
(3) What should the order be ?
5. Before the Controller the respondent has filed his own affidavit (Exh. 9) and the rent agreement between the previous landlord and the appellant (Exh. 23), and the appellant has filed his own affidavit (Exh. 16) and closed his side.
6. In the affidavit filed by the respondent he has inter alia stated that the appellant did not make any payment of the rent to him since March, 1979 in spite of repeated demands for the same. In cross-examination it was suggested to the respondent that the appellant had offered monthly rent to him but he had avoided to receive it.
7. The appellant in his affidavit (Exh. 16) has stated that the applicant/ respondent used to come to his shop to collect the rent from him every month and issue receipt for the same. But the applicant/respondent avoided to receive the rent which was offered to him many times.
8. The Controller, however, on both the main issues found against the appellant and by the impugned order directed the appellant to put the respondent in vacant possession of the premises within 30 days of the passing of the order.
9. The appellant has, therefore, come up in this appeal.
10. I have heard Mr. Jehmat Jethan and learned counsel for the appellant and Mr. Syed Madad Ally Shah, learned counsel of the respondent.
11. The only ground urged before me by the learned counsel for the appellant is that the appellant was not the defaulter in payment of rent as the respondent had failed to serve notice of change of ownership as required under section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959, which reads as follows :- "Where the ownership of a building in the possession or a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner whatsoever, from one person to another the new owners 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 30 days from the date when the intimation should in the normal course have reached him."
12. The learned counsel for the appellant has relied on Sh. Muhammad Husain v. Mst. Mubina Begum and another (1) and Mrs. Mariam Fernandes v. State Life Insurance Corp. Of Pakistan, Karachi (2).
13. On the other hand Mr. Syed Allay Madad Shah learned counsel for the respondent has submitted that since the appellant had continued to pay the rent to the respondent for about 2 years after the change of ownership the service of the notice became unnecessary and in any case he is estopped from pleading want of notice under section 13-A and in support of his submissions he has relied on :-
(1) Khuda Bux v. Muhammad Yaqoob (3).
(2) M/s. Everyday Pictures Ltd. v. Chamman Begum (4).
(3) Muhammad Sharif Ahmad v. Syed Safdar Husain (5).
(4) Amarlal and another v. Molvi Muhammad Saeed (6).
14. Now, it will be seen from the provisions of section 13-A that the object of notice is to inform the tenant of the change of ownership s 4 that the tenant may not continue to pay the rent to the previous landlord
(1) 1979 CLC 42 (2) PLD 1981 Kar. 591
(3) 1981 SCMR 179 (4) 1983 SCMR 282
(5) 1982 CLC 434 (6) 1983 CLC 1000 ' and should pay the rent to the new landlord. Now, once the tenant has come to know of the change of ownership of the property and has started paying the rent to the new landlord then the object of the provision is ache eyed and it would be redundant, if in spite of payment of rent he is served with a notice. The requirement of sending the intimation by registered post is to avoid any dispute as to the sending of intimation to the tenant and to provide proof of the same but once the tenant started paying the rent to the new landlord then there could be no controversy as to the knowledge of the change of ownership and the object of the provision is fully achieved. In any case, in such circumstances the principle of estoppel will operate against the tenant.
15. No doubt, the two decisions of this Court relied upon by the learned counsel for the appellant support him but in the face of Supreme Court decision in Khuda Bux's case the two decisions relied upon cannot be followed. In Khuda Bux's case, it was observed by the Hon'ble Judges of the Supreme Court that 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 he paid by the tenant to the new landlord. It was further observed as follows :- " 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."
16. It may be stated that the view expressed in this case has been reiterated by Supreme Court in Mts. Everyday Pictures Ltd. v. Chaman Begum.
' In this case it was observed as follows :- "The learned counsel for the petitioner contended that since a notice as required under section 13- A of West Pakistan Urban Rent Restriction Ordinance was not served upon the petitioner the question of default could not be gone into at all. This contention was repelled by the High Court on the strength of the decision of this Court in the case of Khuda Bux v. Muhammad Yaqoob etc. 1981 SCMR 179 wherein it has been held that the reason for giving notice under section 13-A was to inform the tenant about the change of ownership of the property so that rent could thereafter be paid by the tenant to the new landlord."
' Proceeding further it was observed : - "In the instant case, the petitioner had accepted the fact that regarding the transfer of the property to the respondent consequent upon the receipt of notice from the Dy. Controller of Estate Duty and had also paid rent for several months to the respondent. He, therefore, cannot make any grievance that a notice as required under section '13-A of the Ordinance was not served upon him."
17. Therefore, in view of these high authorities the cases cited by learned counsel for the appellant cannot be followed for the law laid down by the Supreme Court is binding on all Courts including this Court.
18. It may be however be mentioned that in Sh. Muhammad Hussain's case reliance was placed by the learned Single Judge on the Supreme Cond. Case of Sabumal v. Kika Ram alias Heman Das (1).
This case has been explained in MI s. Everyday Pictures' case in the following words :- "The learned counsel referred to another decision of this Court in the case of Sabumal v. Kika Ram alias Heman Das 1973 SCMR 185 and contended that a contrary view was expressed in that case which however is not borne out from the judgment. In that case, the High Court had upheld the concurrent findings of the two Courts below regarding the personal need of landlord observing that the non-service of notice by the transferee-landlord in terms of section 13-A of the Ordinance had no effect on the maintainability of the ejectment application on the grounds other than that of default in payment of rent."
19. I must also deal the contention of Mr. Syed Ally Madad Shah learned counsel for respondent that the appellant is estopped from pleading want of notice.
20. It is admitted fact that after the change of ownership the appellant continued to pay the rent to the new landlord for more than 26 months and therefore, the principle of estoppel will operate against him. In Amar Lal's case on which reliance has been placed by the learned counsel for the respondent the tenant had entered into a tenancy agreement on 18th March, 1982 with effect from 1st March, 1972 and had paid the rent upto April, 1975 for more than 3 years. On these facts it was observed by Ajmal Mian J. As follows :- "In this view of the matter, I am inclined to hold that it is not open to the appellant to plead want of notice under section 13-A of West Pakistan Urban Rent Restriction Ordinance."
21. In the present case also the respondent has pleaded a fresh agreement though it is not found proved but the appellant in para. 3 of his affidavit (Exh. 16) has stated that he continued to be the tenant of the respondent on the same terms and conditions on which he was the tenant of the previous landlord and it is common ground that rent for 26 months was paid by the appellant.
22. I must also refer to the case of Nazir Hussain v. Aslam Shah (2). In this case it was observed by a learned Single Judge of Lahore High Court as follows : "Once there is an acknowledgment of the appellant being a tenant under Aslam Shah by paying rent to him, he cannot turn back and rely upon section 13-A in case of deliberate defaults made by him in the payment of rent. If the contrary is held to be true that would result in an anomalous situation. That will be giving more protection to the tenant than was in fact envisaged by the Legislature."
23. This case though has been dissented from in Sh. Muhammad Hussain's case but Ajmal Mian, J.
In the case of Amar Lal has not dissented from this case. Of course he has mainly relied on the Supreme Court decision in Khuda Bux's case.
24. Further, in view of two direct cases of the Supreme Court on section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959 it is not necessary to point out the distinguishing features of the Supreme Court in E. A. Evans v. Muhammad Ashraf (3).
(1) 1973 s e M R 185 (2) PLD 1977 Lah. 210
(3) PLD 1964 SC 536
25. Accordingly, I hold that on the facts and in the circumstances of this case notice under section 13-A was not necessary and the appellant has been rightly found to be a defaulter in the payment of rent and his order of eviction is just and proper.
' The appeal, therefore, merits dismissal and I accordingly dismiss it.