This is a second appeal against the orders, dated 30-11-1978 and 12-2-1980 passed by the learned Joint Civil Judge and Rent Control ler, Hyderabad and the learned IIIrd Additional District Judge, Hyderabad, repectively, in Rent Case No.290/77 and Rent Appeal No.47/79, respectively. The brief facts leading to the filing of the above appeal are that the late Mir Ghulam Mohammad filed rent application on 22-8-1977 on two grounds namely, default in respect of shop No.3 for the period commencing from December, 1976 and for shop No.4 for the period commencing from May, 1977, and subletting. The above application was resisted by the present appellant. The learned Rent Controller on the basis of the pleadings of the parties framed the following 3 issues:-
(1) Whether the opponent No.1 is wilful defaulter in payment of rent from December, 1976?
(2) Whether the opponent No.1 has subletted the disputed premises to opponents Nos.2 to 6 without permission of the applicant?
(3) What should the order be?
It seems that during the pendency of the rent application late Mir Ghulam Mohammad expired and his only surviving legal heir Mir Fateh Muhammad was brought on record by an order dated 19-5- 1978 passed by the learned Rent Controller. In support of the above rent application the respondent examined his Munshi and the attorney, whereas the appellant examined himself and one Ahmed Saeed. The learned Rent Controller after hearing the parties allowed the above rent application by his order dated 30-11-1978 on the ground of default, but rejected the second ground of subletting.
The appellant being aggrieved by the above order filed Rent Appeal No.47-79 which was dismissed by the above order dated 12-2-1980. The appellant being aggrieved by the above two orders has filed the present second appeal.
2. (a) In support of the above appeal Mr. Akhtar Mahmood Khan, learned counsel for the appellant has submitted that in view of the judgment of the Supreme Court in the case of Dr. Syed Waris Ali Tirmizi v. Mst. Liaqat Begum reported in 1980 SCMR 601 and in the case of Mrs. Alima Ahmed v.
Amir Ali reported in PLD 1984, SC 32, he cannot press into service before this Court the alleged practice of making payment in lump sum. However, his contentions as against the above two orders were as follows:-
(i) that the learned Rent Controller could not have held that default was proved for the period from June, 1977, as 60 days period had not expired by 22-8-1977 on the date of filing of the above rent application.
(ii) that since the original landlord late Mir Ghulam Mohammad had expired during the pendency of the above rent application and as the legal heir was brought on record by the above order dated 19-5-1978, the appellant was entitled to a notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the late Ordinance).
(iii) that since no notice under Section 13-A was served and as the arrears including for the above default had already been paid by 19-5-1978, there could not have been any default on the part of the appellant.
(b) On the other hand Mr.Jathenand, learned counsel for the respondent has urged as follows:-
(i) that the observation of the learned Rent Controller that even if the default was to be computed from June, 1977 is not a conclusion and secondly, it is against a factual position on record.
(ii) that since the present respondent was prosecuting the same cause of action which had accrued to his predecessor-in-interest i.e. late father, there was no requirement of service of a notice under section 13-A of the late Ordinance.
3. It will be appropriate to take up the above first contention of Mr. Akhtar Mahmood Khan. It may be observed that the default pleaded in rent application for shop No.3 was for the period commencing from December, 1976, whereas for shop No.4 for the period from May, 1977. As observed hereinabove the above rent application was filed on 22-8-1977. It may be advantageous to reproduce hereinbelow the learned Rent Controller's observation relied upon by Akhtar Mahmood Khan, which reads as follows:- "The learned counsel for the opponent has pointed out that rent for shop No.8 for the month of December, 1973, June, 1973 and September, 1971 has been received twice vide Exhs. 24/22 and 23, Exhs., 24/24 and 26, Exhs., 24/25 and 27, respectively. In the same way rent for November, 1973 has been received twice for shop No.4 vide Exh.24/28 and 30. The learned counsel for applicant in reply to this position has conceded that if it has been done he is prepared to adjust the same but even after adjustment of this excess rent the opponent is defaulter in payment of rent from June, 1977 for both the shops for which he has given no excuse."
' I have gone through the record and find that the appellant had filed certain rent receipts in order to indicate that there was double payment of rent 3 times in respect of shop No.3 and one double payment in respect of shop No.4, the detail of which is as follows:-
(i) Exhs. 24/25 and 24/27 two rent receipts for September, 1971.
(ii) Exhs. 24/24 and 24/26 two rent receipts for the month of June,1973.
Exh.24/22 and Exh.24/23 two rent receipts for the month of December, 1973.
4. From the evidence on record it seems that the appellant under Exh.24/20 had paid rent to the respondent in respect of above shop No.3 upto February, 1977. If the appellant is allowed adjustment of above 3 months excess rent paid by him at Rs.65 P.M., it would square off the rent for the months of March and April, 1977 and partly for the month of May, 1977 as the rent in 1976 & 1977 was Rs.75 P.M., whereas the excess rent was paid at Rs.65 P.M.
As regards the shop No.4, it may be observed that the default was claimed for the period commencing from May, 1977 there was double payment of one month only at Rs.65 P.M. under rent receipts Exhs. 24/28 and 24/30. The adjustment of the above excess amount would not square off the rent for the entire month of May, 1977 as the rate of rent was Rs.75 P.M. Even after adjusting grace period of 60 days in terms of section 13 of the late Ordinance, there would still be default for part of month of May, 1977 in respect of both the above shops. The concurrent finding of the two Courts below cannot be said to be perverse or not supported by evidence, and, therefore, cannot be interfered with in a second appeal.
5. As regards the remaining two contentions of Mr. Akhtar Mahmood Khan on the question of a notice under section 13-A of the late Ordinance, it may be advantageous to reproduce hereinbelow the above section, which reads as follows:- "Section 13-A. Where the ownership of a building in the possession of a 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."
It may be noticed that under the abovequoted section, it has been provided that where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatever from one person to another person, the new owner is required to 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 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached.
6. Mr. Akhtar Mahmood Khan has referred to the case of Sabu Mal v. Kika Ram alias Hemandas reported in 1973 SCMR 185, the case of S.Abdul Majid v. Akhtar Mohammad and 2 others reported in PLD 1974 Quetta 13 the case of Mst. Razia Butt v. Ghulam Raza reported in PLD 1979 Quetta 157, the case of Mrs. Suleman v. Abdul Ghafoor reported in 1980 CLC 316, the case of Muhammad Siddique v. Muhammad Ilyas, reported in 1979 CLC 720 and the case of Sh.Mohammad Hussain v. Mst. Mubina Begum and another reported in 1979 CLC 42.
In the above first 5 cases relied upon by the learned counsel for the appellant the rent proceedings were filed by the new owner either without serving a notice under section 13-A of the late Ordinance or before the expiry of 30 days period from the date of intimation on the ground of default and, therefore, it was held that the ground of default was not sustainable in view of the above deeming provision contained in above section 13-A. The above five cases have no application to the instant case. In the present case the alleged default was committed during the lifetime of late Mir Ghulam Mohammad who had filed the case on 22-8-1977. But after the institution of the above rent case, he expired and the respondent was impleaded in his place as the sole legal heir being the only son. If the cause of action, which had accrued to late Mir Ghulam Mohammad, had survived after his death, the respondent was entitled to prosecute the case from the stage, at which it was at the time of the death of his father. It has not been disputed that factually the cause of action had survived. In this view of the matter, there was no question of serving a notice under section 13-A of the late Ordinance in a pending ejectment case on the ground of default. However, if late Mr.Ghulam Mohammad would not have filed the above rent case during his lifetime, the respondent could have filed the same on the ground of default without serving of a notice under section 13-A of the late Ordinance, and want of service of above notice would have been fatal to the ground of default.
7. In the 6th case relied upon by Mr.Akhtar Mahmood Khan, learned counsel for the appellant, a learned Single Judge of this Court had taken the view that the parties cannot contract out of notice provided for in section 13-A of the late Ordinance, in view of the famous case of Evans reported in PLD 1964 SC 536 on section 30 of the Displaced Persons (Compensation & Rehabilitation) Act , 1958.
The above 6th case has no application to the present case, secondly, contray view has been taken by the Hon'ble Supreme Court in inter alia in two cases, namely in the case of Khuda Bakhsh v.
Mohammad Yaqoob etc. -reported in 1981 SCMR 1979 and the case of M/s. Everyday Pictures Ltd. v. Chamman Begum reported in 1983 SCMR 282. In my judgment in the case of Amar Lal and another v. Moulvi Muhammad Saeed reported in 1983 CLC 1000, I have followed the above Supreme Court case of 1981.
8. For the aforesaid reasons, the appeal has no merit, it is, therefore, dismissed with no order as to costs. Since the subject-matter are two shops I will grant 4 months time to the appellant on the condition that he shall continue to deposit rent in terms of the learned Rent Controller's order failing which the respondent shall be entitled to file an execution application before the expiry of the above period of 4 months. Furthermore, in case, the appellant fails to hand over the vacant possession of the shops in question on the expiry of the above period of 4 months, the learned Rent Controller shall issue a writ of ejectment without further notice to the appellant.