1. ' The appellant has impugned the order dated 16-4-1988 passed by Vth Senior Civil Judge and Rent Controller, Karachi (West) in Rent Case No,255/88, whereby the eviction of appellant has been directed from premises consisting of two rooms on Plot No, M.II-E/85-A, Block-C, Shershah Colony, Karachi.The facts in brief as given by the respondent in his application under section 15 of Sindh Rented Premises Ordinance are that the disputed premises alongwith others were purchased by him from one Sikandar Hayat. The appellant being the occupant/tenant in the disputed premises, was asked to pay the monthly rent from November, 1982. As he failed to pay the rent, respondent filed a rent case No,4991/983 on the grounds of default, personal requirement and proposed demolition and re-construction. The rent case was dismissed by order dated 22-8-1984 for the reasons that after acquiring ownership rights of the premises in dispute, the respondent did not give notice to the appellant as required under law. It was also decided that the respondent was the landlord but for want of notice under section 18 of the Ordinance, the appellant was not held to be a wilful defaulter. The ground of demolition and re-construction was also decided against the respondent.
2. ' Thereafter, the respondent filed fresh application on 2-9-1984 on the sole ground of default, contending that rent was not paid by the appellant since November, 1982 when the respondent acquired ownership of the premises. The appellant filed written statement and challenged the maintainability of application for want of notice under section 18 of the Ordinance. It was also pleaded by appellant, that the respondent had failed to prove his title over the property. He filed certain bills showing the payment made to KMC and }MSC, and thereby tried to show that he was not a defaulter. He also pleaded that he sent rent to the respondent by money orders which was refused. The appellant filed his own affidavit-in-evidence and produced certified copy of his deposition in the earlier rent case and the copy of order dated 22-8-1984 passed in Rent Case No,4991 of 1981. The respondent filed his own affidavit-in-evidence on 7-5-1986 and produced certain bills regarding payment to KMC and to Karachi Water Board and K.E.S.C., and two notices dated 28-9-1984 and 9-9-1984 sent to him by the respondent. He also filed a copy of the reply dated 4-11-1984. The learned Rent Controller framed following points for determination:--
(1) Whether the opponent has committed default in payment of rent with effect from November, 1982?
(2) What should the order be?
3. ' On appraisal of evidence, the learned Rent Controller held appellant as defaulter and resultantly directed by ejectment, which order is impugned in this appeal.
4. ' Mr. Azizul Hassan, the learned Advocate for the appellant has contended that no notice under section 18 of the Ordinance, was sent by the respondent after the first Rent Case was dismissed and as such, the application for ejectment was not maintainable. He next contended that a money-order for Rs,150 was sent by appellant on 9-9-1984 which the respondent refused. The second remittance by pay order dated 3-11-1984 for Rs,3,600 was sent which covered entire claim of the respondent made in notice dated 28-10-1984. This pay order was received by the respondent and as such there is no default and the application for the eviction of appellant should have been dismissed. The learned Advocate referred to Ghayasuddin Ahmed v. Abdul Wali 1986 CLC 1513 where it was held, "the relationship of the parties as landlord and tenant came into existence where the title and rights of the original owner were transferred to the respondent. He cannot claim the rent which accrued to his father prior to the transfer of the property. Under the law the respondent was entitled to claim the rent due. Rent due is equivalent to due in law." He then referred to Major (Rtd.) Mohammad Yousuf v. Mairajuddin and others 1986 SCMR 751 where it was held that if a notice under section 13-A was not served it would not amount to absence of relationship of landlord and tenant. It was further held that rent not having been paid even after institution of application for eviction which was also treated as notice under section 13-A and the tenant was held liable to eviction. He then referred to Hajirabai v. Azmatullah 1988 SCMR 679. The facts of the above-referred judgment are not in any way relevant for the purpose of disposal of this appeal as the facts in the instant case are quite distinguishable.
5. ' Mr. Attaullah, the learned Advocate for the respondent has contended that the previous Rent Case No,4991 of 1983 was dismissed on 22-8-1984 but it was decided that the respondent was the landlord. He sent a notice under section 18 on 9-9-1984 which was not served and he repeated the notice on 28-10-1984 and annexed with it a copy of earlier notice dated 9-9-1984. This was receive.d by appellant and acknowledged the same while remitting Rs,3,600 through pay order.
6. The second rent case was filed on 2-9-1984 and the pay order was sent on 3-11-1984. In any case after the appellant came to know in the earlier rent case that the respondent had acquired the ownership rights of the premises in dispute, he ought to have sent rent or paid the same to A respondent and no notice under section 18 was required to be sent to appellant. He also contended that filing the rent case by the respondent was in itself a notice and failure of respondent to pay rent amounted to default and the appellant could not escape his eviction. In support of his contention the learned Advocate referred to Major (Rtd.) Mohammad Yousuf v. Mairajuddin 1986 SCMR 751 and Ejaz Hussain v. Additional District Judge, Rawalpindi and 2 others PLD 1991 Lahore 332.
7. ' I have heard the arguments of the learned Advocates, perused the evidence and the case-law referred. It is an admitted position that the respondent had filed an earlier rent case against the appellant which was dismissed on the sole ground that notice as required under law was not sent by the respondent after he acquired ownership rights. The filing of earlier rent case was itself a notice to the appellant and as held in 1986 SCMR 751, the relationship of landlord and tenant was established as the institution of ejectment petition would be treated notice under section 13-A. This judgment of the Hon'ble Supreme Court has also been referred by the learned Advocate for the appellant but on all force, it goes against the case set up by the appellant. Same view was taken in 1985 SCMR 24.
8. ' Mere denial of the appellant that he did not receive the notice under section 18 of the Ordinance, even after the dismissal of earlier rent case would not absolve him of his obligation to pay rent.
9. Moreso, when he was held to be the tenant of respondent in earlier rent case, he was under a legal obligation to pay or tender rent which he has failed to do. He is a wilful defaulter and the order of ejectment is rightly passed by the learned Rent Controller. No exception can be taken to the finding of the learned Rent Controller and the appeal is, therefore, dismissed. In the circumstances, the parties shall bear their own costs. However, the appellant is allowed one month's time from today to vacate the disputed premises.