AJMAL MIAN, J.---The above appeals are with the leave of this Court against the common judgment dated 30-4-1989 passed by a learned Single Judge of the High Court of Sindh in F.RA.
Nos. 325 of 1987 and 326 of 1987, filed by the appellants against the orders of ejectment dated 22- 2-1987 passed by the learned VIth Senior Civil Judge and Rent Controller, Karachi (West), on the grounds of default and personal requirement in Rent Cases Nos. 4197 of 1985 and 4198 of 1985, dismissing the same and maintaining the above ejectment orders on the ground of default only.
Leave to appeal was granted to consider, whether the two Courts below .Were justified in granting ejectment order on the ground of default in respect of the period prior to the purchase of the property by the respondent.
2. The facts to be noted are that the respondent purchased the building in which the two suit shops are situated on 14-2-1983 from its previous owner. The respondent served a notice under section 18 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, upon the appellants about the above purchase. In response to the above notice, each of the appellants sent a Pay Order amounting to Rs, 110, being the rent for the months of February and March, 1983, alongwith a reply to the above notice. Thereupon, the respondent through her Advocate sent another notice dated 10-7-1983 to the appellants. In the notice addressed to the appellant in the above first appeal, it was pointed out that he was in arrears with effect from May, 1982, i,e, from a date prior to the date of purchase of the property. A photostat copy of an authority letter dated 15- 2-1983 from the previous owner in favour of the respondent for collecting the rent for the above period, was also annexed. The Pay Order was accordingly returned with the demand that the appellant should clear the entire arrears of rent. The notice addressed to the appellant in Civil Appeal No,182-K of 1990 contained the same averments as were made in the notice addressed to the appellant in Civil Appeal No, 181-K of 1990, except that the period of arrears of rent mentioned therein was with effect from November, 1982 and not May, 1982. He was also sent a photostat copy of the above authority letter given by the previous owner in favour of the respondent. His Pay Order was also returned with the demand to clear the arrears for the above period commencing from November, 1982.
3. After that, the respondent filed aforesaid rent cases on 27-11-1985 on the above two grounds. The same were resisted by the appellants. The learned Rent Controller, after framing the issues, recording of evidence, and hearing of the parties, allowed the above rent cases on both the grounds by the aforesaid orders. Against the above orders, the appellants filed aforesaid F.RAs in the High Court, which were disposed of by a learned Judge in chambers by the above common judgment under appeal, whereby the finding on the ground of personal requirement was set aside but the finding on the question of default was concurred with. Thereupon, the appellants filed petitions for leave to appeal, which were granted to consider the above question.
4. In support of the above appeals, Mirror Abdur Rashid, learned Advocate Supreme Court appearing for the appellants, has vehemently contended that in view of sections 8, 55(4)(a), 55(6)
(a) and 109 of the Transfer of Property Act, 1882, hereinafter referred to as the Act, the respondent was entitled to recover rent from the date of the purchase and not for the period prior to the date of purchase.
' On the other hand, Mr. Rasheed A. Razvi, learned Advocate Supreme Court appearing for the respondent, has contended, firstly that the above provisions of the Act are not applicable as the previous owner had authorised the respondent to recover the rent through an authorisation letter, and secondly the right to eject on the ground of default is a distinct right from the right to recover arrears, and that the former runs with the property and hence the respondent was entitled to maintain the above rent cases on the ground of default even if it is to be held that she was not entitled to recover the arrears.
5. In support of his above submission, Mirza Abdur Rashid, learned ASC for the appellants, has referred to the above provisions of the Act and some case-law. It may be observed that section 8 of the act inter alia provides that unless a different intention is expressed or necessarily implied, a transferor of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. It further provides that such incidents include, where the property is land, the casements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth. Whereas clause (a) of subsection (4) of section 55 inter alia lays down that the seller is entitled to the rents and profits of the property till the ownership thereof passes to the buyer. It may also be observed that clause (a) of subsection (6) inter alia provides that a buyer is entitled, where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of the property and to the rents and profits thereof. Whereas the first proviso to section 109 of the Act lays down that "Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee."
6. From the above provisions of the Act, it is evident that a transferee/purchaser of an immovable property is entitled to rent/profit from the date of the transfer of ownership in the property to him and not from a date prior to the above date.
' Mirza Abdur Rashid has referred to the following cases in furtherance of his above submissions:--
(i) Poongavanam Pillai v. Subramanya Pillai and another AIR 1951 Madras 601;
(ii) Bhogilal Tarachand Javeri and others v. Jethalal Motilal Kumbhar AIR 29 Bombay 51;
(iii) Muthu Hengsu v. Netravti Naiksavi AIR 1920 Madras 386;
(iv) Muhammad Ishaq through his Legal Heirs v. S. Khurshid Alam PLD 1989 SC 353;
(v) Babu Bhai Habib Bhai v. Bhagwandas Jagannath AIR 1967 Madhya Pradesh 143;
(vi) Prem Govindram Sajnani v. H.M Methwani AIR 1974 Gujarat 140; and
(vii) Muhammad Anwar and others v. Mst. Balqees Begum and others 1984 CLC 1506.
7. The above-cited cases are in line with the above provisions of the Act. There cannot be any cavil to the proposition that in the absence of an express provision in the sale-deed or assignment deed authorising the purchaser/transferee or the assignee to recover the arrears of rent/profit of the period prior to the transfer of the property in his favour, he cannot claim the same. It is also a settled law that the right to recover arrears of rent is an actionable claim (chose of action) which is assignable by execution of an instrument independently from the transfer of the property in favour of a person other than the purchaser/transferee of the property. In the instant case, it is an admitted position that the sale-deed does not contain any express provision entitling the respondent to recover the arrears of rent in respect of the period prior to the date of registration of the sale-deed. However, Mr. Razvi has relied upon the following para. Of the sale-deed in order to contend that by virtue of the above para., the right to recover arrears of rent was also transferred, which reads as follows:- "That the Vendor doth hereby convey, sell, assign and transfer the said property with all the construction thereon alongwith all rights, title and interests and easements and or appurtenance to the said property in favour of the Vendee absolutely TO HAVE AND TO HOLD the same with all rights, easements and ways and things connected thereon."
A perusal of the above-quoted extract from the sale-deed clearly indicates that "all rights, title and interests, easements and or appurtenances" are relatable to the property which run with the property, whereas the right to recover arrears of rent does not necessarily run with the property, as it is an actionable claim which can be separated and separately assigned in favour of a third person.
8. Then, it was contended by Mr. Razvi that the previous owner of the property in question issued an authorisation letter dated 15-2-1983 in favour of the respondent authorising her to recover the arrears from the appellants and, therefore, in any case, by virtue of the above authority letter, the respondent was entitled to recover the arrears of rent. In this behalf, it may be pertinent to observe that since the right to recover arrears was not assigned to the respondent through the sale-deed, it could not have been subject-matter of an ejectment proceeding, as the right to recover the arrears of rent was an actionable claim in terms of section 130 of the Act and, therefore, a suit could have been filed in respect thereof if the assignment of the same was in accordance with law.
9. Having held that there was no assignment of the arrears of rent by the previous owner of the property in question in favour of the respondent under the sale-deed, the question arises, whether ejectment could be sought on the ground of default in respect of the above period by the respondent. It seems to be a well-settled proposition of law that if during the pendency of the ejectment proceedings on the ground of default the property is sold, the purchaser/transferee can continue to prosecute such proceedings for his benefit. In this behalf, reference may be made to the following cases:--
(i) Messrs Adil Brothers Karachi Ltd. v. Messrs Amin Art Press and another PLD 1976 Karachi 53;
(ii) Muhammad Hafeez v. Muhammad Suleman and another 1979 CLC 757;
(iii) Zahoor Ahmed Qureshi v. Syed Ijaz All Rizvi etc. 1980 CLC 1223;
(iv) Muhammad Ishaque v. Abdul Hague and 2 others 1982 CLC 665;
(v) Arshad Mahmood Siddiqui v. Muhammad Haroon 1984 CLC 1750;
(vi) Abdul Rauf v. Nawab Ali and 3 others PLD 1986 Kar. 117;
(vii) Dr. M.B. Anklesaria v. Azizuddin Najmai 1984 MLD 119; and (viii)Khuda Bux and another v. Teekoomal and another 1986 CLC 1923.
10. However, in the present case, the ejectment proceedings on the ground of default for the period in question were not pending when the property was sold by the previous owner in favour of the respondent and, therefore, one can urge that the ratio decidendi of the above cases cannot be pressed into service by the respondent. The question, whether the respondent could maintain the ejectment proceedings on the ground of default for the period prior to the purchase, is to be decided with reference to the provisions of the Act (i,e, The Transfer of Property Act) and the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance.
10-A. The legal position under the Act seems to be that in order to file an ejectment proceeding on the ground of default in payment of rent, there should be an express covenant in the lease to pay rent with the proviso that in default, the lessor would have the right of re-entry. In the absence of such a covenant, an action for ejectment cannot be sustained. In this regard, reference may be made to the following observations of Hamoodur Rahamn, C.J. In the case of Haji Anwar and another v. Haji Jamil and two others 1971 SCMR 806 "19. The question, therefore, that arises for consideration is as to whether a condition of the nature provided for by clause 3 of the agreement of the 8th of June, 1955, is merely a personal agreement or a covenant running with the land. Strictly speaking, this question is not very relevant for the purposes of the present case, since there is no question now of the forfeiture of the lease. The only question is as to whether there could be a mandatory injunction for demolishing the alleged unauthorised constructions. But since this question has been raised, it has to be pointed out that under the Transfer of Property. Act the word 'condition' used in clause (g) of section 111 does not carry the same sense as a covenant under this section would entitle the landlords to forfeit the lease if it is coupled with an express stipulation for re-entry. The general rule of construction is that a breach of a condition does not involve a forfeiture unless the lease expressly so provides. Thus it there is an express covenant in the lease to pay rent as also proviso for re-entry, then non- payment of rent will support a forfeiture, but in the absence of such an express proviso, forfeiture cannot be enforced."
Since in the present case, there is no written lease or lease agreement, 1 there is no express covenant of the nature referred to hereinabove. In this view of I the matter, resort cannot be had to the provisions of the Act.
11. We may now revert to the provisions of the Ordinance. In this behalf, reference may be made to section 18 of the Ordinance, which reads as follows:- "18. Change in ownership.--Where the ownership of a premises, in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an transfer in writing by registered post, to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimation should, in normal course have reached the tenant,"
A perusal of the above-quoted section indicates that upon the change of owership of a premises, in possession of a tenant on account of sale, gift, inheritance or by any other mode, the new owner is obliged to send an intimation of such transfer in writing by registered post to the tenant and that the tenant shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant.
' In the present case, 'the respondent in fact served a notice upon the appellants under the above provision of the Ordinance and in response whereof the appellants did tender rent within thirty days for the period commencing after the date of purchase by the respondent. But the above rent was not accepted by the respondent on the plea that, the same did not include rent for the period prior to the purchase. Since I have held hereinabove that the respondent was not entitled to recover the arrears of rent for the period prior to the purchase, as a corollary, it must follow that the rent for the above period was not due in terms of above section 18 of the Ordinance and, therefore, non-payment or tender of the same cannot be considered a default in terms of clause (ii) of subsection (2) of section 15 of the Ordinance.
12. However, in the present case, the learned Rent Controller has held that the appellants have also committed default in respect of the period commencing after the purchase of the premises by the respondent. It may be advantageous to reproduce relevant portion from one of the Rent Controller's orders as the same are identical, which reads as follows:-- "The opponent has admitted that he was served with notice under section 18 of the Sindh Rented Premises Ordinance therefore he remitted rent for the months of February and March, 1983, by pay order. But such was not acknowledged by applicant, therefore he remitted rent for April, 1983. When pay order of rent of February and March, 1983, was not acknowledged by applicant by pay order, then why he did not tender rent of February and March, 1983 through M.O. He only tendered rent for the month of April, 1983, through M.O. It means opponent has committed default in payment of rent during the ownership of the applicant. Hence in these circumstances I am of the view that opponent has miserably committed default in payment of rent with effect from May, 1982 to March, 1983."
13. The High Court has not dilated upon the above aspect. I would, therefore, set aside the judgment of the High Court and would remand the case to it to re-hear the appeals in the light of the observations contained herein. The above appeals are allowed with no order as to costs in the above terms.