AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 14-11- 1992 passed by a learned Single Judge of the High Court of Sindh in First Rent Appeal No, 261 of 1989 filed by the present respondents against the dismissal of their application by judgment dated 11-1- 1989 of the learned IIIrd Senior Civil Judge and Rent Controller (Central Karachi) in Rent Case No, 335 of 1988, allowing the same by reversing the above judgment of the learned Rent Controller and ordering the appellant's ejectment on the ground of default.
Leave to appeal was granted to consider the contention of the learned counsel for the appellant that in view of the factum that notice under section 18 A of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, dated 27-2-1984 was received by the appellant after he had already deposited the advance rent, the learned Judge in Chambers was not justified in holding that the appellant had committed default.
2. The brief facts are that the appellant under lease agreement dated 30-9-1981, hereinafter referred to as the Lease Agreement, had taken on rent at Rs,800 per month southern portion of Bungalow No, 43-C, Block-VI, Federal B. Area, Karachi-38 hereinafter referred to as the suit premises for a period of eleven months, expiring on 30-8-1982. It appears that under clause 1 of the Lease Agreement the appellant undertook to pay monthly rent in advance by 10th of every month regularly. It seems that S. Karim Haider s/o Mir Fayaz Hussain, the owner of the suit premises, expired on 12-12-1981 leaving behind the respondents as the legal heirs. It is the case of the respondents that under section 18 of the Ordinance they sent intimation through their notice dated 30-12-1981 under Registered Post, however, this has been denied by the appellant. Be that as it may, the respondents sent another notice dated 17-1-1983 under section 18 of the Ordinance intimating about the death of the owner, and calling upon the appellant to pay the arrears of the rent. Since there was no response, the respondents served a notice dated 27-2-1984 through their Advocate upon the appellant stating therein that in spite of receipt of the above notices he had not paid the arrears of the rent. It was also alleged that the appellant had also committed other breaches mentioned therein. The notice was responded to by the appellant's Advocate through letter dated 24-3-1984, in which it was averred that the appellant had not received any earlier notice. It was also stated that the rent was already deposited up to 31-12-1984. The respondent's Advocate was asked that his clients should obtain Letter of Administration. After that the above rent ease was filed in April 1984 on the grounds of default, conversion of the use from residence to industrial, impairing materially the value and utility of the premises and nuisance.
The above application was resisted by the appellant inasmuch as it was denied that the appellant had committed any default or has converted the use without the permission. The allegation of impairing the value or utility of the suit premises was also denied and so also the commission of nuisance.
On the basis of the pleading of the parties, the learned Rent Controller framed following five issues:-- "(1) Whether there exists relationship of landlord and tenant?
(2) Whether the opponent failed to pay the rent as alleged?
(3) Whether any of the terms of the tenancy were infringed by conversion to a user other than for which the premises was let out?
(4) Whether the value or utility of the premises has been materially impaired and whether any nuisance has been caused to the neighbours as alleged?
(5) What should be the order?
After recording evidence and hearing the parties issue No,1 was decided in the affirmative in view of the service of notice dated 27-2-1984. The other issues were decided against the respondents.
As regards default, it was held that except notice dated 27-2-1984, no other notice was served on the appellant and as before the service of the above notice, the rent was already deposited up to 31-12-1984, there was no default.
The respondents being aggrieved by the above judgment filed above F.R.A. The learned Judge in Chambers reversed the finding on the question of default but concurred with the findings of the learned Rent Controller on the other issues. However, in view of the reversing of the finding on the question of default, the learned Judge in Chambers through the judgment dated 14-11-1992 allowed the appeal and granted the ejectment. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above contention of his learned counsel.
3. In support of the above appeal, Mr. A. Aziz Khan, learned AOR appearing for the appellant, has vehemently contended that the learned Judge in Chambers was not justified in holding that the appellant had committed default.
4. On the other hand Mr. S.M. Noorul Hassan, learned ASC appearing for the respondents, has urged as follows:- "(1) That since admittedly the appellant was using the suit premises as Garment Manufacturing Factory instead of residence, there was admitted breach of the terms of tenancy and hence two Courts, particularly the High Court, were not justified in not allowing the ejectment on the above grounds.
(2) That factually the appellant had committed four defaults prior to his acquiring knowledge about the death of the owner and, therefore, the respondents were a entitled to press into service the above defaults.
(3) That the intimation sent on 17-1-1983 deems to have reached in normal course and, therefore, the finding of the learned Judge in Chambers that there was default, was in consonance with law."
5., Before taking up the above contention of the learned counsel for the appellant, Mr. A. Aziz Khan, it will be appropriate to take up the first two contentions of Mr. Noorul Hassan, learned counsel for the respondents, Adverting to the above first contention, it may be pertinent to refer to rule 22 of Order XLI, C.P.C.
Which reads as follows:-- "22.--(1) Any respondent; though he may not have appealed from any party of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow
(2) Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal shall apply thereto.
(3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule?
A perusal of the above-quoted provision of the C.P.C. Indicates that a respondent who may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below but may take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or on his pleader of notice of the day fixed for hearing for the appeal or within such further time as the Appellate Court may see fit to allow.
The above first contention of Mr. S.M. Noorul Hassan is founded on the above provision of the C.P.C.
The question, therefore, arises as to whether in an appeal filed under section 21 of the Ordinance, recourse can be made to the above provision of the above C.P.C. In this regard it may be pertinent to refer section 20 of the Ordinance, which provides as follows:- "20.--(1) Subject to this Ordinance, the Controller and the appellate authority shall, for the purpose of any case under this Ordinance, have powers of a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of only the matters, namely:--
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) compelling production or discovery of documents;
(c) inspecting the site; and
(d) issuing commission for examination of witnesses or documents."
A plain reading of the above-quoted section 20 of the Ordinance shows that all the provisions of the Civil Procedure Code have not been made applicable to the proceedings under the Ordinance, but the Controller and the Appellate Authority i,e. High Court have been given powers of a Civil Court under the C.P.C. For the purposes specified in the above-quoted clauses (a), (b), (c) and (d).
In this view of the matter, the provisions of rule 22 of Order XLI, C.P.C. Which is applicable to an appeal against a decree cannot be invoked in aid by the learned counsel for the respondents. The position was somewhat different when a second appeal was provided to the High Court under the Late West Pakistan Rent Restriction Ordinance and provisions of C.P.C. Were made applicable to such appeals.
6. As regard the above second contention "that the appellant had committed four defaults prior to his acquiring knowledge about the death of the owner and, therefore, the respondents were entitled to press into service the above defaults" it may be observed that in support of his above submission Mr. S.M. Noorul Hassan has invited our attention to the statement of deposits and defaults given by the respondents at page 3 of their concise statement, which reads as follows:-- Date of deposit of rent in BankAmount Rs,Period to which rent pertainedDetails of Default Remarks 11-3-82 9,792 1-1-82 to 31- 12-8229 days default for (1) 1 day default for rent of February 1982.First Notice under section 18 was sent on 30-12-1982.
11-3-83 4,896 1-1-1983 (1) 29 days default to 30-6-83 for rent of January, 1983.Second Notice under section 18 was sent on 17-8-1983 2-11-83 4,896 1-7-1983 to 1- 12-83(1) 84 days default to 1-12-83 for rent of July, 1983(1) Tenant admitted default in cross-examination. (2) 53 days default for rent for August, 1983. (3) 23 days default for rent for September.(2) High Court found tenant at default for rent in respect of this period.
31-1-84 9,792 1-1-84 to 31-12- 8421 days default for 31-12-84 rent for January, 1984.Rent Controller found tenant at default for rent for 5 days.
According to Mr. S.M. Noorul Hassan as under clause 1 of the Lease Agreement the rent was payable by 10th of each month in advance, the appellant had committed above four defaults for the periods mentioned in Cloumn 4. He has also submitted that though the default of 29 days is mentioned in respect of the second deposit made by the appellant but factually the default is for 54 days. In furtherance of his above Submission, he has referred to the case of Abdul Rauf v. Nawab Ali and 3 others (PLD 1986 Karachi 117) and the case of Muhammad Azim and others v. Sh. Muhammad Nawaz and others (PLD 1966 SC 182). In the above first case a learned Single Judge of the High Court has, inter alia, held that default committed by a tenant during the tenancy of previous landlord would subsist for the benefit of subsequent landlord as well, whereas, in the above second case this Court, inter alia, has held that default committed by a deceased tenant was a ground upon which his legal representatives as tenants could be evicted.
The above cases have no application to the present case inasmuch as the ,above alleged four defaults had taken place after the death of the owner who expired who expired on 12-12-1981 as stated above and the above first alleged default, had taken place in 1982. We may observe that a distinction is to be drawn between a default which is committed during the ownership or lifetime of the previous landlord and the one which is committed after the transfer of ownership by virtue of sale, gift or inheritance. In the normal course a successor-in-interest will be entitled to press into service default committed by a tenant during the ownership of lifetime of the previous landlord but in the latter case. The default can be pleaded in terms of section 18 of the Ordinance.
7. This, leads us to the contention of the learned counsel for the appellant and counter-submission by the learned counsel for the respondents as to question of default. In this behalf, it may be advantageous to reproduce section 18 of the Ordinance, which reads as follows:-- "18. 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 payment of the rent for the purpose of clause (ii) of subsection 20 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 18 indicates that where the ownership of a premises in possession of a tenant has been transferred by 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 D the tenant shall not be deemed to have defaulted in payment of rent for the I purpose of clause (ii) of subsection (2) of section 15 of the Ordinance, if the rent due is paid within 30 days from the date when the intimation should, MI normal course, have reached the tenant.
8. In the case in hand the respondents have not been able to prove that they had in fact sent intimation dated 30-12-1981 through registered post. However, they have been able, to prove the factum that they had sent intimation in writing through registered post on 17-1-1983 at the address of suit premises but the same was not received as the Postal Authority E found no person living by the appellant's name. It may be stated that a copy of the above notice and the certificate of Postal Authorities are on record as Exh.A-5/4 and Exh.A-5/5 at pages 67 and 68 of the paper book.
According to the learned counsel for the appellant the above intimation cannot be treated as an intimation in terms of section 18 as admittedly it was not received by the appellant, wherean, according to learned counsel for the respondents, the above intimation was sent at the suit premises with correct address and, therefore, the same is deemed to have reached in normal course. At this juncture, it may be pertinent to point out that if factually the appellant had no knowledge about the death of the owner till he received respondents advocates above notice dated 27-2-1984, there was no plausible reason for not depositing of the rent in terms of clause 1 of the agreement i,e. Monthly rent in advance by 10th of each month, even if we were to hold that the deceased owner had directed the appellant to deposit monthly rent in his account number in the Bank at Karachi. The above-quoted statement of deposit from the respondents concise statement shows that the above deposits were not in terms of above clause 1 of the Agreement and there were defaults as pointed out by the learned counsel for the respondents. However, since we have held that after the ownership is transferred on account of sale, gift, inheritance or by any other mode, above section 18 of the Ordinance will be attracted to the case. The basic question which needs consideration is as to whether the intimation dated 17-1-1983 can G be treated as. An intimation under above section 18 of the Ordinance. In this regard, it may be pertinent to point out that above section 18 of the Ordinance does not speak of actual service of receipt of intimation by a tenant which is the requirement under subsection (1) of section 14 thereof in respect of a notice provided therein but it requires a new owner to send intimation of the transfer of ownership by a registered post. It also provides that if the tenant pays due rent within 30 days from the date when the I intimation should, in normal course, have reached, he shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of section 15 of the Ordinance.
The above section seeks to be for the benefit of the new owner as well as for the tenant. The portion of the above section, which does not provide for the actual service or receipt of H intimation by a tenant appears to be beneficial to the new owner, whereas the portion which by fiction of law because of incorporation of a deeming provisions erases default committed after the transfer of ownership, but prior to the posting of intimation about it seems to be for the advantage of the tenant.
It may be observed that a landlord in the absence of any contrary agreement is entitled to address his communication at the demised premises. In the present case since the respondents sent above intimation dated 17-1-1983 about their having become owners by virtue of inheritance through registered post as provided under the above section 18 of the Ordinance, it shall be deemed to have reached, when the intimation should, in normal course have reached the appellant. The factum that it was not delivered because the appellant was not found at the demised premises cannot be pressed into service by the appellant to his advantage. If the appellant had no notice about the death of the deceased owner till the receipt of the respondents Advocates above notice dated 27-2-1984 as contended by him, he committed 4 defaults as pointed out by the learned counsel for the respondents by not depositing rent in terms of the lease agreement. It may be mentioned that if a tenant has no knowledge about the transfer of ownership, he remains liable to pay rent regularly in terms of the lease agreement and/or the Ordinance. Since the above 4 defaults would have been deemed to have been erased by virtue of section 18 of the Ordinance if the appellant would have tendered due rent within 30 days in terms thereof; the above intimation dated 17-1-1983 in like manner shall be deemed to have reached when intimation should, in normal course have reached the appellant.
9. The upshot of the above discussion is that the above appeal has no merits. It is dismissed with no order as to costs. However, the appellant is granted six months time from today on the condition that the appellant shall continue to pay rent regularly, failing which the respondents shall be at liberty to file execution application before the expiry of the above period of six months. Furthermore, in case the appellant fails to hand over the possession of the suit premises upon the expiry of the above period of six months, the learned Rent Controller shall issue a writ of ejectment without further notice to the appellant.