' Mst. Qaisar Zamani is in possession of the house as tenant, on payment of Rs.50 as monthly rent.
This house was previously owned by Muhammad Saeed Siddiqui and others. Mst. Rasheeda Begum purchased the house vide Registered Sale-Deed dated 30-11-1980. An ejectment petition was filed by Mst. Rasheeda Begum seeking eviction of Mst. Qaiser Zamani from the house in dispute on the ground of default in payment of rent since the month of December, 1980 and her personal need.
Mst. Qaisar Zamani filed written statement and defended her stay in the house. Apart from raising preliminary objections, she denied the averments made in the ejectment petition. On the pleadings of the parties, "Rent Controller seized of the dispute, framed the following preliminary issue:--
(1) Whether the relationship of landlord and tenant exists between the parties.
' Vide order dated 7-2-1983, the above-noted issue was found in favour of the landlady and the tenant was directed to vacate the premises. Tenant appealed. Appeal was dismissed by learned Additional District Judge, Gujranwala on 12-4-1983. Eviction orders were assailed in constitutional jurisdiction through Writ Petition No. 2538 of 1983. Vide order dated 11-10-1983 constitutional petition succeeded, both the orders impugned therein were quashed and set aside and the case was remanded to the Rent Controller for decision afresh. The Court observed:-- "In order to avoid the prolongation of this litigation, without prejudice to the respondent's stand in the ejectment proceedings, her learned counsel has no objection if the impugned orders are set aside and the case sent back to the Rent Controller for fresh decision, provided a direction is given to him to dispose it of expeditiously.
(2) In this view of the matter this writ petition is allowed. The orders passed by the Tribunals below are set aside and the case is sent back to the learned Rent Controller, with the direction that after recasting the issues, if need be, and allowing the parties to lead fresh evidence if they so desire, he shall decide it afresh in accordance with law, within a period of four months.
(3) The parties are left to bear their own costs and directed to appear before the learned Rent Controller on 23-10-1983.
2. In pursuance to the remand order some more evidence was recorded and Mst. Qaisar Zamani also appeared in support of her own case. Rent Controller again found against tenant on the above-noted preliminary issue and proceeded to order her ejectment forthwith, without entering into the merits relating to default and personal bona fide need. This was vide order dated 15-2- 1984. Tenant again appealed. Appeal was dismissed by learned District Judge, Gujranwala, vide his order dated 7-5-1984.
3. Aggrieved, this constitution petition has been presented by Mst. Qaisar Zamani through her counsel Mr.C.A.Rehman, Advocate questioning the correctness and legality of the decisions concurrently recorded against her by the Courts below. Writ petition was admitted on 12-8-1984.
The order recorded on 12-8-1984 reads:- "The effect of non-service of notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 by a landlord on a tenant for eviction on the ground of non-payment of rent requires consideration in the circumstances of the case. Admit. Notice.
(2) The petitioner's possession shall not be disturbed in the meanwhile. This is subject to notice.
4. Writ petition has come up for final hearing before me today in presence of learned counsel for the parties. I have heard learned counsel for the parties and examined the available material with their assistance Mr.C.A.Rehman, learned counsel for the petitioner contended:-
(i) the tenant had never denied the ownership of the landlady nor her right to receive rent assigned under the Registered Sale-Deed dated 30-11-1980. It had only been asserted by her that she had not been served with a mandatory notice required under section 13-A of the Punjab Rent Restriction Ordinance, 1959 as amended and had no intimation received from the landlady regarding the change of ownership. The relationship of landlord and tenant was denied in this context. She never asserted right of ownership in herself or any other person. The Courts below, therefore, missing pivotal point of controversy relating to absence of notice under section 13-A and its consequential legal effects qua the plea of default alleged, proceeded to determine, the issue of relationship of landlord and tenant on erroneous considerations and finding it in the affirmative, thereafter ordered forthwith ejectment without taking further proceedings under section 13 for finding out the default and personal need as expressed by the landlord.
(ii) Service of notice under section 13-A, Part of Ordinance VI of 1959, as amended in the manner and form prescribed was mandatory and the eviction petition cannot in law be equated as notice under section 13-A of the Ordinance. The force of precedent case NLR 1980 Civil (Lah.) 134, stands considerably weakened as the Supreme Court of Pakistan has granted leave to consider the correctness of the view expressed.
(iii) Proper issues have not been raised despite remand order of the High Court. Absence of proper issue covering the controversy raised has resutled in improper trial and disposal of the controversy.
Notice under section 13-A is not proved to have been served. Finding recorded to the contrary holding service of notice proved is based on clear misreading of record.
(iv) Learned District Judge has not attended to the points raised before him and has through a very brief order disposed of the appeal, it is neither a speaking order nor disclosed reasons in support thereof.
5. Learned counsel for the respondents, however, defended the orders passed by the Courts below and submitted that since the writ petition had denied the relationaship of landlord and tenant in unequivocal terms, the issue framed correctly represented the pleadings. After the issue was found in favour of the landlord, there was nothing left to be proceeded with further as nonpayment of rent stood admitted in the denial of the tenancy. It was further submitted that the purpose of service of a notice under section 13-A of the Ordinance was to acquaint the occupant about the change in ownership. She had knowledge of such a change and despite that committed default in payment of rent. Rent Controller as well as District Judge, therefore, rightly ordered her eviction from the premises on account of an affirmative decision on preliminary issue. Further proceedings to determine the issue of default were not at all required in the circumstances of this case. Learned counsel also submitted that there was ample evidence on record to prove service of notice.
Postman who had taken the Registered envelope properly and correctly addressed containing the intimation of transfer had appeared in the witness-box. Closed Registered envelope Exh.A1 is also on record. The landlady cannot be made to suffer on the ground that the tenant managed to slip away at the time when the Postman went to deliver the Registered Notice to her. In any case, it was contended, that, Mst. Qaisar Zamani was posted with full information and knowledge aliunde and the notice was served as an additional precaution to forestall any objection.
6. It is admitted that previous to the transfer in favour of Mst. Rasheeda Begum the property in dispute was owned by Muhammad Saeed Siddiqui etc. and was in occupation of Mst. Qaisar Zamani as tenant on payment of monthly rent. Vide registered sale-deed dated 30-11-1980, property was sold to the present landlady. After purchasing the property she instituted the eviction petition which has given rise to the present controversy. Tenant Mst. Qaisar Zamani in para. No.1 of the written statement admitted that the property in her occupation was owned by Muhammad Saeed Siddiqui etc. and she was occupying it as tenant on payment of Rs.50 p.m. as rent. She denied knowledge about the purchase asserted by the other side. Service of notice as alleged in the eviction petition was also denied. The pleadings of the parties as presented before the Rent Controller, therefore, showed that the relationship was being denied solely on the ground of the absence of requisite notice under section 13-A of the Punjab Ordinance VI of 1959 as amended in 1965. Title to the property was not being claimed by her or asserted in any person other than the landlady. Now this was not that type of A denial of relationship of landlord and tenant, which if found to exist after inquiry, can warrant straightaway an ejectment order without further inquiry into the allegations of default etc. The term landlord is defined in clause (c) of section 2 of Urban Rent Restriction Ordinance, 1959 as meaning any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of any other person or as trustee guardian, receiver, executor or administrator for any other person and includes a tenant who sublets any building or rented land in the manner authorised and every person from time to time deriving title under a landlord. It will be seen that the transferee from the original landlord would be covered by this definition as a person for the time being entitled to receive rent in respect of the building or rented land. Such being the case, the relationship of landlord and tenant would come into existence between the parties, once the rights, title and interests of the original landlord C were transferred to the respondent under the sale effected.
Creation of tenancy in no way, would be dependent upon service of a notice under section 13-A of the Ordinance. 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. In case 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 was not paid within 30 days from the date of service of the notice actual or presumptive. Reason and purpose behind section 13-A is just to inform the occupant of the premises about the change of ownership of the property in his occupation and to enable him to pay the rent due to new owner/successor of the previous landlord. It has nothing to do with the establishment of relationship of landlord and tenant, which, as stated above comes into being with the transfer of the property. Service of notice is not at all necessary to create relationship of landlord and tenant between the parties. The beneficial provision of law works to the benefit of both the landlord and the tenant. On the one hand, the landlord is entitled to claim and receive rent from the tenant and on the other hand, it enables the tenant to discharge his obligation in regard to payment of rent. Thus the tenant in order to avoid his eviction from the tenanted premises on the ground of default, on the receipt of notice if so minded hastens to discharge his legal obligation to pay rent due to the landlord within the specified time and thus defend his possession of the premises When the main purpose and spirit is to acquaint the tenant about the change of ownership, service of notice in the manner and form prescribed may not be necessary if the tenant is proved to have acquired knowledge/information aliunde. The tenant, therefore cannot insist on the strict compliance of section 13-A of the Ordinance, in regard to the service of a notice in the manner and form prescribed therein, if it is proved that he had otherwise knowledge of the transfer/change of ownership. Certain precedents from Karachi jurisdiction do lay down that the requirements of notice as provided in section 13-A are mandatory. Notice containing intimation of transfer must be issued and served as prescribed in the section and payment of rent by tenant to the new landlord for some time and its subsequent discontinuance does not amount to waiver of his right to receive notice under section 13-A. So far as Lahore High Court is concerned, the view prevailing is different. In case of Nazar Hussain v. Aslam Shah PLD 1977 Lah. 210, it has been observed:- "As stated above, section 13-A only visualises a presumption which cannot be said to be conclusive. in any respect. At the most it is rebuttable presumption. If in a given case the tenant is proved to know about the death, acknowledges the heir or the transferee as the landlord and starts paying rent to him, a fresh tenancy will be deemed to have been created in favour of the person who has received the property by devolution or transfer.
6. If the matter is looked from this point of view, it will be clear that the appellant had become a tenant of the respondent since it was admitted in A.W.1/1 that Chanan Din had died and after his death the appellant had started paying rent to Aslam Shah respondent. His only grievance was that Aslam Shah had no right to enhance the rent from a sum of Rs.10 to Rs.50. The word "tenant" has been defined in the Urban Rent Restriction Ordinance, as meaning a person by whom or on whose account rent is payable for a building. The word "landlord" is defined as a person for the time being entitled to receive rent. 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 the rent. If the contrary is held to be true that would result in an anamalous situation. That will be giving more protection to the tenant than was, in fact, envisaged by the Legislature. The unreported case relied upon is no doubt of this category but the points that I have taken into considera tion, have not been taken into consideration in that case. In these circumstances I am in agreement with the learned Additional District Judge that the question of notice under section 13-A did not arise. In fact by his own conduct the appellant haS caused the respondent to believe that he acknowledged him as his landlord notwithstanding the non-service of a notice under section 13-A and it is no longer necessary to serve any notice upon the appellant. The principle of estoppel will thus apply against the appellant. If he had not paid any rent to Aslam Shah, I have no doubt that he would have served a notice under section 13-A upon the appellant. But the appellant himself brought about a situation by paying the rent to him so that he might consider it unnecessary or futile to serve the notice upon the appellant. In this view of the matter I find no merit in this appeal which is dismissed in limine."
' In Phool Muhammad v. The Additional District Judge, Lahore and two others L981 CLC 179 Mr.Justice M.S.H.Quraishi (as his Lordship then was), after comparison of the requirement of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act with section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 observed:- "3. As regards the first issue, the admitted position is that the property in question had been purchased on 30-6-72 by Abdul Rashid, the respondent landlord, from Abdul Hamid, the transferee of the property, but that the new landlord had not served any notice as required under section 13-A of the West Pakistan Urban Rent. Restriction Ordinance (VI of 1959). However, the Controller and the Appellate Authority had found that as the tenant by tendering rent to the respondent had acknowledged him to be the new landlord, he was estopped from raising the objection. For this they had relied on Nazar Hussain v. Aslam Shah PLD 1977 Lah.
210. The contention as raised before me is that a notice in the manner prescribed by law was necessary and in the absence of such a notice the tenant was under no liability to pay rent to the new landlord. Reliance has been placed on E.A.Evans v. Muhammad Ashraf PLD 1964 SC 536 and Sardar Begum v. Lahore Improvement Trust PLD 1972 Lah.
458.
4. Section 13-A, prescribed that "the new owner shall send an intimation of such transfer in writing by registered post, to the tenant of such building or rented land " The rule enunciated by the Privy Council in Nazir Ahmad v. K.E. AIR 1936 P C 253 that "where a power is given to do a certain thing in a certain way, the thing must be done in that way, or not at all", has to be applied if the provision of the law is meant for public benefit and not for the benefit of an individual, for it is open to an individual to waive a benefit given to him by law. It is commented in Maxwell's Interpretation of Statutes, 12th Edition, at page 328. that:-- "Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy."
' One of the examples cited to Stylo Shoes Ltd. v. Prices Tailors Ltd. where a question arose whether a notice to determine an existing tenancy under the Landlord and Tenant Act, 1954 had not been served "by leaving it for (the tenants) at (their) last known place of abode in England" as required by section 23(1) of the Act. The tenants there had in fact received the notice and had intimated to the landlords that they would not be willing to give up possession of the premises and had issued an originat ing summons for a new tenancy. It was held that the notice had been properly served and that even if it had not been duly served, the tenants must in the circumstances be taken to have waived any invalidity in the service. The same principle has been stated in Craies on Statute Law, Seventh Edition, page 270 in the following words:-- "So also if a statute simply enables a particular class of persons to do or refrain from doing some particular thing under certain circumstances, it is optional with those persons whether they avail themselves of the privilege afforded to them by the statute, or whether they waive their right of doing so."
' For the exception from this rule, it has been stated:-- "But the conditions in an enabling Act which have been prescribed for the purpose of protecting or benefiting the public cannot be dispensed with."
' In Prem Perkash v. Mohan Lal AIR 1943 Lah. 268 the criterion laid down had been "whether these prohibitions were really made for the benefit of the judgment-debtor only or in the interest of the society at large, i.e. on grounds of public policy". In the aforecited Evans' case, the majority view in the Supreme Court had been expressed in the following words:- "We are inclined, therefore, to take the view that reading the provisions of the Act as section 30 was not intended to protect private rights, for, mere allottees did not by the allotment alone acquire any right in the property but were designed as a matter of public policy to give general protection to such occupants not only as to irremovability for a reasonable period but also as to occupation upon payment of a reasonable rent."
' The other cited case of Mst. Sardar Begum related to service of notices under sections 9, 11 and 16 of the Land Acquisition Act of 1894, which can easily be held to be matter of public policy. Can we say that the provision of section 13-A was meant for the good of the society at large and not for the benefit of a party in a particular case governed by that provision? Section 13-A presupposes knowledge on the part of the tenant as to the previous landlord and his liability to pay rent to that landlord. It is only when a new owner steps in by sale, gift, inheritance or in any other manner, that the tenant has to be notified of the change so that he pays rent to the new landlord instead of the old one. The position under the Displaced Persons (Compensation and Rehabilitation) Act is different because there the tenant does not know 'the owner until upon the issuance of the P.T.D. a notice as prescribed under section 30 has been served on him. There is thus a marked distinction between the two provisions. I am, therefore, not inclined to the view that the provision of section 13- A of the Ordinance is anything but for the benefit of the tenant. That being so, he can waive or agree to waive it. This view finds support from the case of Nazar Hussain v. Aslam Shah already relied upon by the Tribunals, where it has been held:- " Section 30, on the other hand, provides that the normal procedure under the West Pakistan Urban Rent Restriction Ordinance or under the Transfer of Property Act shall come into force only if a notice in accordance with the provisions of subsection (1) of that section is served upon the person in possession and a default is committed by him in the payment of the rent within 90 days of such service. The analogy of that section cannot therefore, be applied to a case under section 13-A If in a given case the tenant is proved to know about the death, acknowledges the heir or the transferee as the landlord and starts paying rent to him, a fresh tenancy will be deemed to have been created in favour of the person who has received the property by devolution or transfer."
' The finding on the first issue is, therefore, in accordance with law."
' In S.A.O. No.346/77, Mst. Aziz Begum v. Faiyaz Butt NLR 1980 Civil (Lah.) 134 which has also been relied upon by Rent Controller in his order, ejectment application was itself regarded as sufficient notice in terms of section 13-A of the Ordinance. Leave to appeal has been granted by the Supreme Court to consider the correctness of the view taken in NLR 1980 Civil (Lah.)
134. Leave granting order is reported in the same volume of NLR at page 554 i.e. Fayyaz Butt and another v. Mst. Aziz Begum NLR 1980 Civil (SC) 554. Service of notice, therefore, is not essential for the creation of relationship of landlord and tenant but is correlated only to default in payment of rent. As regards whether eviction petition itself can be regarded and be treated as a sufficient notice, in place of a notice required under section 13-A of the Ordinance, speaking with immense respects, to the views of the learned Single Judge I venture to take a different view. A tenant in possession of a rented building or land, cannot be evicted otherwise than in accordance with the provisions of Punjab Urban Rent Restriction Ordinance, 1959. A landlord who seeks to evict his tenant on a ground of default has to apply to the Controller. Order of eviction against tenant can only be passed if it is proved that the tenant has neither paid nor tendered rent due by him in respect of the building or rented land within the stipulated period as envisaged by section 13 subsection (2)(i) of the Ordinance. This shows that the necessary default in payment of rent must precede the application for eviction of the tenant. Default accruing during the pendency of the proceedings cannot in law be made a ground of eviction in those very proceedings. Necessary cause of action, therefore, must exist before an application for eviction of a tenant is made on ground of default. If, eviction petition is itself treated as a notice under section 13-A of the Ordinance, the beneficial purpose behind the newly enacted provision will evaporate. However, if the eviction petition contains other grounds, besides default section 13-A will not at all affect its maintainability. Language employed in section 13-A of the Ordinance makes it clear that it only deals with one situation namely, the question of default in payment of rent. Any ejectment application based on ground other than default in payment of rent is not at all affected by the provisions of section 13-A of the Ordinance.
Principle of law called in aid in certain precedents to save the proceedings from the defeat, if cause of action matures during the pendency of the cause may not, with respects, appropriately apply to a rent application based on ground of default. There is no credible evidence available to show that the tenant Mst. Qaisar Zamani had kr.owledge of the change of ownership and despite that had defaulted in payment of rent. When appeared in post remand proceedings, she deposed on oath that no such notice was ever served upon her. Learned counsel for the respondents however, relying on certain precedents asserted that notice under section 13-A of the Ordinance was sent to the tenant at her admittedly correct address under registered cover acknowledgment due. The statement of Muhammad Asghar Postman A.W.1 has been relied upon to show that he carried the notice to the tenant but found the house locked. Closed Registered Envelope was marked as Exh.Al. None cared to open it in Court. It is a matter of guess as to what it contains.
Normal practice in order to prove a notice is to call someone to say that the copy filed is true copy prepared in the usual course and then to open the cover in Court to find out as to whether the contents of the cover were original of the copy tendered. As regards presumption of service under section 114 of the Evidence Act read with section 27 of General Clauses Act, suffice it to say that Mst.
Qaisar Zamani appeared in Court and stated on oath that she did not receive the notice intimating change of transfer. In the circumstances of the case particularly when there was no evidence as to what was contained in the Registered envelope Al, it can be safely observed that no such notice as was required by law was served upon her. Any admission of tenancy, under the present landlady in a suit filed for recovery of rent subsequent to the ejectment proceedings would not avail the respondent landlady. Rent Controller proceeded on the assumption that the ejectment application was itself a sufficient notice. Learned District Judge in appeal without discussing evidence found that a notice had been served. Perusal of the record and the evidence adduced does not show that any notice under section 13-A of the Ordinance was served upon the writ petitioner. The case, as presented, therefore, did call for further inquiry, under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959. Ejectment orders passed on the basis of a finding of preliminary issue relating to relationship of landlord and tenant are thus not sustainable. Writ petition is allowed, impugned orders dated 15-2-1984 and 7-5-1984 are set aside and the case is remitted to the Rent Controller, Gujranwala to decide the controversy on merits after framing necessary issues arising from the pleadings of the parties and affording a reasonable opportunity to the parties to lead evidence in support of the issues framed on merits. Learned Rent Controller must complete the proceedings within a period of four months, from the date of the receipt of the order passed by this Court. Office is directed to send a copy of the order to the Rent Controller without least delay.
Parties in the circumstances of the case are directed to bear their own costs.