S.A. NUSRAT, J.--This petition for leave to appeal is from the judgment and order, dated 19-12-1983 passed by a learned Single Judge of the High Court of Sind whereby the Second Rent Appeal of the petitioner was dismissed.
2. The brief facts, as are relevant, shortly are that the petitioner, who is a practising doctor, has been a tenant ever since 1928 in respect of the disputed premises bearing No. G/1 in a building on Kutchery Road, Karachi where he has been running a clinic. In or about 1960 the building was purchased by Nazar Ali Sultan Ali and the petitioner attorned to him and paid rent to the said new owner. The respondent, who is said to have been initially in the service of the Settlement Department and later transferred to K. D. A. Applied for the transfer of the building as an informant and successfully obtained a P.T.D. In his favour on 15-9-1960. Thereafter, sometime in 1962 tie served/ delivered a notice/letter to the petitioner claiming rent of the disputed premises at the rate of Rs.
114. The petitioner, however, offered rent at the rate of Rs.44 to the respondent on the basis of latest K.M.C. Assessm ent which the respondent declined to accept. It appears that the transfer of the building in favour of the respondent was under some dispute which was finally resolved on 5- 3-1965 by the Supreme Court when the transfer in respondent's favour was upheld. After securing such order, the respondent served notice, dated 18-3-1965 upon the petitioner, purporting to be under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, demanding rent at Rs.114 on the basis of an alleged assessment by the K.M.C. In the said notice reference was made to an earlier notice, dated 8-3-1963 the receipt whereof was denied by the petitioner. On receipt of the notice, dated 18-3-1965 the petitioner alongwith his reply, dated 30th March, 1965 sent a cheque of Rs.2,376 for a period of 54 months at the rate of Rs.44 per month covering the entire period. This payment was not accepted by the respondent and the cheque was returned whereupon the petitioner sent another cheque under the cover of his letter, dated 24-6-1965 for a sum of Rs.2,508 which to was returned by the respondent who maintained having served earlier notice of 1960 on the petitioner.
3. On the above facts, the respondent filed an ejectment application, dated 28-8-1965 on the grounds of default in payment of rent and sub-letting. The application was resisted by the petitioner who filed his written statement in the case denying the allegations. The petitioner maintained in his written statement that the rent of the disputed premises was Rs.44, according to the latest municipal assessm ent, which he was ready and willing to pay. In the proceedings tentative rent order was passed by the learned Rent Controller for deposit of rent at the rate of Rs.114 which was however later modified to Rs.75 on the appeal of the petitioner. The learned Rent Controller, after framing the issues and recording and receiving both oral and documentary evidence of the parties, decided both the issue of default and subletting against the respondent and dismissed the ejectment application by order, dated 27-2-1974. The findings of the learned Rent Controller were challenged by the respondent in a first rent appeal which was accepted by the learned Additional District Judge by order, dated 7-5-1975. The learned Additional District Judge held that the rent of the disputed premises was Rs.114 p.m. And, therefore, the petitioner should have tendered rent at the said rate. Thus the issue of default was decided against the petitioner. The plea of subletting was also accepted. As a result of such finding, the order of the learned Rent Controller was reversed and the petitioner was directed to vacate the premises within one month. The petitioner thereupon filed a second appeal in the High Court which was disposed of as per impugned judgment whereby the issue of subletting was decided in favour of the petitioner; but the finding of default recorded in the case by the Additional District Judge was affirmed and the order of ejectment was maintained.
4. It may be mentioned that while the proceedings were pending before the learned Rent Controller the building was transferred by the respondent to Mst. Salma Najmi on 10-1-1968 which is evidenced by the Extract from the Property Register of the said date appearing at page 52 of the record. It is not disputed that no notice as required under section 13-A of the West Pakistan Urban Rent Restriction Ordinance was served by the respondent upon the petitioner consequent upon the transfer of the building in favour of Mst. Salma Najmi.
5. We heard Mr. S. Sharifuddin Pirzada, learned counsel for the petitioner, in support of the petition and Mr. Naseem Farooqui, learned counsel for the caveator-respondent and have been taken through the record.
6. It was contended by the learned counsel for the petitioner that upon service of the first notice in 1960, the petitioner had offered rent to the respondent on the basis of latest K.M.C. Assessment at the rate of Rs.44 per month which was declined, and the petitioner had further remitted rent twice after receiving the second notice, dated 18-3-1965 which to was refused. The service of a purported notice, dated 8-3-1963, referred to in the letter, dated 18-3-1965, was not proved because on account of petitioner's denial; no attempt was made to prove the fact of posting and its acknowledgment by the petitioner.
As regards municipal assessm ent, learned counsel invited our attention to a copy of the Extract from the Revision Book for the year 1960-61 as per letter of the Chief Assessor and Collector K.M.C.
Dated 23-11-1965 (Exh.28) showing the assessment of the disputed premises at Rs.44 p. m. This certified copy was issued in due course on payment of necessary fees, as per endorsement appearing at the bottom of the copy. On the other hand, the respondent had tendered in evidence another Extract from the Property Register, dated 14-5-1968 (Exh.12) which appears at page 137 of the record. The learned counsel invited our attention to the endorsement appearing at the bottom of the Extract where neither the challan number nor the date of payment of certification fee has been mentioned. In any case, it was contended that this Extract was not proved by the respondent.
In this connection reliance was placed on the statement of Ghulam Mustafa, a clerk in the Office of the Chief Assessor and Collector, who had proved Exh.28 and stated that the revised assessment of Rs.114 was not mentioned in the record brought by him, and that there was no other Register pertaining to the relevant period. In the circumstances, it was asserted that the default in payment of rent was not proved as the petitioner had duly tendered rent according to K.M.C's. Assessment of Rs.44 which was refused by the respondent and the petitioner, therefore, could not be blamed. It was vehemently contended that the effect of transfer of the disputed property to Mst. Salma Najmi was not taken into consideration at all by the learned to Appellate Courts which also involved consideration of the question of want of service of notice under section 13-A of the West Pakistan Rent Restriction Ordinance. Further, upon transfer of the property, Mst. Salma Najmi had become the owner o the property and respondent's right to eject was extinguished who at best was entitled to claim rent for the period of his ownership. It was also contended that the Rent Controller had passed order in favour of the petitioner against which, by virtue of transfer of ownership in favour of Mst. Salma Najmi, the respondent was not an aggrieved person and the appeal filed by him was, therefore, not maintainable.
Leave is granted, inter alia, to examine the above contentions Security in the sum of Rs.2,000. The appeal shall be made ready on the present record with liberty to the parties to file additional documents, if any, and will be set down for hearing within three months.