1. ' This appeal has been filed challenging the orders passed by Vth Senior Civil Judge and Rent Controller, Karachi on 4-12-1989 in Rent Case No, 1047 of 1985 allowing the application of present respondent directing the ejectment of the present appellants.
2. ' Briefly the facts leading to the present case are that the present respondent on 29-5-1970 had purchased the property being Flat No, 2, Ground Floor on Plot No,38/1, SB/3, Saddar, Karachi wherein one H. Mathew was the tenant at the rate of Rs,25 per month. On 1-6-1970 the respondent claimed to have served the said H. Mathew with the notice under section .13-A of the then applicable West Pakistan Urban Rent Restriction Ordinance, 1959 and thereafter filed the rent case for ejectment against him on the ground of default in payment of rent being Rent Case No,778 of 1971. This rent case was allowed ex parte against the said H. Mathew and ejectment order was passed.
3. Consequently the present respondent filed Execution Application No,4 of 1973. In this execution application B. Mathew the son of said H. Mathew and husband and father of present appellants intervened and moved an application to be joined as party. In this application it was pointed out that the said H. Mathew had died in the year 1960 and that the tenancy rights devolved upon his two sons, S. Mathew and B. Mathew respondents in the present rent case. On the basis of this application of B. Mathew the execution application was dismissed for the reasons that the ex parte order was obtained against the dead person. The present respondent being aggrieved, preferred first appeal before the District Court being First Appeal No, 68 of 1979. During this period on 25-10- 1982 the said B. Mathew, the predecessor-in-interest of the present appellants filed Miscellaneous Rent Case No, 4503/1982 seeking permission to deposit rent in Court and an order in the said Miscellaneous Rent Case was passed on 14-11-1982 allowing him to deposit the rent in Court.
4. Thereafter the Rent Case No,1002/1983 was filed by the present respondent on 9-3-1983 on the ground of default from July,.1970 to February, 1983 i,e, for 152 months. On 12-4-1983 written statement was filed in this rent case by deceased B. Mathew in which also he had taken the plea of non-service of notice under section 13-A. The present respondent then on 16-4-1983 withdrew her First Appeal No, 68 of 1979 on the ground that she had already filed afresh rent case for ejectment on the ground of default. The present case was then transferred to another Court wherein it was renumbered as Rent Case No, 1077/1988. In the rent case one Faquir Muhammad, Attorney of the applicant had filed his affidavit-in-evidence on 194-1984 and produced certain documents, he was cross-examined on 9-5-1987 and had closed his side. However, in the meanwhile, the said B.
5. Mathew expired and his L.Rs, i,e, the present appellants were joined in the case. The said Faquir Muhammad then filed his another affidavit-in-evidence on 30-8-1988 and was cross-examined on 23-91989 and closed his side. On behalf of the present appellants the appellant No,1, the widow of said B. Mathew filed her affidavit-in-evidence and she was cross-examined. The only point for determination in the case was whether the opponents had committed default in payment of rent as alleged. The learned Rent Controller after hearing the Advocates for parties was pleased to pass the impugned order.
6. ' I have heard the learned counsel for the appellants as well as the respondent. The learned counsel for the appellants has submitted that the previous case was filed against a dead person, and, therefore, the fmdings, if any, of that case would not be binding on the present appellants. He has further submitted that the present appellants or their ancestor B. Mathew was the actual tenant in the said premises being the heir of deceased H. Mathew, who had died in the year 1960 and, therefore, the present respondent was required to serve a notice under section 13-A of the then applicable West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance. He has further submitted that in absence of service of any such notice the present appellants or their predecessor-in-title, B. Mathew cannot be said to be a defaulter in payment of rent. He has referred to the affidavit-inevidence of the present appellant No,1 and has submitted that she has specifically denied that any such notice was received by her or by the said H. Mathew or B. Mathew. As against this Mr. Aftab Kizilbash, Advocate for the respondent has submitted that in the first instance admittedly the notice was served on the said H. Mathew or if he was dead, the inmates of the house who were his descendants. He has then submitted that even if it be treated that the notice was not served then also the present appellant has admitted that she had learnt in the year 1973 that the rent was not paid since the year 1970 and the same fact was within the knowledge of her husband B. Mathew, who had made an application to be joined as party in the execution application. The learned counsel has submitted that since the appellant or her husband having knowledge of non-payment of rent and having acquired the knowledge of purchase of property by new owner were liable to tender the rent to him and having failed to do so they can be termed as wilful defaulters in payment of rent and the question of non-service of notice under section 13-A of the Ordinance in such cases would not rise. He has also referred to a photostat copy of the receipt filed alongwith the rent case in the lower Court which is dated 4-7-1970 showing the rent for the month of June, 1970 having been received from H. Mathew. From this receipt, it is argued by the learned counsel for the respondent that the heirs of H. Mathew had paid the rent in the name of H. Mathew to the new owner for the month of June, 1970, therefore, they cannot raise this plea.
7. ' I have examined record and proceedings of the lower Com t. It may be observed that in the cross- examination on the first affidavit filed by the attorney of the applicant he has very specifically said "it is incorrect to say that applicant had not served any notice of transfer of property to opponents.
8. Dr. Shahid Haroon was the owner of disputed property before applicant. It is correct to say that from 1970 to 1983 I have had not given any notice to opponent informing of transfer of property".
9. This shows that he is blowing hot and cold in the same breath. Again in the cross-examination on his second affidavit this attorney has stated that he had served such notice on the deceased tenant but he states he cannot produce the postal or acknowledgement receipts. In this cross- examination he has submitted that he did not serve any notice on the legal heirs of deceased H.
10. Mathew. In his cross-examination in the first affidavit-in-evidence he has also admitted that he cannot produce any documents to show that the said H. Methew had paid rent of disputed premises to him or his signatures are shown therein. Thus in view of above admissions in cross- examination of the attorney of the present respondent two points stand established. Firstly, that the service of notice under section 13-A has not been proved as the same is denied by the appellants and their ancestors and admittedly no notice is served on the heirs of the deceased tenant.
11. Secondly, the rent receipt filed by the applicant alongwith rent case for the month of June, 1970 showing the payment to the present respondent is also not proved. This receipt has not been mentioned in affidavit-in-evidence nor the appellants have been confronted with this receipt.
12. Rather, admittedly the rent was paid by H. Mathew to the respondent. Even otherwise, a rent receipt is supposed to be in possession and power of the tenant and not the landlord. In this view of the matter on factual side of the matter it stands proved that neither the notice was served on the tenant or his descendants nor they had paid rent at any time to the new landlady.
13. ' Now, I take second point involved which is that if the knowledge of B. Mathew in the year 1973 in the present case would render him liable to pay the rent. It will be pertinent to reproduce section 13-A of the Ordinance, which was then applicable as under:-- "13-A. Tenant to be informed in case of transfer of ownership.--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, whatsoever, 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."
14. ' This provision very specifically requires that notice shall be served and only, if the tenant defaults in payment of rent within thirty days after service of notice, he would become liable to ejectment.
15. Of course, it has been held by our Superior Courts in various cases that in case the tenant acquires knowledge of the change of ownership that would be deemed to be sufficient notice and even after that if the tenant fails to pay the rent he would be liable to ejectment. Mr. Aftab Kazilbash, Advocate for the respondent has placed reliance on the case of Muhammad Azim and others v.
16. Sheikh Muhammad Nawaz and others (PLD 1966 SC 182). The facts of this case are different from the present case inasmuch as in the cited case of Hon'ble Supreme Court the proceedings had started during the lifetime of the tenant on the ground of default and he had been served in the case and acquired knowledge of certain orders of the Court before he died. The other case relied upon by the learned counsel is that of Sheikh Muhammad Hussain v. Mst. Mubeena Begum (1979 CLC 42). This case rather goes against the present respondent as in this case it was held that notice under section 13-A of the Ordinance was mandatory and that there was no room for agreement outside statute between the transfree landlord and tenant. He has also placed reliance on the case of Israr Ahmed v. Abdul Aziz (1987 CLC 336). In this case also the proceedings were instituted against the tenant, he was served with the notice of the proceedings of rase and that was held to be sufficient notice. The last case cited at Bar is that of Ibrahim v. Sahra and 7 others (1988 CLC 2086). In this case it was held that tenant would not be deemed to be a defaulter in case he deposits the rent in spite of the fact that no notice under the Ordinance was served on him. The facts of the present case are different from the facts of the above-cited cases as in the present case though the knowledge was acquired by the deceased B.Mathew in the year 1973 and he applied to be joined as party in execution application but the same was opposed by the landlady and then the matter was sub judice in appeal. However, before the rent case was filed against the said B.Mathew the predecessor-in-title of the present appellants, he had already started depositing rent in the said Miscellaneous Rent Case. From these facts it appears that notice of the rent proceedings against B.Mathew was after his depositing the rent in Court and, therefore, even if this notice of institution of proceedings against him be taken to be sufficient notice as contemplated under section 13-A of Ordinance, he could not be said to have committed default in payment of rent as he still had a period of thirty days available but he had deposited the rent in Court much earlier. In this view of the matter the default, if any, on behalf of the present appellants would be only a technical default. I will, therefore, accept this appeal, set aside the order passed by the Rent Controller and dismiss the rent case filed by the present respondent. There will be no order as to costs.