JUDGMENT RASHEED A. RAZVI, J. - Appellant is a tenant in respect of a garage on plot bearing No. 6/16 PR-2. Greedy Quarters, Saddar, Karachi (hereinafter referred to as the rented premises), who has been ordered to be evicted from the said tenement on the ground of default in payment of rent from November, 1989.
2. The rate of rent which is Rs. 25/- per month is not disputed. However, the appellant/tenant has raised controversy pertaining to the change of ownership of the tenement in question and not being informed of such fact. Admittedly, the previous landlord was one namely Russi H. Dinshaw.
On 25.4.1993, the respondent/landlord tiled the present rent case on the ground that the appellant/tenant has failed to tender rent from September, 1986 as well as from November, 1989 till tiling of the suit. It is an admitted position that the respondent/landlord had tiled an earlier rent case bearing No. 1768/1989 on 17.12.1989 which was granted ex parte, whereafter, in an execution proceedings the appellant/tenant was dispossessed on 4.4.1991. His F.R.A. No. 289/91 was accepted by this Court vide judgment dated 2.6.1992 whereafter learned Rent Controller restored possession of the rented premises to the appellant/tenant on 3.3.1993. It is also admitted that after remand of the said rent case from the High Court, it was dismissed for non-prosecution on 21.10.1992.
Subsequently, application was filed by the respondent/landlord in the earlier F.R.A, for re-admission and re-hearing of appeal on merits which was again dismissed vide order dated 12.4.1993. Since Mr. Maqsum Rizvi has pleaded the application of rule of res judicata on the basis of an observation made by this Court in the previous F.R.A., it would be advantageous to reproduce the same which reads as follows:- "...However, the endeavour on the part of Mr. Z.U. Ahmed by referring to the foregoing two sets of proceedings has been to show that if the respondent-ll had not served Fazal Hussain- tenant with notice under Section 18 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979), formally conveying the factum of transfer, the latter would be fixed with notice as contemplated in Pakistan National Shipping Corporation Vs. General Service Corporation (1992 SCMR 871), which, however, is an authority dispensing with the technicality of a Regd. A.D. Notice and opines that a simple notice with due knowledge would serve the purpose. That, in any case, is besides the point, for even where such a notice is proved and found valid that fact is not a substitute of notice of eviction proceedings, which is what is sought to be done by making reference to the two sets of proceedings."
3. I have heard Mr. S. Maqsum Hasan Rizvi, Advocate for appellant and Mr. Waqar Muhammad Khan Lodhi, Advocate for the respondents. It is contended by Mr. Maqsum Hasan Rizvi that the appellant/tenant could not be held responsible tor non-payment of rent as he had already deposited rent in Misc. Rent Case No. 5052/1982 in the name of previous landlord R.H. Dinshaw till June, 1991. It was argued that the question of default from the month of September, 1986 was subject-matter of the previous rent case which had resulted in dismissal for non- prosecution.
According to the learned counsel, it has attained finality and cannot be called in question through fresh rent, case. In so many words, he has pleaded res judicata. It was also contended that the appellant/tenant is not liable to deposit rent for the period commencing from 4.4.1991 till 3.3.1993 during which period he was out of possession. It was also pleaded that no notice under Section 18 of the Ordinance, 1979 was served upon the appellant and, therefore, he is not liable for alleged default. Mr. Maqsum Rizvi has paced reliance on the following cases:-
(i) Abdul Kadir and another v. Muhammad Yaqoob (1991 SCMR 1029);
(ii) Haji Usman Bhai v. Syed Ali Imam Zaidi and 2 others (1994 SCMR 1918); (i.e) Karamat Hussain v. Kazi Ali Muhammad (1986 SCMR 441);
(iv) Moizur Rehman's v. Mrs. Fakhra Javed (PLD 1991 Karachi 452);
(v) Mohiuddin Ansari v. Muhammad Arif Siddiqui (PLJ 1990 Karachi 435).
4. It was argued by Mr. Waqar Muhammad Khan Lodhi that the appellant/tenant was in full knowledge of the fact that the rented premises has undergone change of ownership and, therefore, formality of issuing notice under Section 18 of the Ordinance, 1979 does not arise. He has referred to the copies of the pleadings filed by the appellant/tenant along with his affidavit in evidence which pertain to Suit No. 1808/1987 (Fazal Hussain v. Russi H. Dinshaw and others). In addition, he had also pleaded due service of notice u/S. 18 on the appellant/tenant. It was also contended that despite gaining knowledge of this fact of transfer of ownership, the appellant/tenant continued depositing rent in the name of previous landlord which clearly constitutes deliberate and wilful default. On the point of res judicata, it was argued that this rule will not attract as respondent/tenant is also pleading default from the period November, 1989 which was not the subject-matter of the earlier rent case. Mr. Waqar Muhammad Khan Lodhi has placed reliance on the following cases:-
(i) Pakistan National Shipping Corporation v. Messrs General Service Corporation (1992 SCMR 871);
(ii) Mst. Jehan Ara v. Mst. Tayyaha Khatoon (1996 CLC 377); (i.e) Qaimuddin v. Ghulam Shah (1993 CLC 336);
(iv) Muhammad Raghib v. Abdul Razzaq (PLD 1994 Karachi 20);
(v) Ghulam Samdani v. Abdul Hameed (1992 SCMR 1170);
(iv) Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others (1986 SCMK 751).
5. There is no cavil to the proposition that the rule of res judicata is equally applicable in the rent cases. A party pleading such rule is required to show that the issue involved in the subsequent proceedings were common between the same parties in the earlier round of litigation which has attained finality before the competent Courts. I have examined the proceedings of both the rent cases. The earlier rent case was filed on 17.12.1989 alleging that the appellant/tenant has committed wilful default from September, 1986. The instant case was filed on 25.4.1993 claiming that the tenant has defaulted in payment of rent from November, 1989. At the time of filing earlier rent case, the default tor the month of November, 1989 had not matured as that rent case was filed in the month of December, 1989. Both the causes of action being separate, the rule of res judicata is, therefore, not applicable. Now, the question which requires consideration is whether a landlord is required to serve a notice under Section 1 of the Ordinance, 1979 despite the fact that his tenant is in positive knowledge of the change of ownership and whether such tenant could be ejected on the ground of default.
6. In the case of Muhammad Yousaf (1986 SCMR 751), it was held, inter alia, while following the rule laid down in the case Syed Athar Imam Rizvi v. Mst. Salma Khatoon (1985 SCMR 24) that an ejectment petition could be treated as a notice under Section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 which Ls para materia to Section 18 of the Ordinance, 1979. This view has been consistently followed by the superior Courts of Pakistan. In the case of Pakistan National Shipping Corporation (1992 SCMR 871 at 874), it was held, inter alia, by a full bench of Hon'ble Supreme Court while following the rule laid down in the case of Sahu Mat v. Kika Ram alias Heman Das (1973 SCMR 185). "It has, therefore, not to be strictly construed particularly issuance of notice by registered post if the tenant has positive knowledge of transfer by a simple notice or otherwise as the case may be." (Emphasis laid). It was further observed that the tenancy is in no way dependent upon the service of notice under Section 18 of the Ordinance, 1979. It is to be noted that the Supreme Corn ! Has used two phrases, namely "simple notice" and "otherwise" for the purpose of intimating a tenant about the change of ownership.
7. In the instant case, it is claimed by the respondent/landlord vide para 1 of the application that the tenement in question was purchased through a sale-deed dated 10.9.1986. It is further asserted in para 3 of the main application that the opponent (now appellant) was informed regarding the change of ownership of the rented premises. In the written reply the claim of landlord has been disputed on the ground that the copy of sale- deed was not supplied to the tenant. Again in the affidavit in evidence, the landlord has claimed in para 4 about purchase of the tenement in question. However, ownership was not specifically denied by the tenant through his affidavit in evidence. Tenant has also tiled a copy of his plaint in suit No. 1808/1987 wherein he impleaded present respondent/landlord as defendant No. 2 and has claimed therein that defendant No. 2 (now respondent) is claiming to be owner of the tenement in question. That suit was filed on 6.10,1987. Tenant has also filed a copy of the counter affidavit of Russi H. Dinshaw tiled in that suit which was brought on record as (Ex-A/4) before the Rent Controller wherein it was categorically stated by the deponent that "he has sold the premises in dispute (now rented premises) to the defendant No. 2.".The date of counter affidavit filed by Russi H. Dinshaw is 20.12.1987. Despite all these facts, the tenant/appellant continued depositing rent in the name of previous landlord till October, 1992 when for the first time rent was tendered in Misc. Rent Case No. 1045/92. These facts are not disputed by either parties.
8. It was argued by Mr. Maqsum Rizvi on the basis of rule laid down by Hon'ble Supreme Court in the ease of Abdul Kadir (supra) that once the rent has been paid to the previous landlord, a tenant is not liable to repay the same to the new landlord. It is settled law that a tenant cannot be compelled to pay double rent. But in order to plead this rule a tenant is required to prove that the rent tendered to the previous landlord was prior to getting knowledge of transfer of ownership. In the case of Abdul Kadir (ibid), the rent was received by the previous landlord and the same rent was claimed by the new landlord vide his notice under Section 18 of the Ordinance, 1979. In the instant case, the appellant/tenant came to know on 4.4.1991 when he was dispossessed in the previous proceedings that the tenement has undergone change of ownership. He also got knowledge in the month of December, 1987 that the previous landlord has sold the property to the present landlord. These are sufficient material to prove that the tenant/appellant was in positive knowledge of the change of ownership but despite that he continued to deposit rent in the name of previous landlord. Courts have always treated an application under Section 15 as notice under Section 18 of the Ordinance, 1979. I do not see any reason for not accepting pleadings of an earlier suit which was filed by a tenant and through which he came to know about the change of ownership as service of notice under Section 18 of the Ordinance. 1979. In order to plead valid tender of rent and bona i.e the tenant should have proved that the rent deposited in Misc. Rent Case No. 5052/1982 in the name of Russi H. Dinshaw till June, 1991 was withdrawn by the said landlord. Nothing has been brought on record to prove this fact.
9. The conduct of the appellant/tenant is not above-board. During previous litigation initiated by him, he gained full knowledge about the transfer of ownership of the tenement in question. Again he came to know of this fact on 4.4.1991 but he did not amend himself. It was only in October, 1992, that, for the first time, he tendered rent knowingly well that he was out of possession. There was no occasion to tender rent for such period. No efforts were adopted to pay the rent for the period November, 1989 till April, 1991. Even if the rent deposited by the appellant/tenant for October, 1992 in the name of present landlord is adjusted towards the period November, 1989 to 4.4.1991, the default has occurred and that will not were out the default committed by the appellant/tenant.
10. Upshot of the above discussion is that the appellant/tenant has been found to be in default in payment of rent from November, 1989 till 4.4.1991 and therefore, this appeal merits dismissal.
Accordingly, this appeal is dismissed with no order as to costs along with CMA-426/97. The appellant/tenant is directed to deliver the vacant and peaceful possession of the tenement to the respondent/landlord within six months hereof subject to regular payment of rent.