' SALEEM AKHTAR, J.---This appeal with the leave of this Court is directed against the judgment of the learned Judge in Chambers whereby ejectment application filed by the appellant was dismissed.
2. The appellant purchased' the property bearing Flat No, 2, Plot No,38/SB/3, Saddar, Karachi on 29- 5-1970 and after allegedly serving notice on the tenant (M. Mathew) under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, instituted Rent Case No, 778 of 1971 on the ground of default in payment of rent. The ejectment case was decided in favour of the appellant ex parte.
However, when the appellant applied for execution of the order in the above rent case the respondents' predecessor B. Mathew intervened and claimed that the tenant M. Mathew died in 1960 and tenancy rights devolved on him and his brother S. Mathew. The execution application of the appellant was consequently dismissed by the Rent Controller as the order of ejectment was obtained against a dead person. The appellant preferred an appeal against order of the Rent Controller rejecting his execution application, before the District Court being 1st Rent Appeal No, 63 of 1979. During the pendency of the above Rent Appeal, B. Mathew made a miscellaneous application (No,4530/1982) before the Rent Controller seeking permission to deposit the rent in Court which was allowed on 14-11-1982 and consequently he started depositing the rent in Court.
The appellant then filed another rent case against the predecessor of the respondent alleging default in payment of rent from July 1970 to February 1983. The respondents' predecessor took the plea of non-service of notice under section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959. The Rent Controller after hearing the parties allowed the ejectment application, holding the respondents defaulters in payment of rent. On appeal the learned Judge in Chambers reversed the order of the Rent Controller and held that no notice under section 13-A was served by the appellant either on respondents' predecessor or on the respondents and as such they could not be held to be defaulters.
3. The learned counsel for the appellant contended that as the respondents were aware of the proceedings and also the fact that the disputed property has been purchased by the appellant, the fact that .No notice under section 13-A was served was not sufficient to dismiss the ejectment application. On the other hand the learned counsel for the respondents contended that the appellant was not accepting the respondents and their predecessor as tenants and before the ejectment application was filed, they had deposited the entire' rent from July 1970 to the year 1982 on 16-11-1982. From the aforestated facts and contentions certain undisputed facts surface on record; that no notice under section 13-A was served on H. Mathew, the original tenant or after his death on B. Mathew. The appellant had obtained order of ejectment against H. Mathew and when execution application was filed B. Mathew objected to it as it was obtained against a dead person, namely, H. Mathew who had died in the year 1962. On this objection the execution application was dismissed on 8-1-1979. At that time B. Mathew, the predecessor-in-interest of the respondents was a party to the proceedings. The learned Controller made the following observation:--- "In of the above discussion, I am of the opinion that right of tenancy in respect of case premises was in the name of H. Mathew. After his death it devolved upon his legal heirs. When the decree was passed against him he was dead. Therefore, the decree was a nullity and the intervenor, who has equal right of tenancy and has not contested the previous proceedings in this matter, cannot be estopped to raise the ground of death of H. Mathew, judgment-debtor at this stage."
The appellant filed an appeal against this order, but it was withdrawn in April, 1983. The appellant then filed a fresh ejectment case against the predecessor-in-interest of the respondents who were also made a party to it. Before this ejectment application could be decided, the respondents filed Miscellaneous Rent Case No,4503/1982 and deposited the entire rent from July 1970 to 1982 on 16- 11-1982. From the above it is clear that from the time the execution was filed and the status of the respondents' predecessor was determined by order dated 8-1-1979, they had full knowledge of the fact that the appellant is the landlady and has purchased the property. In these circumstances, when the tenant is saddled with definite information of transfer and on that basis he has acted upon it, if an ejectment case is filed on ground of default, the plea that notice under section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959 or section 18 of the Sindh Rented Premises Ordinance cannot be pressed into service. There are host of authorities of superior Courts to support this observation.
4. The learned counsel for the respondents then contended that in the facts and circumstances of the case the learned Controller should have exercised discretion in favour of the respondents because the appellant by her conduct had shown that she was not prepared to accept the respondents as tenants. Under law the Controller is vested with the discretion not to eject a tenant even if there is a finding of default, but this discretion is not to be exercised in an arbitrary, fanciful or perverse manner. There should be valid reasons to support such discretion which has to be exercised judiciously taking into consideration the facts and circumstances of the case. In the present case mere denial of appellant from accepting the respondents as tenants by itself did not entitle the respondents not to pay the rent. If they claim to be tenants and so did their predecessor-in-interest, they were obliged to discharge their duty as tenants. The primary duty of a tenant is to pay the rent regularly. There is no explanation of default for a long period from 1979 till 1982 when the rent was deposited in Court. In these circumstances, the appeal is allowed, the judgment of the learned Judge in Chambers is set aside and the order of ejectment passed by the learned Rent Controller is restored. The respondents are, however, allowed six months' time to vacate the disputed premises.
(Sd.)
' Saleem Akhtar, J.
' AJMAL MIAN, J.---I have had the advantage of reading the proposed judgment of my learned brother Saleem Akhtar, J. With due deference to him, I am unable to agree with the conclusions arrived at by him and, therefore, I wish to record my separate opinion.
2. It seems that the building in which the flat in question hereinafter referred to as the tenement, is situated was purchased by the appellant on 29-5-1970 when the late West Pakistan Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, was in force. It may be stated that H. Mathew, the father-in-law of respondent No,1 and grandfather of respondents Nos. 2 to 5, used to be the tenant of the tenement, who expired on 8-7-1962. In view of section 13-A of the late Ordinance, the respondent was under a statutory obligation to serve notice under the above provision on the tenant informing him about the above purchase and calling upon him to pay the arrears of rent, if any, and future rent. It may be advantageous to reproduce the same, which reads as follows:--- "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."
' A perusal of the above quoted section indicates that it imposes a statutory obligation on the part of a transferee of the ownership of a building either by way of sale, gift, inheritance or in any other manner, whatsoever, upon transfer of ownership of a building in the possession of a tenant or rented land, to send to the latter an intimation of such transfer in writing by registered post. It may also be noticed that it further provides that the tenant shall not be deemed to have defaulted in payment of rent for the purpose 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.
3. In the present case, there is a concurrent finding of the two Courts below that the respondent failed to prove the factum that a notice under section 13-A of the late Ordinance was served on H.
Mathew or on his legal heirs. The notice could not have been served on H. Mathew, the original tenant, as he had died in 1962 as per evidence on record, therefore, it was to be served on his legal heirs, which was admittedly not served. Be that as it may, the respondent filed Rent Case No, 778 of 1971 against H. Mathew on 2-4-1971, alleging default for the period from July, 1970 to February, 1971, and on the ground of personal requirement. An ex parte ejectment order was passed in the above rent case on 28-11-1972. After that, Execution Application No,4 of 1973 was filed by the respondent against H. Mathew for the execution of the above ejectment order, wherein B. Mathew made an application as an intervenor under section 47, C.P.C. Stating therein that his father, H. Mathew, died in Karachi in 1962 and since then he along with his brother, S. Mathew, was residing in the premises on the payment of rent to the landlady. It was further stated that the respondent/decree-holder had intentionally suppressed the above fact and obtained decree through fraud against a dead person. The learned Rent Controller, after framing issues and recording evidence, allowed the above application of B. Mathew by holding as under:- "In view of the above discussion, I am of the opinion that right of tenancy in respect of case premises was in the name of H. Mathew. After his death it was devolved upon his legal heirs. When the decree was passed against him, he was dead. Therefore the decree is nullity and the intervenor who has equal right of tenancy and has not contested the previous proceedings, in this matter, therefore, he cannot be estopped to raise the ground by death of H. Mathew judgment-debtor at this stage."
4. The appellant, instead of accepting the above order, filed F.RA. No,68 of 1979, challenging the above order. While the above appeal was pending, B.Mathew filed Miscellaneous Rent Case No,4530 of 1982 on or about 25-10-1982 and deposited rent for the period from July, 1970 to November, 1982. It appears that the respondent filed Rent Case No,1002 of 1982 on 9-3-1983 on the ground of default for the period from July, 1970 to February, 1983. After that, she withdrew her above F.RA. No,68 of 1979 on 16-4-1983.
5. The above rent case was resisted by B. Mathew inasmuch as a written statement was filed, in which it was averred that he and his family had been residing in the tenement and opponent No,2 i,e, S. Mathew had no concern with the tenement. It was also denied that there was any default. It was stated that the opponent was never served with any notice of transfer by the applicant but he had deposited the arrears of rent with the Rent Controller since 1-6-1970 uptodate. It was also stated that since then he had been regularly depositing the rent. It appears that during the pendency of the above rent case, B. Mathew expired and his legal heirs i,e, his widow and daughters, the present respondents, were brought on record in his place. The learned Rent Controller, after framing issues and recording evidence, allowed the above rent case for the following reasons:--- "In the instant case it is an admitted position that in spite of having knowledge about new landlord in the year 1979 opponent deposited the all arrears from 1970 in the year 1982 in Miscellaneous Rent Case No,4503/1982 moreover in the cross-examination opponent has admitted that in 1973 she came to know that the rent has not been paid from 1970. No explanation had been given in by the opponent as to why she had not deposited the rent in the year 1973 or 1979 when it came in their knowledge about the new owner through Ex-application filed against the original tenant, H.
Mathew the father-in-law of present opponent. Under the law the opponent cannot be absolved from the responsibility to payment of rent from such knowledge only because the required notice was not served upon them by the applicant after purchasing the property in question. The previous ejectment proceeding by the applicant against the father of deceased opponent No, 3 would be treated as notice under that section and as such he was required to pay rent within 60 days from the date of knowledge about the new owner as required by law."
6. Thereupon, the respondents filed above F.R.A. No,79 of 1990, which was allowed by the learned Judge in Chambers by recording following reasons:--- "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 appellant, he had already started depositing rent in the said Miscellaneous Rent Case. From these facts it appears that the 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 the 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."
7. After that, the above appeal was filed with the leave of this Court. The question in issue is, as to whether the judgment of the High Court under appeal is to be maintained or is it to be set aside. I am inclined to hold that the judgment under appeal does not call for interference as the learned Judge in chambers has rightly observed that the default, if any, was a technical default. As pointed out hereinabove, the appellant has failed to prove the factum that she had served a notice under section 13-A of the late Ordinance. In this view of the matter, there is no default in terms of above section 13-A. No doubt in some of the cases the superior Courts including this Court have held that filing of an application by the new landlord against his tenant may constitute a notice for the purpose of the above section. In my view, the ratio decidendi of the above cases is not applicable to the present case, as in those cases, the landlords in their applications admitted the status of the opponents as their tenants. In the case in hand, the Rent Case No, 778 of 1971 was filed against a dead person i,e, late H. Mathew and not against his legal heirs, nor they were served with the notice of the above rent case as held by the executing Court in its aforesaid order dated 8-1-1979. In this view of the matter, the filing of the above rent case cannot be treated as a notice for the purpose of section 13-A of the late Ordinance, nor the present rent case can be treated a notice for the purpose of above section 13-A as it was filed on 2-4-1971 and before the above date, the rent was already deposited by B. Mathew up to date as pointed out hereinabove. The only question which remains for consideration is, as to whether the above Rent Controller's order dated 8-1-1979 on B.
Mathew's application under section 47, C.P.C. Was sufficient to dispense with the requirement of the above notice under section 13-A of the late Ordinance. If the appellant would have accepted the above order and would not have filed an appeal against the same, in my view, the above order would have been sufficient to dispense with the requirement of service of notice under the above section. However, since the appellant had filed above appeal against the above order, which appeal remained pending till 16-4-1983 i,e, even after B. Mathew deposited the rent for the period from July 1970, to 30-11-1982 on 16-11-1982, the above order, in my view cannot be treated as a notice for the purpose of section 13-A of the late Ordinance. In any case, I am of the view that the facts of the present case were such which warranted exercise of discretion by the appellate Court in favour of the respondents, who are widow and daughters of late B. Mathew. There is no doubt that the discretion by the Rent Controller or the appellate Court is to be exercised fairly and reasonably, and not arbitrarily or capriciously. In the present case inter alia the following facts justified exercise of discretion by the learned Judge in Chambers in favour of the respondents:---
(i) No notice under section 13-A of the late Ordinance was served;
(ii) the appellant did not accept the above order of the Rent Controller dated 8-1-1979 passed upon B. Mathew's application under section 47, C.P.C. But filed the above appeal and, therefore, not accepted him as the tenant;
(iii) B. Mathew deposited the entire arrears of rent which included time-barred rent commencing from July 1970 to 30-11-1982 on 16-11-1982;
(iv) that the appellant filed the above rent case on 9-3-1983 i,e, after B. Mathew deposited the above arrears of rent. In fact first time the appellant accepted B. Mathew and his brother as the tenants by filing the above rent case;
(v) the respondents are widow and daughters of deceased tenant and, therefore, if discretion could be exercised either in favour of the appellant or the respondents, the learned Judge in Chambers was justified in exercising the same in favour of the respondents;
(vi) the appellant's attorney in his cross-examination stated that: "It is correct that after filing this case I came to know that the opponent his been depositing rent in Court from 25-10-1982. If it would in my knowledge about the said deposit prior to filing of this case then I would never file this Case."
8. I am, therefore, of the view that the learned Judge in Chambers has not exercised discretion in favour of the respondents arbitrarily or capriciously, but the above discretion was warranted by the facts of the present case as highlighted hereinabove and, therefore, does not call for interference by this Court. I may also observe that a landlord's conduct should also be above board. He cannot be allowed to blow hot and cold in the same breath. Since the appellant was not willing to accept B. Mathew as her tenant which she demonstrated by filing an appeal against the above order dated 8-1-1979, she is also instrumental in contributing towards the alleged default.
9. The upshot of the above discussion is that, in my view, the appeal is liable to be dismissed, with no order as to costs.
(Sd.)
Ajmal Mian, J.
SAJJAD ALI SHAH, J.---After hearing learned counsel for the parties at length and perusal of record with their assistance, I find myself in total agreement with the view taken by my learned brother Saleem Akhtar, J. In his judgment to the effect that after acquiring knowledge about change of ownership in the execution proceedings, no explanation is furnished for nonpayment of rent from 1979 to 1982 by the tenant and in the circumstances restoring order of ejectment passed by the learned Rent Controller. I am unable to subscribe to the view that in this case default for such a long period of time should have been condoned and treated by the learned Rent Controller as technical and discretion should have been exercised by him in favour of the tenant because of the peculiar facts and circumstances of this case in which no attempt was made by the statutory tenants to perform their duty by paying the rent after change of ownership after acquiring such knowledge.
2. In the execution proceedings which were filed in 1973 (Execution Application No, 4/73) by the landlady B. Mathew filed objections under section 47, C.P.C. On the ground that he was in possession of disputed premises and behind his back order of ejectment was obtained against dead person. His objections were accepted and in consequence execution application was dismissed on 8-1-1979. Now question arises why B. Mathew did not pay rent to the landlady or deposit rent in the Court after dismissal of execution application on 8-1-1979 and deposited arrears of rent from 1970 to 1982 for the first time in the name of landlady in M.R.C. Case No, 4503/82 on 14- 11-1982. Mr. Munawar Malik, counsel for the respondents replied that against dismissal of execution application, landlady filed Miscellaneous Appeal No, 68/79 which was withdrawn by her on 16-4- 1983, hence the tenants were waiting for the result of that appeal in spite of the fact that there was no stay order in favour of the tenants not to pay or deposit the rent. Mr. Malik did not assert that withdrawal of appeal by the landlady was by way of compromise and landlady accepted B.
Mathew as tenant because had it been so, she would have accepted rent from him for 12 years and need would not have arisen for depositing the arrears in the Court in Miscellaneous Rent case.
3. Technically speaking, knowledge about change of ownership can be attributed to the tenants when they entered execution proceedings and filed application of objections under section 47, C.P.C. In the year 1973 which was allowed and in consequence execution application was dismissed on 8-1-1979 after a lapse of 7 years. There is no explanation whatsoever for not tendering rent to the landlady or depositing the same in the Court alongwith filing application for objections in execution proceedings in 1973 which remained pending for 7 years and was allowed in 1979. In such circumstances I feel satisfied that it is not a fit case for treating default as technical and the learned Rent Controller rightly exercised his discretion against the tenants and in favour of landlady by ordering ejectment.
4. In consequence of my agreeing with my learned brother Saleem Akhtar, J. This appeal is allowed and order of ejectment is restored and respondents are allowed 6 months time to vacate the premises.
(Sd.)
' Sajjad Ali Shah, J.
' ORDER OF THE COURT ' In view of the majority opinion, this appeal is allowed and order of ejectment is restored and respondents are allowed six months' time to vacate the premises.
(Sd.)
' Ajmal Mian, J.
(Sd.)
' Sajjad Ali Shah, J.
(Sd.)
' Saleem Akhtar, J.