' This Constitutional petition is directed against the orders dated 2-12-1990 and 30-9-1989 passed by the learned Additional District Judge, Rawalpindi and the Rent Controller, Rawalpindi, respectively ordering petitioner's ejectment from the disputed shop.
2. Brief facts of the case are that Muhammad Nawaz, respondent No,3 sought petitioner's eviction from the property bearing Nos.474 to 477, situated at Zafar-ul-Haq Road, Rawalpindi on the ground of default and bona fide requirement for reconstruction. The petitioner took up an objection that there was no relationship of landlord and tenant between the parties which was upheld and the by the learned Rent Controller on 28-3-1988. The learned Rent Controller held that in the absence of notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, no relationship of landlord and tenant existed between the parties. Subsequently the petitioner again filed an ejectment application on 26-4-1988. The learned Rent Controller passed an order for deposit of rent on 12-9-1983. The petitioner applied for review of the said order on the ground that there was no relationship of landlord and tenant between the parties but the same was not disposed of on merits. Accordingly the petitioner deposited the rent in compliance with the order passed under section 13(6) of the Ordinance. The Rent Controller framed the following issues on the pleadings of the parties:--
(1) What is the actual monthly rent of disputed premises? O.P.P.
(2) Whether the petition is not proceedable in view of objection raised by the respondent No,3? OPR
(3) Whether the respondent is wilful defaulter? OPP
(4) Whether the petitioner needs the property in dispute bona fide for reconstruction? OPP
(5) Relief."
' No issue was framed about existence of relationship of landlord and tenant between the parties.
The learned Rent Controller recorded evidence of the parties, accepted the application and ordered petitioner's eviction vide order dated 30-9-1989. The petitioner's appeal was dismissed by the learned Additional District Judge, Rawalpindi vide judgment dated 2-12-1990.
3. The petitioner's learned counsel strenuously urged that there was no relationship of landlord and tenant between the parties. He emphasised that the earlier order regarding absence of relationship of landlord and tenant between the parties was never challenged and attained finality.
Hence the subsequent ejectment petition filed just after about a month of dismissal of the first ejectment petition was not competent in law. He further urged that the learned Rent Controller ought to have framed an issue about existence of relationship of landlord and tenant between the parties. In support of his contentions, he placed reliance on Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24. On the other hand the learned counsel for the respondent No,3 urged that notice under section 13-A of Ordinance was not sine qua non for creating relationship of landlord and tenant between the parties. Such a notice was relevant only for deciding the issue of default.
He placed reliance on the case of Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185. Further submitted that the ejectment petition itself amounted to notice and failure to pay rent rendered the petitioner liable to eviction. In this connection he placed reliance on the following judgments:--
(1) Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24.
(2) Qaisar Zamani v. Rashida Begum and 2 others 1985 CLC 596.
(3) Maj. Retd. Muhammad Yousuf v. Mehraj-ud-Din and others 1986 SCMR 751.
(4) Muslim Commercial Bank v. Karim. Bakhtiar and another PLD 1988 Quetta 1.
(5) Mst. Khurshid Begum v.Qamar-ud-Din and others 1990 CLC 1463.
4. There is considerable force in the arguments raised by the respondent's learned counsel.
Existence of relationship of landlord and tenant between the parties was not dependent upon service of notice under section 13-A of the Ordinance. If a tenant positively gets knowledge of transfer or change of ownership from the name of the original landlord in favour of the new one, he cannot object to the competence of the eviction petition even on the ground of default. In the case of Sabu Mal relied upon by the learned counsel for respondent No,3, the Hon'ble Supreme Court was pleased to hold as under:- "The term "landlord" is defined in clause (c) of section 2 of the Ordinance 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 the trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter 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 rented building or land. Such being the case the relationship of landlord and tenant came into existence between the parties before us once the rights, title and interest of the original landlord were transferred, to the respondent under the sale effected in May, 1964. This tenancy was in no way dependent upon the service of a notice under section 13-A of the Ordinance."
' In the case of Qaiser Zamani it was held that strict compliance of notice under section 13-A cannot be insisted upon by a tenant, if it is found that he had, otherwise, knowledge of change of ownership. Even an ejectment petition embodying clear averments regarding change of ownership amounts to notice contemplated under section 13-A of the Ordinance. In the case of Syed Azhar Imam Rizvi the Hon'ble Supreme Court was pleased to hold as under :- 'The receipt of the copy of the ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of section 13-A of the Ordinance."
' It was also held in the said precedent that the tenant was not entitled to withhold payment of rent till an order for deposit of rent under section 13(6) of the Ordinance was passed. A similar view was expressed in Maj. (Retd.) Muhammad Yousaf's case.
5. In the first ejectment petition, filed by respondent No,3 on 25-9-1986, it was clearly averred that the petitioner had purchased the disputed property from the previous owners on 4-12-1984. The said application remained pending for about 1-1/2 years and was dismissed (on an erroneous view of the law) on 28-3-1988. The second ejectment petition was instituted on 27-4-1988 in which it was clearly stated that respondent No,3 had purchased property bearing Nos. 474 to 477-K from previous owners through a registered sale-deed dated 4-12-1984. The respondent claims that he had also issued a notice under section 13-A of the Ordinance to the petitioner on 2-4-1987. Even if the notice was not actually served on the petitioner, he cannot deny that he had gained knowledge of change of ownership through the two ejectment petitions instituted by respondent No,3.
However, he did not pay or tender rent due from him and waited till an order for deposit of rent was passed. Thereafter he deposited arrears of rent on 12-9-1988 and started depositing monthly rent as well. The object of section 13-A is to apprise the tenant of change of ownership and to enable him to pay rent to the new landlord to protect his tenancy rights. The petitioner had positively gained knowledge of change of ownership and committed wilful default in payment of rent. The argument that the first application was dismissed on the ground that there was no relationship of landlord and tenent between the parties, hence the petitioner was not bound to pay rent till an issue about existence of relationship of landlord and tenant was struck and decided in favour of the landlord, has no force in the circumstances of the case. The learned Rent Controller, as observed above, had taken an erroneous view of the law in holding that relationship of landlord and tenant did not exist between the parties as notice under section 13-A of the Ordinance was not served on the petitioner. Moreover, the two ejectment petitions containing clear averments of change of ownership amounted to due notice as held by the Hon'ble Supreme Court in the case of Syed Azhar Imam Rizvi and Maj. (Retd.) Muhammad Yousaf referred to above. Hence the petitioner could not legally take shelter behind the earlier order dated 28-3-1988 passed by the learned Rent Controller for attacking the existence of relationship of landlord and tenant between the parties.
Hence the Courts below have rightly ordered petitioner's ejectment holding him to be a wilful defaulter.
6. I find no merit in this petition which is dismissed leaving the parties to bear their own costs.