FARUQI BEGUM Versus AMIR ALI WARSI
This First Rent Appeal is filed against the order of the learned Rent Controller and III Senior Civil Judge, Karachi, dated 23‑10‑1983, whereby he rejected the application of the appellant for ejectment of the respondent.
2. Heard Mr. Maroof Ali Khan, learned Advocate for the appellant. Respondent and his advocate called absent.
3. Brief facts of the case are, that the appellant is a landlady and the respondent is her tenant in a House No. 161/2, Drigh Colony, Karachi, at the monthly rent of Rs. 200. The respondent has failed to' pay rent for 10 months from 1‑4‑1980. The appellant has further submitted, that she requires the premises for her personal bona fide use as she does not own any other house and at present is residing with her brother. The respondent has also damaged the premises. The respondent in his written statement claimed, that house had been taken on rent by him from landlady, Mst. Sultana Begum, at the rate of Rs.100 per month and, that he never committed default. He claims, that for the last few years, appellant collects the rent on behalf of Mst. Sultana Begum, but now she wants. to enhance the rent and, therefore, filed rent application because he refused to pay enhanced rent. He also claimed, that he incurred an amount of Rs.3,000 on repair of the house.
4. On the pleadings of the parties the learned Rent Controller framed the following issues.
"(1) Whether the opponent is defaulter in payment of rent?
(2) Whether the applicant requires the premises for her personal bona fide use?
(3) Whether the opponent has committed such acts which have impaired the material value or utility of the premises?
(4) Whether the applicant has failed to serve the notice under section 18 of Sind Rented Premises Ordinance, 1979, to the opponent?
(5) What is the rate of rent?
(6) What should the order be?"
5. On Issue No.2 the learned Rent Controller came to the conclusion, that the appellant requires the disputed premises for her personal bona fide use and evidence led by the applicant viz. appellant is reliable. No appeal or cross‑objection has been filed by the respondent against this findings of the Rent Controller on this issue. The findings of the learned Rent Controller on Issue No.2 is based on the sound reasoning and appears to be correct.
6. The only reason why the ejectment application of the appellant was rejected, was the finding of the learned Rent Controller on Issue No.4, that she had not given notice of the transfer to the respondent under section 18 of Sind Rented Premises Ordinance, 1979. Admittedly, the house in question belonged to Mst. Sultana Begum, mother of the appellant. It was transferred to the appellant through Will in 1973. In the opinion of the learned Rent Controller notice under section 18 of said Ordinance was necessary. The very wording of section 18 of the Sind Rented Premises Ordinance, 1979, does not support the opinion of the learned Rent Controller, section 18 reads as under:‑
"Where the ownership of a premises, in possession of the tenant, has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days, from the date when the intimation should, in normal course, have reached the tenant."
7. From the plain reading of this section it is clear, that in absence of notice, the tenant shall not be deemed to have defaulted in payment of rent for the purpose of clause (ii) of subsection (2) of section 15. Thus, the protection given to the tenant in absence of notice is only for limited purpose and does not ,debar the landlord from claiming the premises for his personal use even in absence of such notice. This view finds support from the decision of Supreme Court in case of Muhammad Hussain v. Haji Choudhry Umer Bux and another P L D 1982 S C 212. It is held therein, that "section 13/B of the West Pakistan Urban Rent Restriction Ordinance, deals with question of default in payment of rent and protects tenant against such allegation .... Ejectment application filed on the ground other than the default in payment of rent, was not affected by provisions of section 13/B and the application for ejectment by transferee/landlord on the ground of personal requirement maintainable even though notice under section 13/B served on the tenant.
8. It may be pointed, that the provisions of section 13/B of West Pakistan Urban Rent Restrictions Ordinance, 1959, now repealed, are similar to the provisions contained in section 18 of the Sind Rented Premises Ordinance, 1979.
9. Considering the above factual and legal position, the appeal of the appellant is allowed on the ground, that she requires the premises for her personal bona fide use, and the order of the learned Rent Controller is set aside. The respondent is directed to hand over the vacant peaceful possession to the appellant within sixty days.
There are no orders as to costs.
H.B.T. Appeal allowed.