1. ' ABDUL HAFEEZ MEMON, J.-These two connected second appeals arise out of ejectment proceedings initiated by the landlord Messrs Sadiq Traders Ltd., respondent No. 2 in both these second appeals, against his tenants Messrs Amin Art Press, respondent No. 1 in Second Appeal No. 190/68 and Messrs Statesman Weekly, respondent No. 1 in Second Appeal No. 191/68, hereinafter referred to as 'respondents tenants,' by filing two separate applications under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) on the ground of nonpayment of rent.
2. ' The case of the respondent No. 2 in both the applications was that he had purchased the building, including the premises tenanted by the respondents tenants, from its previous owner landlord Ibrahim Sultan Ujainpurwala under a registered sale-deed. The latter thereafter, informed all the tenants in the building including the respondent's tenants through a letter (Exh. A/3) and the respondent No. 2 also informed them by his own letter (Exh. A/4 about the purchase of the building by them the respondents tenants, however, did not pay rent and hence the applications against them. The respondents tenants contested the ejectment proceedings and denied to have committed default. They pleaded that they had not received any intimation regarding change of ownership and further pleaded that nobody on behalf of the respondent No. 2 had come to collect the rent from them at the premises which was the mode of payment of rent previously settled between the respondent's tenants and the previous landlord. On these pleadings, the learned Rent Controller framed similar issues in both the applications to the effect firstly, whether the respondents tenants had been duly intimated about the change of ownership of the premises and, secondly, whether they committed default in payment of rent, and, thirdly, what should the order be ?
3. ' In both the applications, the learned Rent Controller gave a finding on both the main issues against the respondents tenants holding that they had been duly informed about the change of ownership of the building but they wilfully defaulted in paying rent and ordered their ejectment by his orders dated 7-5-1965 and 16-7-1965 passed in both the applications. Being aggrieved by the orders of Rent Controllor, the respondent's tenants filed first appeals. During the pendency of these first appeals, the respondent No. 2 sold the building to the appellant Messrs Adil Brothers on 27-9- 1966 under a registered sale-deed. On coming to know of the above sale, respondent No. 1, Amin Art Press in Second Appeal No. 190/68, on 8-9-1966 filed an application under section 151, C.P.C.
4. Before the Additional District Judge urging that with the sale of the building, respondent No. 2 ceased to be landlord of the respondent No. 1 and the relationship of landlord and tenant between the respondent No. 2 and the respondent No. 1 came to an end with the result that the jurisdiction of the Rent Controller as well as of the first appellate Court over the subject-matter and the parties stood terminated and the order passed by the Rent Controller became infructuous, Appellant Messrs Adil Brothers also filed applications under Order I, rule 10, C. P. C. In both the first appeals, for being joined as respondent in the first appeals in place of the respondent No. 2 on the ground that they had acquired rights, title and interest of the respondent No. 2 in the premises which were opposed by the respondents tenants. In the process, respondent No. 2 Messrs Sadiq Traders Ltd.
5. Also filed objections wherein they opposed the application filed by respondent No. 1 Amin Art Press under section 151, C. P. C. And supported the application under Order I, rule 10, C. P. C. Filed by the appellant Messrs Adil Brothers stating that the order passed by the Rent Controller subsisted and held the field and that with the transfer of the building the benefit of the order of ejectment of the respondents tenants had also been assigned to the appellant and as such the latter were entitled to defend the appeals. The learned Additional District Judge by his orders dated 27-4-67 and 9-2- 67 dismissed the application under section 151, C. P. C. Filed by the respondent No. 1 Amin Art Press and allowed both the applications under Order I, rule 10, C. P. C. Filed by the appellants who were consequently joined as respondent No. 2 in both the first appeals before the learned Additional District Judge.
6. ' In deciding the first appeals, the learned Additional District Judge concurred with the findings of the Rent Controller on the main issues and held that the respondents tenants had been duly informed about the transfer of ownership and in spite of the knowledge, they committed default in paying rent to the respondent No.
2. He, however, formed the view that default per se did not justify ejectment of the respondents tenants and exercising his discretion under section 13 of the Ordinance, declined to order their ejectment and allowed both the first appeals, filed by the respondents tenants. Against the judgments of the learned Additional District Judge allowing both the appeals, respondent No. 2 Messrs Sadiq Traders Limited did not file any appeal but appellant Messrs Adil Brothers alone filed these two second appeals. Second Appeal No. 190/68 against Messrs Amin Art Press and Second Appeal No. 191/68 against Messrs Statesman Weekly.
7. ' Mr. Enver Adil, the learned counsel for the appellant, anticipating the objection by the opposite side, first addressed the Court on the question of the locus standi of the appellant to file these second appeals, in the absence of respondent No. 2 Messrs Sadiq Traders (respondent No. 1 in both the first appeals), filing any appeal. The learned counsel contended that on purchase of the building from the respondent No. 2 during the pendency of the first appeals, appellant acquired all rights, title, interests, benefits and advantages which the respondent No. 2 had in the building on the date of the transfer of the building, including the benefit of the orders of ejectment passed in favour of respondent No. 2 under which the latter had acquired the right to eject the respondents tenants from the building, so that when that right was adversely affected by the decision of learned Additional District Judge allowing the first appeals, he had the locus standi to file these appeals. In this connection the learned counsel referred to the sale-deed under which the respondent No. 2 had transferred and conveyed all the rights, title, interest, benefit and advantages vesting in them in respect of the building to the appellant and relied upon PLD 1961 Lah. 788 in support of his contention that default being in respect of premises, it conferred an advantage on the landlord which stood transferred to the new landlord with the transfer of the building.
8. ' The learned counsel next contended that the respondent No. 1 in Second Appeal No. 190/68 had on 8-10-1966 filed an application under section 151, C. P. C. Before the learned Additional District Judge urging that the order of the Rent Controller had become infructuous with the sale of the building by respondent No. 2 to the appellant. The appellant had also filed an application under Order I, rule 10, C. P. C. For being substituted as a respondent in both the first appeals in place of respondent No.
2. The Rent Controller dismissed the application of the respondent No. 1 and granted the application filed by the appellant and joined him as a respondent in both the appeals. These orders were not appealed against and therefore became final so that the appellant having been held to have interest in the property and having been allowed to defend the first appeal, had the locus standi to file these second appeals when orders adverse to their interest was passed in those first appeals. The learned counsel next contended that on the date of transfer of the building to the appellant, respondent No. 2 held the right of re-entry into the premises occupied by the respondents tenants by virtue of the orders of ejectment passed against the latter. This right being a legal incident of the ownership, was capable of transfer and respondent No. 2 by transferring the ownership of the premises in question shall be deemed to have transferred also the right of re- entry to the appellant within the meaning of section 6(b) and section 8 of the Transfer of Property Act, so that when that right was adversely affected, the appellant had the locus standi to file the second appeals.
9. ' On merits, the learned counsel for the appellant, first contended that the learned Additional District Judge, having concurred with the findings of the Rent Controller, on the main issues that the respondents tenants and the knowledge of transfer of ownership and yet paid no rent and committed default, had no justification to interfere with the discretion exercised by the Rent Controller ordering eviction of the respondents tenants from the premises. In support of this contention the learned counsel placed reliance on the cases reported as Muhammad Alimullah v.
10. Ziaul Islam (1), Sabu Mall v. Kikka Ram (2) and Sh. Muhammad Nawaz v. Muhammad Azeem (3).
11. ' The learned counsel also contended that the learned Additional District Judge by relying on the observations of my brother Noorul Arfiri, J. Made in Second Appeal No. 58/65 filed by the respondent Messrs Sadiq Traders against their another tenant Malu Khan, had misconstrued the observations. To substantiate this, he referred to the case reported as Muhammad Alimullah v.
12. Ziaul Islam and relied upon the observations made therein by my brother Dorab Patel, J. At page 63 regarding Second Appeal No. 58/65. As to the reasoning of the learned Additional District Judge for declining ejectment of the respondent No. 1, Amin Art Press, in Second Appeal No. 190/68 because heavy machinery had to be removed by them, the learned counsel contended that this was a relevant factor for allowing maximum time to the respondent to vacate the premises but was not a consideration for declining their ejectment, as the default could not be washed off on compassionate grounds or grounds of inconvenience. For this, the learned counsel relied upon the case reported as Syed Musawar Ali Naqvi v. Muhammad Saeed (4).
13. ' Mr. Naimuddin, the learned counsel for the respondent No. 1 in Second Appeal No. 190/68, opposing the appeal, however, contended that the appellant had no locus standi to file the appeal in the absence of respondent No. 2 filing any appeal. Mr. Hassan Akbar, the learned counsel for the respondent No. 1 in Second Appeal No. 191/68 also raised the similar contention and adopted the arguments of Mr. Naimuddin. The first argument of Mr. Naimuddin was that rights and liabilities of the parties had to be decided under the Ordinance and not under the Transfer of Property Act so that, even if the appellant became the landlord under the Ordinance on sale of the building to him, he could be an aggrieved party only if the respondents tenants had committed default in paying rent to him. The respondents tenants, however committed no such default as firstly, the appellant had admittedly not given statutory notice under section 13-A of the Ordinance to the respondents tenants, and secondly, in any case, the respondents tenants had deposited and continued to deposit rent in Court for the period before and after purchase of the building by the appellant.
(1) PLD 1973 Kar. 56 (2) 1973 SCMR 185
(3) PLD 1961 Lah. 788 (4) 1968 SCMR 498 ' His second argument was that under section 8 of the Transfer of Property Act, transferee is entitled to future rent, unless different intention is expressed or is necessarily implied and the sale-deed in the instant case expressed no such different intention, the appellant transferee was entitled to future rents only and could not claim past rent and since he could not claim past rent, he also could not claim the benefit of the default and the order of ejectment passed in respect of past rent.
14. Mr. Naimuddin sought to fortify his contention by further arguing that, suppose the respondents tenants did not pay rent to the original landlord for the past five years but the landlord took no action against him, could the appellant in that case have realised it, in the absence of such right being given to him by the respondent No.
2. Answer, according to the learned counsel, had to be in the negative.
15. ' As to the Division Bench case reported in PLD 1961 Lah. 788 relied upon by the learned counsel for the appellant, Mr. Naimuddin argued that in that case the LRs. Of the deceased tenant were made liable for the default of their father because of the definition of tenant given in the Ordinance. In the case of landlord, however, the LRs. Could not succeed to any advantage accruing to the deceased landlord in view of section 13-A of the Ordinance which imposes obligation on the new transferee, including transferee by inheritance, to serve notice under section 13-A on the tenant and if L Rs.
16. Could not succeed to the benefit accruing to the deceased landlord, the appellant being a purchaser also could not succeed to the benefit accruing to his predecessor-in-title namely, the respondent No. 2, without giving notice to the respondents tenants under section 13-A of the Ordinance.
17. ' Mr. Naimuddin next contended that assuming that the orders of ejectment passed in favour of the respondent No. 2 were decrees, they were set aside in first appeals in favour of the respondents tenants. Thereafter, if any one was aggrieved, it was respondent No. 2 and not the appellant as the decrees were not assigned in favour of the latter under Order XXI rule 16 C. P. C. To invest him with any right.
18. ' The last contention of Mr. Naimuddin on this point was that in the first appeals, respondent No. 2 remained as respondent No. 1 and the appellant was merely added, not substituted, as respondent No. 2, so that, after the order/decree passed by the Rent Controller was set aside, there remained in the respondent No. 2 a mere right to sue i.e. Right to file an appeal, which he could not assign in view of section 6(e) of the Transfer of Property Act.
19. ' On merits, the learned counsel contended that it was within the discretion of the learned Additional District Judge to refuse ejectment of the respondent No. 1 and since he had exercised the discretion after taking into consideration the various circumstances and had given cogent reasons therefor, he could not be said to have exercised the discretion arbitrarily so that it would not be open to this Court to interfere with it in these second appeals. He also argued that even on the main findings, the learned Rent Controller had wrongly held that the respondents tenants had the knowledge of the transfer of the ownership of the building and that, in spite of this knowledge, they had refused to pay rent to the respondent No.
2. Mr. Hassan Akbar appearing for the respondent No. 1 in Appeal No. 191/68 adopted the arguments of Mr. Naimuddin and added that right to eject a tenant was personal to the landlord which could not be alienated by him to a transferee landlord as otherwise section 13-A of the Ordinance would become redundant and if the sale-deed conferred on the transferee any advantage contrary to above, it would be void and thirdly, on the evidence led, the finding by the Rent Controller that the rent had been demanded from his client by the agent of respondent No. 2 was erroneous and was not sustainable. They, however, filed no cross-objections to assail the findings given against them on the main issues.
20. ' In view of the preliminary objection raised, the first question for consideration is whether the appellant has the locus standi to file these appeals in the absence of the respondent No. 2, Messrs Sadiq Traders Limited, filing any appeal against the judgments passed by the learned Additional District Judge allowing the first appeals. In order to answer this question, reference has to be made to subsection (4) of section 15 of the Ordinance which provides as under :- "(4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (1) and if an appellate authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the appellate authority or, as the case may be, of the Controller, prefer an appeal,in writing to the High Court and the decision thereof shall be final."
21. ' Under this subsection, any party aggrieved by an order passed on appeal by the appellate authority may prefer an appeal to the High Court. Now, any party aggrieved under the Ordinance can be either a landlord or a tenant, as this Ordinance regulates relationship and deals with disputes arising between landlord and a tenant, as defined under the Ordinance. It has, therefore, to be seen, first, whether the appellant is a landlord of the respondents tenants, within the meaning of the Ordinance. Landlord under section 2(c) of the Ordinance is defined as under :- "(c) 'Landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and every person from time to time deriving title under a landlord."
22. 'It has not been disputed that the respondent No. 2 Messrs Sadiq Traders were the landlord of the respondents tenants and that they had sold the building to the appellant Messrs Adil Brothers during the pendency of the first appeals before the Additional District Judge, under a registered sale-deed transferring all their rights, title, interest therein to the appellant. Thus, appellant being a transferee from a previous landlord would be covered by the definition as "a person for the time being entitled to receive rent in respect of the rented building or land". Such being the case, the relationship of landlord and tenant came into existence between the appellant and the respondents tenants. For support reference be made to Sabu Mal v. Aiiturain (1) and Sardar begum v. Gulfraz Khan (2). In the first case his Lordship while dealing with the question, held at page 188 as under ;- "The term "landlord" is defined in clause (c) of section 2 of the (1)1973 SCMR, 185 (2) PLD 1967 Pesh. 176 ' Ordinance as meaning any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of any other person or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and any person from time to time deriving title under a landlord. It will be seen that the transferee from the original landlord would be covered by this definition as a person for the time being entitled to receive rent in respect of the rented building or land. Such being the case the relationship of landlord and tenant came into existence between the parties before us once the rights, title and interest of the original landlord were transferred, to the respondent under the sale effected in May 1964. This tenancy was in no way dependent upon the service of a notice under section 13-A of the Ordinance."
23. ' In the second case, a landlady had filed ejectment proceedings against her tenants mainly on the grounds of non-payment of rent and of requirement of the premises by her for her personal use.
24. The Rent Controller decided against her on both the issues and dismissed the ejectment application. First appeal filed by her was also dismissed by the District Judge on 2-12-1963 against which she filed second appeal. While this second appeal was pending, the landlady sold the house on 20-2-1964 under a registered sale-deed to one Muhammad Safdar Qureshi. One of the objections taken by the respondents in that second appeal was that since Muhammad Safdar Qureshi had purchased the suit property under a registered sale-deed during the pendency of the appeal, he was not competent to seek their ejectment. The High Court repelled this objection and held that Muhammad Safdar Qureshi came within the definition of "every person entitle to receive rent .", as contemplated by clause (c) of section 2 of the Ordinance and could continue the appeal.
25. ' Then, the building was transferred to the appellant during the pendency of the first appeals. The transfer in appellant's favour was therefore subject to the result of the litigation pending in respect of the transferred premises. Suppose, the first appeals filed by the respondents tenants were dismissed and they had filed these second appeals and were decided in their favour. Against whom could they have enforced the decision in the second appeal? Surely, not against the respondent No. 2 as the latter had sold and transferred the building to the appellant and had no interest left in it. They could enforce the decision in the appeals against the appellant only; who could not have ejected the respondents tenants and obtain vacant possession, which he otherwise could have.
26. ' Further, the appellant was impleaded by the learned Additional District Judge as a respondent in both the appeals which he contested and lost and the orders adverse to his interest were passed in both the appeals. It was held by their Lordships of the Supreme Court in the case reported as H.
27. M. Saya & Co. v. Wazir Ali Industries (1) that "If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceedings," The above observations of their Lordships of the Supreme Court apply a fortiori to the facts of this case in which adverse orders were passed against the appellant after he had been joined as a respondent in the first appeals.
(1) PLD 1969 SC 65 ' Reference be also made here to section 146 of the C. P. C. It provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him. It was held in Sitha Ram Swami v. Lakhshmi Narsimha (1) that an appeal is a proceeding for the purpose of this section, and that further the expression 'claiming under him' is wide enough to include cases of devolution and assignment mentioned in Order XXII, rule 10. This decision was quoted with approval in AIR 1955 SC (India) 376. Both the decisions were again referred to in AIR 1958 SC 394 wherein the Supreme Court of India quoting with approval I L R 41 Mad. 510 and following its own decision in AIR 1955 SC 376 observed at page 397 as under :- "It would follow from the above decisions that whoever is entitled to be but has not been brought on record under Order XXII rule 10 C. P. C. In a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if this assignor could have filed such an appeal, there being no prohibition against it in the Code the right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims.
28. ' Reference to yet another case from the Indian Jurisdiction reported as Durhin Suga v. Deorani Knev (2), may not be inappropriate. In this case a suit was filed for declaration of title and confirmation of possession. The suit was decreed ex parte. Defendant No. 1 tiled an application under Order IX, rule 13 for setting aside the ex parte decree on the grounds that there was fraudulent suppression of the summons. Learned Munsif rejected this application. Against this, an appeal was preferred to the District Court by two persons to whom the defendant No. 1 had sold and transferred the disputed lands subsequent to the passing of the ex parte decree but before filing of the application under Order IX, rule 13, C. P. C. An objection was taken in the Court below that the appeal by transferees was not maintainable. The objection was repelled and the ex parte decree was set aside. The plaintiff filed a revision application and contended that the appeal in the Court below was not competent and the Court had, therefore, no jurisdiction to set aside the ex parte decree. The High Court relying on section 146 of C. P. C. Held that the transferees had the right to appeal against the ex parte decree. The material portion of the judgment reads as under : - "The true test, in my opinion, is whether the transferee is affected by the order or decree in question.
29. Here, the transfer was subsequent to the ex parte decree. Therefore the transferees were certainly interested in setting aside the ex parte decree. Mr. Brahmadeo Narain argues that it was open to them to file an application under Order IX. Rule 13. But defendant No. 1, herself filed an application under Order IX, rule 13 and the transferees could certainly take the benefit of her application and it was not necessary for them to file a separate application. When the application was rejected, it was, of course, open to defendant No. 1 to file an appeal, but apparently she did not prefer any, because she had no longer any interest in the property. The transferees were vitally interested in setting aside the ex parte decree who were, in the circumstances, entitled to prefer an appeal."
(1) I L R 41 Mad. 510 (2) AIR 1952 Pat. 72 ' Thus, relationship of landlord and tenant having been established between the appellant and the respondents tenants and the appellant having been joined as a respondent in both the first appeals and an order adverse to his right, interest and benefit having been passed by the learned Additional District Judge in those first appeals the appellant had the locus standi to tile these second appeals.
30. ' The argument of Mr. Naimuddin that after the order passed by the Rent Controller was set aside, all that was left in the respondent No. 2 was a mere right to sue i.e. To file an appeal which he could not transfer to the appellant, and that the order of ejectment, assuming to be a decree, was not assigned to the appellant under Order XXI, rule 16, C. P. C. And that the appellant had failed to give notice under section 13-A of the Ordinance so that no default was committed by the respondent No. 1 vis-a-vis the appellant who therefore had no locus standi to file the appeal are found to be without substance. Firstly, the respondent had sold away the building with all his rights, title, interest and advantages so that it was not a mere right to sue that was transferred. Secondly, the question here is that the first appeals were already pending when the appellant was joined as a respondent and the second appeal being only continuation of the first appeal, the question of the respondent No. 2 assigning the order or decree did not arise. If the appellant could in law continue the first appeal, he could also file the second appeal in the event of the first appeal being decided against his interest. Thirdly, the question is not of the default committed by the respondents tenants vis-a- vis the appellant. The question here is whether the default having been already committed and the orders of ejectment having been already passed against the respondents tenants and the appellant having acquired rights, title and interest of the respondent No. 2 and having been joined in the first appeals, the appellant could file these appeals after the first appeals were decided against his interests which it has been shown above that he could The preliminary objection raised by the learned counsel against the locus standi of the appellant to file these appeals is therefore repelled.
31. ' Having held that the appellant has the locus standi to file these second appeals, it remains to consider whether on merits, there should be order in favour of the appellant in both these appeals.
32. In doing so, it has first to be decided whether the order of ejectement passed by the Rent Controller endured for the benefit of the appellant and secondly, whether the learned Additional District Judge acted properly in interfering with the orders passed by the Rent Controller by exercising his discretion in favour of the respondents tenants in declining their ejectment. Under section 8 of the Transfer of Property Act, transfer of property passes forthwith to the transferee all rights, title and interest which the transferor is then capable of passing in the property and the legal incidents thereof. In the sale-deed executed in the instant case, the respondent No. 2 transferred all his rights, title, interest in the property to the appellant and also covenanted with the appellant vendees that henceforth the vendees shall be the rightful and absolute owners of the said property and shall peaceably and quietly have, hold, occupy and possess the same and enjoy all the rents, profits and' benefits thereof without any let, claim, demand, denial, hindrance, inter-ruption or eviction " On the date of transfer, the order passed by the Rent Controller directing eviction of the respondents tenants for the default committed by the latter existed in favour of respondent No. 2 which conferred right, interest. Benefits and advantage on the latter to evict the respondents tenants and obtain vacant possession of the premises. Default is committed in respect of premises and is not personal. Thus, when the respondent No. 2 sold and transferred the building with all his rights, title, interest, benefits and advantages in respect thereof to the appellant, the benefit of the default conferring the right to eject also passed to the appellant under the sale-deed as well as under the transfer of Property Act as the Ordinance does not operate as a complete ouster of the principles under lying the Transfer of Property Act and is to be preferred only in case of inconsistency. If support is needed for the view that default is committed in respect of premises and confers benefits/advantage on the landlord, reference may be made to a D. B. Case reported as Muhammad Nawaz v. Muhammad Azeem (1) wherein late Mr. Justice Kayani, as he then was, observed at page 791 as under :- "The death of the original tenant cannot obliterate the effect of default which has conferred an advantage on the landlord. The default was not personal, for it was committed in respect of property."
33. ' Apart from the benefit of the order of ejectment passing to the appellant under section 8 of the Transfer of Property Act and under the sale-deed, there is also other material on record which clearly shows that the respondent No. 2 had indeed intended to transfer the right, benefit of the order of ejectment to the appellant. Respondent No. 1 Messrs Amin Art Press in Appeal No. 190/68 had filed an application under section 151, C. P. C. Before the learned Additional District Judge in the first appeal wherein they had urged that with the sale of the premises, the order of ejectment abated and the Rent Controller and the first appellate authority ceased to have jurisdiction over the subject-matter as well as over the parties. The appellant had also filed applications under Order I, rule 10, C. P. C. In both the first appeals for being jointed as a respondent. The respondent No. 2, the predecessor-intitle of the appellant, who was till then the only respondent in the first appeals, filed objections wherein he opposed the application under section 151, C. P. C. Filed by the respondent No. 1 and supported the applications filed by the appellant. Para. 2 and 3 of the objections are reproduced as under :-
(2) The respondents have sold and conveyed the building in question to Messrs Adil Brothers Ltd..
34. The applicants above-named who have already filed an application under Order I, rule 10 C. P. C.
35. Praying that they be joined as respondents as rights, title and interest in the property including the rights acquired under the order of the Rent Controller in Rent Case No. 348 of 1964 have passed to the applicants. The applicants are entitled to the benefits of the order passed by the Rent Controller and also to defend the appeal.
(3) It is submitted that the relationship of landlord and tenant continues between the parties and the applicants and the order of the learned Rent Controller is still valid and binding on the appellants in favour of the applicants who are the successors-in-interest of the respondents."
36. 'In view of above, there can be no doubt left that with the transfer of the property by the respondent No. 2 to the appellant, benefit/advantage of the order of ejectment passed by the Rent Controller was also transferred to the appellant who could, therefore, eject the respondent in the event of his succeeding in these appeals. The argument of Mr. Naimuddin that under section 8 of the Transfer of Property Act, the appellant became entitled only
(1) PLD 1961 Lab. 788 to future rent and not to the past rent unless different intention appeared in the sale-deed so that the appellant could not take the benefit of the order of ejectment passed in respect of past rent, is accordingly found to be without substance.
37. ' Having thus held that the appellant could avail of the benefit of the order of ejectment passed in favour of respondent No. 2, his predecessor-intitle, there remains only for consideration whether the learned Additional District Judge acted properly in interfering with the discretion exercised by the Rent Controller against the respondents tenants ordering their ejectment. It has been contended by the learned counsel for the appellant that it was discretionary with the Rent Controller to order ejectment of the respondents tenants, notwithstanding the finding by him that the latter had committed default. The Rent Controller, however, exercised the discretion against the respondents tenants for the reasons that were cogent and convincing. Consequently, the learned Additional District Judge had no justification to interfere with the discretion rightly exercised by the Rent Controller. As against this, the learned counsel for the respondents tenants have contended that the learned Additional District Judge had the discretion to refuse ejectment of the respondents tenants and the learned Additional District Judge having so exercised it, this Court should not interfere with it in these second appeals.
38. 'It could not be disputed that the learned Additional District Judge as first appellate authority had the discretion to condone the default committed by the respondents tenants and refuse their ejectment. But as the discretion is a judicial discretion, it has to be exercised on judicial considerations and on principles that are in consonance with the object of the Ordinance. Under the Ordinance, tenant is under the statutory obligation to pay rent to the landlord and in case of default can invoke the discretion under section 13 of the Ordinance only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligation.
39. Further, it is also to be borne in mind that the established principle is that when a lower Court has exercised its discretion, the Appellate Court should interfere with it only if it finds that lower Court or authority has exercised the discretion arbitrarily or unjustly. See PLD 1962 Kar.
59. Now, the learned Rent Controller had exercised his discretion against the tenant respondent No. 1 in Appeal No. 190/68, namely Messrs Amin Art Press, for the reasons that the latter had been duly informed about the transfer of the building to the respondent No. 2 but he gave a dishonest explanation that he did not know about the change of ownership and even denied that the letter of attornment had been signed by his Manager Yasin Tareen which, on comparison of signatures by the Court, was found to have been signed by the said Yasin Tareen. Relevant finding of the learned Rent Controller may be reproduced in his own words : "As to the question of discretion to be exercised by the Rent Controller in favour of opponents who have heavy machinery fixed on the premises and were running a press, the point could have weighed if the opponents had admitted the signature and knowledge of letter of attornment and had satisfactorily explained delay in payment of rent or offered it but on account of applicants failure to accept it would have been a valid tender. But that is not the case here. The opponents have completely denied the service of notice and letter of attornment and several demands from applicants Rent Collector and I do not find any mitigating circumstances to hold in opponents favour that they were not defaulters. My finding as such would be in the affirmative."
40. ' The first Appellate Court concurred with the findings by the Rent Controller that the respondent No. 1 had been duly informed about the change of ownership and yet committed default in paying rent to the respondent No. I. It, however, interfered with the discretion exercised by the Rent Controller and declined ejectment of the respondent No. 1 on the grounds, firstly, that the respondent No. 2 had also files similar ejectment proceedings against another tenant Kaloo Khan in the same building but his eviction was not ordered by the learned Additional District Judge because he had been depositing rent in Court regularly and the order of the Additional District Judge was also upheld by the High Court in Second Appeal No. 58/65 and since the respondent No. 1 Messrs Amin Art Press had also been depositing the rent in Court regularly, they too were entitled to the discretion being similarly exercised in their favour and, secondly, because the learned Rent Controller was himself inclined to exercise the discretion in favour of the respondent No. 1 but for the latter's wilful denial, thirdly, because heavy machinery had to be moved by the respondent No. 1 and fourthly, because the respondent had sold away the premises during the pendency of the appeal.
41. ' As to the reliance of the learned Additional District Judge on the observations of my brother Noorul Arfin, J. In Second Appeal No. 58/65 filed by respondent No. 2 against Kalu Khan, the judgment would, on careful scrutiny, show that the learned Additional District Judge has over-emphasized the observations as the main reasons that weighed with my brother Noorul Arfin, J. In upholding the discretion exercised by learned Additional District Judge in favour of Kalu Khan were that the tenant Kalu Khan in that appeal had succeeded in proving that he did not know the whereabouts of his landlord as the letter of attornment was in English whereas Kalu Khan was an illiterate man, and secondly, that Kalu Khan had offered rent by money order but it was refused by the respondent No. 2 and thirdly, because the setter had demanded exorbitant rent from Kalu Khan.
42. None of these grounds were, however, available to the respondent No. 1 Amin Tareen in appeal No. 190/68. Here, both the Rent Controller as well as the Additional District Judge held that the letter of attornment intimating change of ownership was served on none else than Yasin Tareen, the Manager of the respondent No. 1 Messrs Amin Art Press. The letter also contained full address of respondent No. 2 Messrs Sadiq Traders which could not have been missed as it could not be contended that Manager of the press was illiterate and therefore, could not read the letter. Then, whereas an illiterate man, Kalu Khan offered some rent by money order, literate man in the instant case did not offer any rent. It will thus be seen that the facts and circumstances of the case in Appeal No. 58/65 are distinguishable from the facts of the present case, so that the observation in that case would not be applicable to the facts of the present case. Further, this decision in Second Appeal No. 58/65 was cited in the case reported as Muhammad Alamullah v. Zlaul Islam wherein my brother Dorab Patel, J. Made the following observations regarding Second Appeal No. 58/65 : "Thus in Sadlq Traders v. Kalu Khan (Second Appeal No. 58 of 1965) the facts were that although the tenant was in arrears of rent, he was able to prove that the property changed hands and that he was not aware of the new landlord's address. But as I have explained in paragraph 6, these are circumstances which would entitle a tenant to invoke the Court's discretion under section 13.
43. However the view taken in this judgment must be confined to the peculiar facts of the case, and in my humble opinion, it does not support the view of the learned Single Judge in Mst. Khairunnisa's case."
44. 'I agree with my brother Dorab Patel J. That the decision in Second Appeal No. 58/65 should be confined to its peculiar facts.
45. 'The second ground relied upon by the learned Additional District Judge is that the Rent Controller himself was inclined to exercise his discretion in favour of the respondent No. 1, but the fact is that he exercised it against the respondent No. 1 and gave reasons for it which were cogent and convincing. The third ground that heavy machinery had to be moved could also be hardly considered as a ground for not ordering ejectment if tenant is found to have committed wilful default. At best, it could be a circumstance for giving maximum time to the respondent No. 1 for vacating the premises. The fourth ground also could not legitimately be considered as a relevant consideration in the circumstances of this case.
46. ' Thus, it will be seen that none of the grounds relied upon by the learned Additional District Judge in interfering with the discretion exercised by the Rent Controller against the respondent No. 1 in Appeal No. 190/68 could be considered to be judicial considerations for exercising the discretion in favour of the respondent No. 1.
47. ' In the case of respondent No. 1 in Appeal No. 191/68, namely, Messrs Statesman Weekly, also, the learned Additional District Judge interfered with the discretion exercised by the Rent Controller and declined ejectment of the respondent No. 1 on the grounds, firstly, that since the discretion had been exercised in favour of Kalu Khan in the above-mentioned Second Appeal No. 58/65, the respondent No. 1 was also entitled to the discretion being similarly exercised in their favour as they too had been depositing rent in Court regularly and secondly, because the settled mode of payment of rent by the respondent No. 1 tenant and the previous landlord was that the latter's Rent Collector used to come at the premises to collect rent and the evidence of the witness Qaiser Mahmood, examined on behalf of respondent No. 2, showed that although he had gone to the premises to collect rent, he never contacted the editor of the respondent No. 1 Statesman Weekly presonally for Rent which prudence required him to do and since he failed to do so, possibly no body brought to the notice of the respondent No. 1 that rent was payable to Qaiser Mahmood, the Rent Collector, so that, relying on the previously settled mode of payment of rent, the respondent No. 1 was not bound to trace the whereabouts of the new landlord respondent No. 2 for paying rent to him and that rent by money order could also not be sent as the full address of the respondent No. 2 was not known to him.
48. ' I am afraid, the above grounds relied upon by the learned Additional District Judge are neither valid nor did they justify interference with the discretion exercised by the Rent Controller. As to the reliance by the Additional District Judge on the observations of Noorul Arfin, J. In the Second Appeal No. 58/65, I have already said earlier in the judgment that the main considerations that weighed with my brother Noorul Arfin, J. Were different and, in any case, that decision should be confined to the peculiar facts of that case. As to the ground, that in view of the admission of witness Qaiser Mahmood that he had not contacted the respondent No. 1 personally so that the respondent No. 1 could rely on the previously settled mode of payment of rent and did not have to trace the landlord respondent No. 2, it having been established and accepted by the learned Additional District Judge that the respondent No. 1 had been in fact informed about the change of ownership by his own employee lqbal Hussain, who also admitted in his evidence that the letter intimating change of ownership had been signed by him, it was the duty of respondent No. 1 to have found his landlord, the respondent No. 2 whose address was also fully disclosed in the letter of attornment and paid him the rent. The learned Rent Controller, therefore, very rightly observed that had the respondent No. 1 taken title trouble, he could have traced the landlord. In view of the fact that the address of the respondent No. 2 was fully given in the letter of attornment, the observations that the respondent No. 1 could not also send the rent by money order as the full address of the respondent No. 2 was not known to him is also not correct. Even if it were to be accepted that settled mode of payment of rent was that rent collector of the previous landlord used to come to the premises to collect rent, the evidence of Qaiser Mahmood shows that he used to go to the premises twice a month for collecting rent but he used to be sent away by the staff without rent being paid to him. This being so, it cannot be accepted that it was not brought to the notice of the editor of the respondent No. 1 that rent had to be paid. Besides, was it not his duty to have been aware of his statutory obligation to pay rent for the premises occupied by him when he is held even by the learned Additional District Judge, to have been informed by his employee Iqbal Hussain about the change of ownership of the building.
49. ' For the aforesaid reasons I have formed the view that the respondent No. 1 in Second Appeal No. 190/68 as well as the respondent No. 1 in Second Appeal No. 191/68 committed wilful default in paying rent for the premises, in spite of the knowledge of transfer of the premises and no relevant grounds had been made out by them to justify the discretion being exercised in their favour.
50. Consequently, the learned Additional District Judge did not act properly in interfering with the discretion rightly exercised by the Rent Controller against the respondents tenants. I, accordingly, allow both the appeals, set aside both the judgments of the learned Additional District Judge under appeal and restore the orders passed by the Rent Controller directing eviction of the respondent No. 1 in Appeal No. 190/68 and of the respondent No. 1 in Appeal No. 191/68. The respondents tenants are given two months to hand over the possession of the premises to the appellant. Both the Appeals are allowed with costs.