1. ' This appeal has been filed challenging the order passed by the 1st Senior Civil Judge/Rent Controller Jacobabad whereby the application filed by the present appellant under section 15 of the Sindh Rented Premises Ordinance, 1979 was rejected.
2. ' Briefly the facts are that the present appellant claiming to have purchased the property in dispute which is the first floor, being C.S.No,77/A and C.S.No,78 situated in Ward No,2 at Jacobabad through a registered sale-deed, gave a notice under section 18 of the above said Ordinance, which notice was replied by the present respondent on 22-7-1985 wherein the respondent denied the relationship of landlord/tenant and also that the rent of the premises was Rs,300 but he claimed the same to be Rs,70 per month. The present appellant then on 31-8-1985 filed the application for ejectment against the respondent on the ground of default for the period 20-5-1985 to 20-8-1985 and also on the ground of personal requirements to open his office as he is a practicing Advocate of Jacobabad. The written objections were filed by the present respondent wherein he took the same plea that the rent of the premises was Rs,70 per month and not Rs,300 per month and that he had tendered the rent at the said rate of Rs,70 per month to the applicant in person which was refused by the present appellant and thereafter he started depositing the same in Court. The respondent also denied the claim of the appellant that he required the premises for personal requirement in good faith. The learned trial Court was pleased to frame the issues. However, in the meanwhile the present respondent moved an application under section 10 of the above said Ordinance on 25-1-1986 which application was allowed on 9-12-1986 and therafter the present respondent started depositing the rent in Court at the rate of Rs,70 per month. The parties filed their affidavits in evidence in support of their respective claims. Appellant also filed affidavit in evidence of two witnesses namely Gurmukhdas and Amanullah. Opponent also filed affidavit in evidence of two witnesses namely Varandamal and Naroomal. The learned Rent Controller finding the two issues in favour of respondent rejected the application.
3. ' I have heard Mr.Naraindas D.Kapoor, Advocate for the appellant and Mr.Ghulam Muhammad Durani, Advocate for the respondent. The learned counsel for the appellant has submitted that the Rent Controller has erroneously answered the issue of default against the present appellant holding the application for ejectment to be premature. He has submitted that in the present case notice under section 18 of the Sindh Rented Premises Ordinance was sent on 6-7-1985 which was replied by the respondent on 12-7-1985 and the present rent application for ejectment was filed on 31-8-1985 i.e, 40 days after the reply of the notice whereas the provisions of section 18 of the Sindh Rented Premises Ordinance provide that in case of service of notice under this section if the tenant pays the rent within 30 days, he shall not be deemed to have defaulted in payment of rent for the purposes of section 15(2)(ii). It will be pertinent to reproduce the provisions of section 18 which reads as under:--
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 intimation of such transfer in writing by registered post to the tenant and the tenant shall not be deemed to have defaulted in the 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."
4. He has submitted that the present rent application having been filed after lapse of 30 days and present respondent having not brought any evidence on record to show that rent was tendered by him within 30 days in any of the modes as provided in section 10 of the above said Ordinance, the present respondent shall be deemed to have committed default in payment of rent and finding of the Rent Controller that the application was pre-mature would in such cases be erroneous. He has also submitted that even in case where cause of action matures after filing of the rent case and service of its notice on the tenant he would be liable to ejectment if he fails to tender the rent after such service. He has placed reliance on the case of Major (Retd.) Muhammad Yousaf v. Mehraj-ud- din and others 1986 SCM R 751 where it has been held:
6. On the second question also the respondents have no case. It is neither supported by statute nor any principle of law that if a notice under section 13-A of the Ordinance is not served that would amount to absence of relationship of landlord and tenant. The analogy of case-law under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is not attracted here.
5. Thus, the finding on issue of relationship has to be reversed and we do accordingly.
7. That being so, rent having admittedly not been paid after the institution of the application eviction which has also been treated as notice under section 13A the respondents were liable to be evicted. We order accordingly."
6. ' The learned counsel for the appellant has further placed reliance on the case of Sohail Ahmed v.
7. Dr.Nisar Ahmed (1989 CLC 1048) where in a case plea taken that the rent was tendered by money order it was held by the learned Single Judge of this Court that: "I have no hesitation in agreeing with the learned Rent Controller that the rent for the month of August was not paid by the appellant. With respect to the, rent for the months of September and October, 1983, the appellant's witness Tufail Ahmed states that he sent the money order. The respondent states that he never received the money order and no postman has been examined to show that the money order was delivered to the respondent. As such the default in payment of rent from 8-8-1983 to 7-11-1983 viz. For three months is proved before the institution of the rent application on 19-11-1983."
8. ' The learned counsel for the appellant has also placed reliance on the case of Pakistan Art Emporium Shop v. Palace Hotel 1989 CLC 34 where it was held as under: "From the evidence adduced by the parties, and admission made by Salahuddin, Manager of the appellant it is clear that the rent for the months of November, 1983 to April 1984 was deposited in Court in lump sum. It is also an admitted position that the first deposit which was made towards the arrears of rents was made in the month of July 1984. This shows that in spite of refusal of the Rent Collector of the landlords to accept the rent the amount was neither sent by money order nor it was deposited in Court as envisaged by subsection (3) of section 10 of the Sindh Rented Premises Ordinance."
9. ' In the same case it was also held at subsequent stage as under: "From the above decisions relied upon by Mr.Gulab M.Rang, learned counsel appearing for the respondents it is clear that subsequent default till the rent was deposited in compliance with tentative order can also be taken into consideration while considering the question of defualt. Mr. Noor Muhammad, learned counsel appearing for the appellant was not able to point out any contrary decision. I am, therefore, of the considered view that subsequent default which occurred even after filing of ejectment application, till the rent was deposited could be taken into consideration, while deciding the question of default."
10. In the present case though a plea was taken in para. 6 of the written objection that the rent was tendered by money order which was refused by the appellant but no offer was made by the respondent to produce the money order coupon or endorsement of refusal nor postman was examined. In these circumstances I have no hesitation in concluding that the present respondent has committed default in payment of rent who is liable for the consequences. I therefore, set aside the findings of the learned Rent Controller on this issue which is answered in favour of the appellant/landlord to the effect that the respondent has committed default in payment of due monthly rent as contemplated under provision of section 15(2)(ii) of the said Ordinance.
11. ' The learned Advocate for the appellant does not press the ground raised by him challenging the finding of learned Rent Controller on second issue regarding personal requirement, the said finding is maintained.
12. ' In the result of the above discussion and in view of the findings on issue of default I allow this appeal and order the respondent be ejected from the premises in dispute within a period of four months from the date of this order.