Aggrieved by the order of the learned XIIth Senior Civil Judge and Rent Controller, Karachi, whereby he has dismissed the application for ejectment made by the appellants under section 13 of Sind Rented Premises Ordinance, 1979, for the eviction of the respondent on the grounds of default in payment of rent, the appellant-landlord has filed this appeal.
2. It was on 8-4-1984, that the appellant filed the ejectment application alleging that the respondents had failed to pay the monthly rent at the rate of Rs.75.00 per month from October, 1979 till the date of filing of the application in respect of Shop No. 4 of the building known as Geelani Building standing on Plot No. M.R.1/37, Marriot Road, Karachi. The respondents filed written statement in denial of the claim. In support of their case the respondents produced one Abdul Rashid Qureshi, who filed his affidavit-in-evidence as an attorney and rent collector of the appellants; whereas the respondents produced the affidavits of Mr. Abbas Hussain, a partner of the respondents, and one Mohammad Yousuf, the son of the above named Abbas Hussain. The learned Rent Controller by her order dated 29-4-1984 dismissed the application. The operative part of the order reads as under:-- "The applicants claim that the opponents have not paid the rent from October, 1976. And whereas the contention of the opponent is that they had remitted rent through cheque No.C/8774161 dated 12-3-1977 vide Exh.33 which was not cashed by the applicants. On coming to know about it,' in April, 1977 they remitted the rent by two separate money orders Exhs.24 & 25 which were also returned as refused vide Exhs.26 & 27. Thereafter they started depositing it in the Court in Miscellaneous Rent Case No. 1436/77. The rent through cheque was sent in March, 1977, when this case was filed on 8- 4-77 of course, the rent was remitted through money order and deposited in the Court after filing of this case but record shows that the opponents were served in the month of August, 1977 as Vakalatnama on their behalf has been filed on 10-8-77. Therefore, remittance of rent by M.O. And depositing of it in the Court after filing of this case will not prejudice the defence of the opponent.
With regard to notice a/s 13(a) of the Ordinance, 1959, it is settled law that notice under the above section is to be given mandatorily but admittedly in this case, it has not been done. Apart from this, the learned counsel of the opponent has contended that the A.W. 1 has no authority to depose on behalf of the applicant as neither he has produced the power of attorney and nor any resolution passed by the trustee to this effect. In this connection he has referred me to the decision reported in P.L.D. 1982 Karachi page 71. I find force in his arguments and as such I am of the opinion that his evidence could not be considered. In any case, after taking into consideration, the evidence available on the record, I hold that the opponent has not committed any willful default and that no notice a/s 13(a) of the Ordinance 1959 has been given and thus for the above reason and for the reason that the applicant has failed to produce any authority to give evidence, I hold that this application is not maintainable."
3. Mr. H.A. Rahmani, learned counsel for the appellants made the following contentions before me.
(i)The remittance by money orders (Exhs. 24 & 25) after the filing of the ejectment case or even commission of default could not erase the default. In support of his contention he placed reliance on several decisions of which I may refer only two i.e. 1972 SCM R 262 and 1987 CLC 364).
(ii)In terms of Section 13-A of the Ordinance only an intimation was to be given to the tenants/respondents regarding the transfer of ownership in favour of the appellants. The respondents had not only the intimation of transfer of proprietary ownership rights in the disputed property in favour of the appellants but they had admittedly paid rent for the period commencing from 1972 to September 1976 as is evident from the various receipts Ex.8 onwards filed in the case.
Abbas Hussain, the witness of the respondents, in his cross-examination has also admitted this fact. In these circumstances the non-service of section 13-A notice was not fatal to the proceedings. In this respect, he placed reliance on the following authorities:(a) PLD 1979 Lah. 210, (b)
1981 SCM R 179, and PLD 1982 Kar. 770 which has been upheld by the Hon'ble Supreme Court in 1983 SCM R 282.
(iii) The learned Rent Controller has wrongly held that the evidence of the appellants' witness, Abdul Rashid Qureshi could not be considered on account of non-production of the power of attorney or any resolution passed by the Trustees to this effect. A.W. Abdul Rashid had deposed that he is the attorney of the appellants and also that he is appellants' Rent Collector for the last 8/10 years. The non-production of the power of attorney was thus of no material consequences.
(iv) The ejectment application was filed by the appellants under their own signatures. The appellants' above-named witness, being the Rent Collector, was personally in know of the facts of the case and hence his evidence could not be discarded on the ground of non-production of the Power of Attorney Admittedly the rent receipts Ex. 8 to Ex. 20 were issued under his signatures as a Rent Collector.
(v) The power of attorney has also now been filed with an application (CMA-1919/84) in this Court shortly after the filing of the appeal.
(N.B.-This application has been allowed by a separate order of date passed thereon).
4. Mr. Abdul Sattar Memon, learned counsel for the respondents, on the other hand, contended: (i)that the ejectment application has been dismissed by the learned Rent Controller on merits as well as on legal grounds as is evident from the impugned order. She has categorically stated that "in any case, after taking into consideration the evidence available on record, I hold that the opponent has not committed any willful default and no notice under Section 13-A of the Ordinance, 1959 had been given and thus for the above reason and for the reason that the applicant had failed to produce any authority to give evidence. I hold that this application is not maintainable."
(ii)that-the non-service of notice under section 13-A of the Ordinance was fatal to the proceedings.
In support of his contention he cited a single Bench decision of this Court in the case of Mrs. Mariam Fernandez v. State Life Insurance Corporation of Pakistan (1981 CLC Kar. 591).
5. Having heard the arguments of the learned counsel for the parties and going through the deposition of the witnesses and the impugned order, I have reached the conclusion that the impugned order cannot be sustained for reasons more than one. In the first instance, having paid the rent to the appellants for several years, after the property having been purchased by them, the non-service of formal notice under Section 13-A of the Ordinance was of no material consequence.
The rejection of the application, inter alia, on this ground was little justified. Secondly, the evidence of A. W. Abdul Rashid Qureshi has been wrong discarded from being considered for want of the production of Power of Attorney. In this behalf she failed to appreciate that this witness was also a Rent Collector and had deposed about the facts out of his personal knowledge.
6. The observations made by the learned trial Court with regard to the effect of non-service of notice under Section 13-A of the repealed Ordinance, 1959, the learned counsel for the appellant has, in my opinion, rightly pleaded that it was not fatal to the case in the facts and circumstances of the case inasmuch as the respondents had been paying the rent to the appellants right from October; 1972, onwards until September, 1976 through Receipts Ex.8 to Ex.19 (appearing at pages 27 to 49 of the lower Court record), the rent receipts issued by the appellants to the respondents.
There can, therefore, be no question of the respondents having no intimation about the transfer of the property in question in favour of the respondents.
Since the learned Rent Controller, has already observed, has not recorded her finding on the question of default in ,payment of rent after duly scrutinizing the evidence prevalent on record and giving her reasons therefore. I, therefore, think it proper to set aside the impugned order and remit the case to the learned trial Court for fresh order according to law, after considering they pleadings and the evidence on record.
8. In the result, the appeal succeeds and is allowed as indicated above. The parties are, however, in the circumstances of the case, left to bear their own costs.)
M.Y.H./ M-754/K Case remanded