MUHAMMAD ALI Versus JAMIL AHMED

The appellant has assailed through this second appeal the order of the learned Additional District Judge, Karachi, dated 14th December 1970. whereby he set aside the order of ejectment passed against the respondent by the VIII Civil Judge First Class and Rent Controller, Karachi on 19th November 1969.

2. The facts leading to this case are that the appellants purchased a building which is constructed on a plot bearing No. 71, Block No. 2. Central Commercial Area, Tariq Road, P. E. C. H. Society, Karachi, by a sale-deed dated 31st March 1965. One of the shops in this building is occupied by the respondent on a monthly rental of Rs. 500.

3. The salient features of the sale-deed were that it provided that the proceedings in the Courts pending against the respondent at the initiation of the previous owner could be continued at the responsibility of the purchaser who will ultimately be entitled to the consequences of the litigation. These proceedings were in fact for the fixation of fair rent. The second provision in this sale-deed was that the arrears of rent due from the respondent on the date of sale-deed were assigned to the present appellants and they were authorised to recover the same and take advantage, if any, flowing from the consequences for non-payment of rent to the original owner in time.

4. The present appellants filed an ejectment application against the respondent on 1st October 1965 on the ground of default in payment of rent for the period from December 1964 to September 1965 at the rate of Rs. 500 per month. Some other grounds such as demolition of the property and its unauthorised conversion into a bar were also raised but these grounds did not survive as such no argument was advanced on these grounds before me. The written statement to the said application was filed on 25th October 1965 in which all the allegations contained in the eject ment application were repudiated. In respect of non-payment of the rent the pleas taken by the respondent were that the rate of rent was Rs. 275.50 per month and not Rs. 500 as alleged by the appellants. He further contended that the rent at the rate of Rs. 275.50 as was fixed by the learned Rent Controller was tendered to the appellants but the same was refused to be received by the appellants and that the appellants were not entitled to the rent accruing due against the respondent previous to the purchase of the pro perty by them.

5. The learned Rent Controller framed issues on all the points on which the parties were at variance, recorded the evidence of both the parties and allowed the application of the appellants ordering ejectment of the respondent from the premises in question.

An appeal was preferred against this order by the respondent and the learned District Judge, Karachi set aside the order of the Rent Controller vide his order dated 28th August 1968 and remanded the case back to the Rent Controller with direction to examine the same keeping in view the con sequences of non-service of notice under section 13-A of West Pakistan Urban Rent Restriction (Ordinance VI) of 1959 (hereinafter referred to as the "Ordinance VI of 1959") which was alleged not to have been sent to him in this case by the appellants. The order of the learned Additional District Judge, Karachi was challenged in second appeal before the High Court but the appeal was dismissed in limine. Accordingly, the Rent Controller pro ceeded with the matter and on 19th January 1969 again passed an order of ejectment against the respondent. The respondent challenged this order by filing of an appeal to the Additional District Judge, Karachi, who set aside the order of Rent Controller vide impugned order dated 14th Decem ber 1970.

6. The learned counsel for the appellants has advanced his argument mainly on two points namely whether a default was committed by the res pondent in respect of payment of rent for the period from December 1964 to September 1965 and whether it was incumbent upon the appellants to have sent a notice under section 13-A of the Ordinance VI of 1969 to the respondent.

So far as his first contention is concerned, it is an admitted feature that the rent from December 1964 to September 1965 (ten months' rent at the rate of Rs. 500 per month) was not received by the appellants. A break-up of this period would be December 1964 to March 1965 coming to four months and comprising of the period prior to the purchase of the property by the appellants and the period from April 1965 to September 1965 coming to six months and comprising of the period subsequent to the purchase of the pro perty. As far as the earlier period is concerned, it has neither been canvassed before me by the learned counsel for the respondent nor it transpires from the record that any rent for this period was tendered or paid to the previous owner. However, as regards the period from April 1965 to September 1965, the record reveals that a cheque for Rs. 551 accompanied by a letter dated Ist June 1965 (Exh. 'E') purporting to be the rent for the months of April and May 1965 at the rate of Rs. 275.50 per month was sent to the appellants. Admittedly, this letter was received by a minor boy living in the neighbour hood of the appellants and he admitted having receivcd this letter, when he appeared in the witness-box. It has been disputed by the appellants that it was not a proper tender of rent. However, be that as it may, I would dilate upon the effect of this tender later when I would examine the consequences of this remission. Second remittance was made by a money order dated 5-8-1965 for Rs. 551 (Exh. 'H') purporting to be the rent for the months of June and July 1965 at the rate of Rs. 275.50 per month. This money order was refused to be received by the appellants. The last remittance was made by another money order (Exh. 'G') dated 5th July 1965 for Rs. 275.50 purporting to be the rent for the month of August 1965. This money order was also refused to be received by the appellants. Thus placing at its highest, the position can be summed up in these words that the rent for five months out of six months was remitted by the respondent at the rate of Rs. 275.50 per month. What is left to be seen is whether this was a proper tender or not because the rate of rent as shown in the lease agreement was Rs. 500 and not Rs. 275.50. Thus the respondent was liable to pay the rent at the contractual rate. It has been argued by the learned counsel for the respondent that the Rent Con troller had fixed the rent in the proceedings which was separately pending before him at the rate of Rs. 275.50 per month vide his order dated 19th June 1962. But this order had been set aside by the District Judge. The District Judge had remanded the case back to the Rent Controller had again fixed the rent at Rs. 500 per month on 15th October 1968. This order was upheld in first appeal on 31st March 1969. The relevant period being December 1964 to September 1965 ` it can be safely held that during this period the order of the District Judge was holding the field who had upset the order of the Rent Controller dated 18th March 1963 whereby the rent was fixed at Rs. 275.50 per month. In these circumstances the respondents was bound to pay or tender rent to the appellants at the rate of Rs. 500 per month. The payment made at the rate of Rs. 275.50 was therefore inadequate and cannot be held to be valid payment as required under the law. He being bound by the Lease Agreement should have paid or tendered rent at the contractual rate which he failed to do. I am, therefore, of the view that the respondent committed a clear default in the A payment of rent and on this score he was liable to be ejected from the premises in question.

7. The next point urged before me was in respect of the notice under section 13-A of the Ordinance VI of 1959. Section 13-A of the Ordinance VI of 1959 requires that an intimation should be given under registered post to the tenant by the successor-in-interest of the previous landlord. It is thus intended that the tenant should become aware as to whom he had to pay the rent. This section did not originally exist in Ordinance VI of 1959. It was brought on statute book on 8th June 1965. It was also not given retros pective effect. In this case the property was purchased by the appellants on 31st March 1965 I.e. over two months prior to the promulgation of section 13-A of Ordinance VI of 1959. It would not therefore have the effect of taking away the rights which vested in the appellants by virtue of the purchase of the property. The right to institute the ejectment proceedings on the ground of non-payment of rent accrued to the appellants on 31st March 1965 in respect of the period from December 1964 to March 1965 i.e. the period for which the rights had been assigned to the appellants to recover the rent from the respondent and therefore he could legally institute an H application against him for his ejectment soon after 31st March 1965. This right would not be adversely affected because it accrued to the appellants before the enforcement of section 13-A of the Ordinance VI of 1959. I am fortified in this view by the observation made in Mohammad Hussain v. Amtul Batool (1970 S C M R 286). In this case their Lordships of Supreme Court have held that section 13-A of the Ordinance VI of 1959 did not have retrospective effect. In these circumstances I am of the view that it was not incumbent upon the appel lants to serve the respondent with a notice under section 13-A of the Ordi nance VI of 1959. The learned counsel for the respondent has also conceded, though in very mild terms, that section 13-A of the Ordinance VI of 1959 could not form an impediment in way of the appellants to sue the respondent on the ground of default in payment of rent. He has however, qualified his con tention by submitting that the right to recover the previous rent could only be asserted by the appellants by filing of a regular civil suit and that the learned Rent Controller was not a proper authority to be approached in this connec tion. In this connection suffice it to say that default is not personal but it is in respect of the property and when the property is conveyed by way of sale the rights vesting in the transferor can also be conveyed to the transferee and for the assertion of such rights the only forum available under the law is Rent Controller's Court, who alone deals with the ejectment cases. The question of preferring a regular civil suit therefore does not arise at all. For this argument I receive strength from Mohammad Nawaz v. Mohammad Azim (P L D 1961 Lah. 788) wherein it is held that the default was not personal for it was com mitted in respect of the property and the successor-in-interest of the landlord succeeds to the default also. The relevant observation is as under,-

"The default was not personal for it was committed in respect of the property, and since the children succeeded to the tenancy, they succeed ed to the default also."

It can thus be held without any fear of contradiction that the transferor in this case could transfer the rights which had accrued to him by virtue of a default committed by the respondent while transferring the property to the appellants. The argument of the learned counsel for the respondent is there fore devoid of any force.

8. The learned counsel for the respondent vehemently argued next that the default was not wilful because the respondent had all along been re mitting rent to the appellants through money orders. However he has been able to account for the period of four months which lapsed before the purchase of the property by the appellants. At least during that period no effort was made to tender or pay the rent to the previous owner as is evident from the record and since the tenancy was created by a written Lease Agree ment the respondent was bound to pay the rent within 15 days of each subsequent month which he failed to do. Evidently he did not pay the rent continuously for four months before the property was sold to the appellants. Sub sequent to the sale also he did not pay or tender the rent at the contractual rate. Even if it is accepted for the sake of argument that the first remittance made by him through a cheque which was received by a minor boy living in the neighbourhood of the appellants was a valid tender, the respondent is left with no explanation to justify as to why he remitted the rent at the rate of Rs. 275.50 per month and not at the rate of Rs. 500 per month. As I have already observed, he was bound to pay the rent at the rate of Rs. 500 per month because during the period when these remittances were made the order of the District Judge was holding the field and the order of the Rent Controller whereby the rent was fixed at Rs. 275.50 per month stood set aside. From this reasoning it is obvious that for the period of six months during which the rent should have been paid at the rate of Rs. 500 it was paid at a much lesser rate which is apparently a deliberate act. It cannot therefore be held that the default for the first four months i e. the period before the purchase of the property and the subsequent six months up to the filing of the ejectment application Le. the period after the purchase of the property the default committed by the respondent was not wilful and deliberate. He there fore does not deserve any concession.

9. For the foregoing reasons I am of the view that the impugned order is patently illegal and the same deserves to be set aside. The appeal is accordingly allowed and the impugned order is set aside. Natural con sequence of the acceptance of this appeal is that the appellants will also be entitled to costs throughout. Since the respondent is running business in the shop in question, I therefore allow him a period of four months, which is maximum allowed under the Ordinance, for putting the appellants in vacant possession of the shop in question subject to his depositing monthly rent in the Court of the Rent Controller as and when it accrues due.

S. Q. Appeal allowed.