MUHAMMAD AHSAN Versus NASEEM KHATOON.

This appeal is directed against the order of the Vth Rent Controller, Karachi West, dated 26‑4‑1986 whereby he directed the appellant to handover vacant possession of the house in question to the respondents within 30 days thereof.

2. The respondents had filed an application for ejectment of the appellant on the ground of default in payment of rent as well as on the ground of requirement thereof for bona fide personal use and occupation. The respondent No.l is widow of late Abdul Hafeez and respondents Nos. 2 and 3 are his daughters. Late Abdul Hafeez had rented out the premises in dispute which consisted of one room and one enclosure on second floor of his house bearing No.1009/Block 4, Liaquatabad, Karachi at the rate of Rs.315 per month to the opponent. Late Abdul Hafeez died on 17‑4‑1981. The respondents being the legal heirs became the owners of the suit premises and the appellants became their tenant. The respondents served a notice upon the appellant as required by section 18 of Sind Rented Premises Ordinance, 1979 calling upon the appellant to pay the arrears of rent from April, 1981 as well as the future rent to them. The appellant did not reply to this notice nor paid or tendered the rent.

3. The appellant filed written statement and denied the relationship of landlord and tenant between the parties. He also denied service of notice upon him under section 18 of Sind Rented Premises Ordinance, 1979. He however admitted that late Abdul Hafeez was his landlord. He further stated that Mst. Aziza Begum, the second wife of Abdul Hafeez, became the landlady of the appellant after the death of Abdul Hafeez. He had been regularly paying the rent to her at the rate of Rs.75 per month. He has alleged that the respondents are not legal heirs of the deceased Abdul Hafeez.

4. The learned Controller took up the issues relating to the relationship of landlord and tenant between the parties and the default in payment of rent and decided the same in favour of the respondents. Issue No.3 was decided against the respondents. For the purpose of this appeal the parties have chosen to confine themselves to these two issues. I also, therefore, take up these two issues. From the' evidence that has come on record it is quite clear, rather admitted position, that Abdul Hafeez had rented out the disputed premises to~ the appellant. It is also admitted that the respondent No.1 was first wife of the deceased while respondents Nos.2 and 3 are daughters o A deceased Abdul Hafeez. Hence there is no doubt that there was relationship of landlord and tenant between the parties and the application was maintainable as even a co‑owner can maintain an application for ejectment under section 15 of the Sind Rented Premises Ordinance, 1979. Apart from that an application under Order I, Rule 10, C.P.C. was made by Mst. Aziza Begum, the second widow of Abdul Hafeez wherein she has requested to be joined as one of the respondents. She has fallen in line with respondents and has alleged B that the appellant has not paid the rent since 1981 and that she has come forward to be joined as a respondent' to avoid multiplicity of the litigation. It is. therefore, quite clear that the plea of the appellant that he is paying rent to the second widow of deceased Abdul Hafeez is absolutely false and baseless.

5. So far as the service of notice under section 18 of Sind Rented Premises Ordinance, 1979 is concerned it may be pointed out that the respondent had filed her affidavit of evidence and had produced photo copies of the notice, dated 23‑9‑1982 and the notice, dated 24‑10‑1982, and postal registration receipts as exhibits 1/2 to 1/5. The first notice was sent to the appellant on the address of the premises in dispute which is also shown by the appellant as his address in the title of the appeal. Hence the presumption is that this notice must have reached the appellant. It was however, returned undelivered. Second notice was sent by the respondents to the appellant on the address of House No.G‑15/2, Jehangir Road, Karachi‑5, which was delivered at the above address and the signature of the person who received the same is illegible. It is contended by the Advocate for the appellant that the appellant continued to reside in the premises in dispute and had never shifted to the latter house as alleged by the respondents. Hence he has denied the service of notice upon the appellant.

6. Reliance was placed by the appellant's counsel on the case of S.M. Hayat v. Ikramul Haq Malik reported in 1984 C L C 3176, where it was held that non‑service of notice under section 13‑A of West Pakistan Urban Rent Restriction Ordinance, 1959 demolished the case of the landlord against the tenant as far as default was concerned.

The ruling will not apply to the facts of the present case as the service of the notice under section 18 of Sind Rented Premises Ordinance, 1979 has been proved as already held by the learned Controller as such it cannot be equated with this case. He then relied upon .the case of Sabu Mal v. Kika Ram reported in 197'3 SCN'IR 185 wherein 'it was also held that when notice under section t.3‑A of West Pakistan Urban Rent Restriction Ordinance was not given by the transferee‑landlord then the tenant shall not be deemed to have defaulted in the payment of rent. This ruling was also referred to in the case of S.M. Hayat and it is also distinguishable on the same ground that in the present case service of notice under section 18 of Sind Rented Premises Ordinance, 1979 has been proved to the satisfaction of the learned trial Court as well as to the satisfaction of this Court.

7. I have given my thoughtful consideration to the evidence on record as well as to the contentions of the Advocates of both the parties. I find myself in agreement with the findings of the learned Controller that the notice under section 18 of Sind Rented Premises Ordinance, 1979 was duly served upon the appellant. Even otherwise his admission that he was paying rent to the second widow Mst, Aziza Begum is sufficient admission on his part of the fact that he had knowledge of the death of Abdul Hafeez and of the fact that the respondents were his heirs.

Lastly it was contended by the appellant's counsel that the agreement of tenancy was oral and, therefore, the landlord could not base application for ejectment on such agreement. The application would, therefore, be incompetent. He has relied upon the case of Habib Ahmad v. Liaquat Hussain reported in P L D 1985 Kar. 741, where it was held that an application for ejectment in a case where agreement was oral would be incompetent. Without going into the discussion ac to what is the effect of not reducing the agreement of tenancy into writing on the competence of the ejectment application, I may state that this ruling also does not apply to the facts of the present case as in the case under ruling the tenancy had started after enforcement of Sind Rented Premises Ordinance, 1979 while in the present case the premises were given on rent by late Abdul Hafeez to the appellant prior to the enforcement of Sind Rented Premises Ordinance, 1979.

8. Under such circumstances I do not find any reason whatsoever to interfere with the findings of the learned Controller.

9. There is yet another point against the appellant to which my attention was drawn by the Advocate for the respondents. This Court had directed to the appellant to deposit the arrears of rent at the rate of Rs.75 per month from 1‑4‑1983 till 30th November, 1986 amounting to Rs.3,225 and current rent at the same rate from December, 1986 by 10th of every succeeding month. An application was made that the appellant had failed to comply with the said order in that he had not deposited the arrears amounting to Rs.3,225. The report of the Nazir of this Court was called who confirmed this default.

10. Under these circumstances I do not find any reason whatsoever to interfere with the order of ejectment passed by the learned Controller. I, therefore, dismiss the appeal. The period of 30 days, which was allowed by the learned Rent Controller to the appellant to vacate the premises, will count from the date of this order.

11. These are the reasons for which I had dismissed the appeal by my short order earlier today.

A.A./M‑428/K Appeal dismissed.