1. ' The appellant is a tenant of Flat No,5, Coronation Building, situated opposite Regal Cinema, Karachi who purchased it by a sale-deed dated 26-10-1978. The respondent filed an ejectment Case No,5218/78 against the appellant on the ground of non-payment of rent, subletting and personal bona fide use. The appellant resisted the claim and pleaded that no notice under section 13-*A of the Sind Urban Rent Restriction Ordinance,' 1959 was served, denied the relationship of landlord and tenant as well as other allegations contained in the application. The Controller framed preliminary issue and by order, dated 21-10-1979 held that the relationship of landlord and tenant exists between the parties. He further held that notice under section 13-A of the Ordinance was not served, and therefore, the application on the ground of default in payment of rent could not be pursued. He decided to proceed with the matter on other grounds stated in the application namely subletting and personal bona fide requirement of the respondent. The respondent challenged the aforesaid order in appeal before the District Judge, which was dismissed on 24-5- 1980. The respondent preferred a second Appeal in the High Court. In this appeal, the respondent filed an application seeking direction to the appellant to deposit arrears of rent in Court w.e.f, 1.7.1978. The High Court passed an order dated 23-12-1980 directing the appellant to deposit arrears of rent from 1-7-1978 to 30-11-1980 amounting to Rs,2,900 @ Rs,100 p.m, and further directing to continue to deposit future rent before 10th of each succeeding month. The arrears were deposited by 31-1-1981. During the pendency of this appeal the appellant filed an ejectment Application No,6915/80 on 3-12-1980 on the ground of default in payment of rent from 1-7-1978. The appellant filed written statement and raised preliminary objection that the application is not maintainable, as the matter is sub judges before the High Court in second Appeal No, 311/80 on the same cause of action. It was further pleaded that the alleged arrear of rent had been deposited in that appeal, and that no fresh cause of action has accrued to the respondent. It was also pleaded that the rent for the month of August, 1978 was offered personally to the previous owner, who refused to accept the same. The rent for the months of August and September 1978 was again offered to the previous owner, who did not accept. Ultimately the rent for August, September and October was sent by money order which was refused. The learned Controller recorded the evidence and by the impugned order, dated 17-1-1982 held that in view of the pendency of second Appeal he would keep the matter in abeyance till such time the appeal is decided by the High Court. The respondent withdrew the appeal do 28-2-1982 and consequently, the learned Controller passed the impugned order on 31-5-1982 granting the ejectment application.
2. ' Mr.Nooruddin Ramzan the learned counsel for the appellant has contended that as no notice under section 13-A was served on the appellant order for ejectment for default of payment of rent could not be passed by the Controller. in this regard the learned counsel has referred to section 13- A and contended that the provisions are mandatory in nature requiring a transferee to serve a notice by registered post A/D and the default shall be deemed to have been committed, if rent is not paid within 30 days of the receipt of notice. The learned counsel relied on Evans case reported in PLD 1964 SC 536 where while interpreting the provision of section 30 of Displaced Persons (Compen sation and Rehabilitation) Act it was held that it is mandatory in nature and notice should be served in the manner provided therein.
3. ' Mr. Gharib Nawaz Daccawala the learned counsel for the respondent contended that the provision of section 13-A are directory and not mandatory, and if it is established that the tenant has the knowledge of transfer of the premises; then no notice as provided by section 13-A is necessary. The learned counsel further contended that the Appellant has not raised this plea in the written statement, and is, therefore debarred from agitating it in appeal.
4. ' Taking the last contention of the learned counsel for the respondent first, it seems clear from the written statement that such plea was not specifically raised by the appellant.
5. ' Mr.Nooruddin Ramzan has referred to the preliminary objection raised in the written statement, but none of them state that the application is not maintainable for want 'of notice under section 13- A, nor such a plea can be said to have been taken in any part of the written statement. The learned counsel has referred to Mst.Murad Begum v. Mohammad Rafiq PLD 1974 SC 322 where it was held: ' It is well-settled that a party cannot be permitted to raise any altogether different and new ground of attack or defence, by departing from its previous pleadings, especially when the opposite party had no opportunity to adduce evidence in this behalf or to otherwise have an opportunity of meeting the plea during the course of the trial."
6. A party cannot be permitted to take completely new ground which it had not taken during the trial and was available to him, particularly so when such a plea is dependent on face requiring evidence to prove it. In the present case, the appellant did not raise this plea which involves question of fact and unless some evidence is led to prove that fact no decision can be given on it.
7. Therefore, as the appellant did not plea this objection specifically, it should be deemed to have been waived.
8. ' The next question is, what is the nature of section 13-A. In this regard the learned counsel for the respondent has referred to Khuda Bakhsh v. Mohammad Yaqoob etc. 1981 SCMR 179 where it has been held that notice under section 13-A is merely an intimation of transfer, and where the transfer is admitted, even if notice had not been served under section 13-A it would not stand in the way of the Court in granting relief. In a recent case of Riaz Ahmad v. Mohammad Hussain, 1984 CLC 841 Naimuddin, J. after referring to a large number of authorities, observed as follows:- "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 so that the tenant may not continue to pay the rent to the previous landlord 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 he has started paying the rent to the new landlord then the sect of the provision is achieved 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."
9. It is, therefore, clear that section 13-A only requires the intimation of transfer by a transferee. In view of Khuda Bakhsh s case 1981 SCM R 179 and Sabu Mall's case 1973 SCM R 185 the contention that principles enunciated in Evan's case should be applied cannot be accepted.
10. ' Mr.Daccawala contended that in the present case, the appellant was aware of transfer, and therefore, no notice under section 13-A was necessary. In this regard, the learned counsel has referred to the averment made in para. 2 of the written statement which reads as follows:- "That contents of para. No. 2 of the application as stated are denied. The opponent came to know about the sale of the flat to the applicant for the first time when he was served with the Notice and copy of Ejectment Application in Rent Case No.5218/78. The rest of the para is denied."
11. ' From these averments there can be no doubt that the appellant came to know about the transfer of flat to the respondent for the first time on 3-11-1978 when the notice of Rent Case No.5218/78 had been served. This admission on the part of the appellant is sufficient to show that the appellant was aware of the transfer as far back as in November, 1978. Once a tenant is aware, and has knowledge of change of ownership he is estopped from raising a plea of want of notice under section 13-A. Reference can be made to 1982 CLC 434. Consider ing the nature and object of section 13-A it is clear that once the tenant is aware of transfer, by notice or otherwise he cannot plead non-service of notice under section 13-A. The learned counsel for the respondent has rightly contended that the filing of ejectment application is itself a notice of transfer of property. In this regard, the learned counsel has referred to 1969 Law Notes SC 78, where in the closing part of the judgment, it was observed that "if any fresh notice was in fact required the ejectment application itself was to be considered as sufficient notice in this behalf." Therefore, after service of notice of the ejectment case filed earlier the appellant was put to notice of transfer and from that date he should be deemed to have acquired the knowledge of transfer as contemplated by section 13-A.
12. ' Now the question is whether after having acquired such a knowledge the appellant has committed default in payment of rent. The admitted position is that he deposited the rent only after the respondent had filed an application for deposit of rent in second Appeal. Before the order was passed on 23-12-1980 the respondent had filed an ejectment case on 3-12-1980. The admitted position therefore, is, that from November, 1978, till December, 1980 the appellant having knowledge that the property has been transferred to the respondent did not make any attempt to pay the rent to the respondent or to deposit the same in Court. On 21-10-1979 the Controller had held that as notice under section 13-A was not served ejectment on ground of default would not be granted.
13. The 1st Appeal filed by the respondent was dismissed and second appeal was pending. During this intervening period the appellant in spite of knowledge of transfer did not pay the rent. In his written and evidence, appellant has stated that he had tendered the rent from July to October to the previous owner personally and by money order but it was refused. However, since the knowledge was acquired on 3-11-1978 thereafter no attempt was made to pay the rent to the respondent.
14. Therefore, the appellant has clearly committed default. The learned counsel relying on 1964 PLD Kar 206 has correctly contended that once the default has been committed, it cannot be wiped out by making a subsequent deposit or payment. The order for deposit of rent in appeal cannot absolve the appellant from default. The. appeal therefore dismissed. The appellant should vacate the disputed premises within four months from 9-4-1984.