ABDUL AZIZ Versus YAHYA

MUHAMMAD HUSSAIN ADIL KHATRI, J.‑‑‑ This rent appeal has been filed assailing eviction order, dated 30‑3‑1988, passed by the Ist Senior Civil Judge and Rent Controller, Hyderabad, in Rent Application No.127 of 1979, whereby his defence was struck off under section 16(2) of the Sindh Rented Premises Ordinance (XVII of 1979) (hereinafter referred to as the said Ordinance).

2. Briefly the facts are that the appellant was rented out Shop No.9, situated in Habib Centre, Liaquat Colony, Hyderabad, on monthly rent of Rs.150 by one Haji Razzaque Jano. The rent application was filed by the said owner against the appellant on 1‑3‑1979 for his eviction under section 15 of the said Ordinance on the ground that he had failed to pay rent from March, 1978, During pendency of the rent case, the said owner sold the said property to the present respondents, who are his son and daughters, under sale‑deed registered on 28‑6‑1979. After purchase of the property, the respondents served notice dated 11‑8‑1989 through their Advocate intimating the appellant about the purchase of the said property as required under section 18 of the said Ordinance and subsequently applied for substitution of their names as applicants in place of the said owner in the rent case. The Rent Controller by his order dated 13‑3‑1980, dismissed the said application of the respondents. The respondents filed F.R.A. No.419 of 1980 before this Court which was allowed by judgment dated 12‑10‑1983.

3. By order dated 23‑10‑1979, passed by the learned Rent Controller under section 16(1) of the Ordinance, the appellant was directed to deposit arrears of rent from March, 1978 to November, 1987 at the rate of Rs.150 per month amounting to Rs.17,550 within two months from the date of the order and also directed him to deposit future monthly rent from December, 1987 at the same rate on or before 10th of each calendar month.

On 15‑3‑1988, the respondents filed application under section 16(2) of the Ordinance for striking off the defence of the appellant, as he had failed to comply with the aforesaid order, dated 7‑11‑1987. The report was sought from the Nazir, who, after .verification from the record, reported that no rent had been deposited by the appellant. Consequently, the impugned order was passed.

4. I have heard the learned Advocate Mr. Hakim Ali Siddiqui for the appellant and Mr. Abdul Sattar Kazi for the respondents.

The learned Advocate for the appellant has contended that (1) the appellant has‑been condemned unheard as no opportunity was provided to him to file his objections to the application under section 16(2) of the Ordinance, (2) the learned Rent Controller has not considered the plea of the appellant raised in‑ the written statement to the effect that the appellant cannot be evicted in respect of the alleged default committed at the time when the respondents were not the owners of the premises in question, (3) that the appellant had been paying rent and electric charges to the previous owner who did issue the rent receipts and he was not in default and (4) the learned Rent Controller ought to have decided the main case instead of passing the impugned order, whereby the defence of the appellant was struck off.

5. First submission of the learned Advocate for the appellant does not appear to be well founded. The application under section 16(1) of the Ordinance was filed by the respondents on 15‑3‑1988 and on the same day notice was ordered. On 22‑3‑1988, the learned Advocate for the appellant filed an application for adjournment on the ground that he was not able to contact the appellant for seeking instructions. The matter was adjourned to 26‑3‑1988. The learned Advocate for the appellant again filed application for adjournment on the ground that the objections could not be prepared and moreover, he wanted to serve a notice on the appellant for withdrawal of his power from the case. The matter then came up before the Court on 30‑3‑1988 and the adjournment was sought on the ground that the appellant was out of station and was not in contact with the learned Advocate. The last application was dismissed and the impugned order was passed. The grounds stated for adjournment by the learned Advocate for the appellant from time to time, disclose that the appellant was negligent in defending the eviction proceedings and was not in contact with his Advocate. Under these circumstances the learned Rent Controller had no option but to strike off his defence.

6. With regard to the second submission the only contention raised by the learned Advocate for the appellant was that the respondents were not entitled to any order of eviction as the alleged default pertained to the period before the property was purchased by them and it was for the respondents to establish that they were entitled to evict the respondents on the ground of the said default. He did not cite any rule of law or authority in support of his contention. .

It is settled rule of law that any cause of action which is not personal to the landlord, ensures for benefit of the subsequent purchaser who can seek ejectment on account of such cause of action in the rent proceedings pending at the time of transfer of property. Grounds of eviction like default in payment of rent and subletting have been treated as such causes of action.

(i) In Mst. Sardar Begum v. Gulfaraz Khan PLD 1967 Pesh. 176, Muhammad Safdar Qureshi purchased property from Mst. Sardar Begum during the pendency of the appeal arising from the rent proceedings. The said purchaser applied to be joined as a party. It was held that the purchaser being landlord as contemplated in clause (c) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959 was entitled to be joined as a party.

(ii) In Messrs Add Brothers Karachi Ltd. v. Messrs Amin Art Press and another PLD 1976 Kar. 53, it is observed:‑‑‑

" 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, interruption 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 rights, interest, benefits and advantages 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 on the principles underlying the Transfer of Property Act and is to be preferred only in case of inconsistency."

(iii) In Muhammad Hafeez v. Muhammad Suleman and another 1979 CLC 757, a learned Judge of Lahore High Court has laid down that the cause of action which accrued to the original landlord on the basis of subletting of shop in dispute by the second respondent (tenant) enures for the benefit of first respondent (purchaser). also, and, therefore, he could ask for ejectment of second respondent and the appellant (sub‑tenant) on the score of that cause of action.

(iv) In the case of Zahoor Ahmed Qureshi v. Syed Ijaz Ali Rizvi etc. 1980 CLC 1223, the landlord sold the property during pendency of the rent case filed against the tenant on the ground of personal requirements and sub letting. The purchaser applied to be joined as a party before the Rent Controller but such application was dismissed. The said order was reversed in appeal on the ground that the purchaser though could not prosecute the rent case on the ground of personal requirement but could do so in so far as .the ground of subletting is concerned. The matter came up before the learned Judge of the Lahore High Court who relying on the rule laid down in (1) Syed Muhammad Ali and another v. Jamil Ahmed PLD 1976 Kar. 820, (2) Mst. Sardar Begum v. Gulfaraz Khan (supra) and Muhammad Umder and another v. Dr. Amina Ashraf PLD 1977 Kar. 305 held as under:‑‑‑.

"In all the three authorities cited just above it was ruled that when the property involved in any ejectment proceedings is transferred during the pendency of those proceedings the purchaser thereof can be substituted in place of the original landlord. No doubt, in one of these authorities the plea of subletting was raised for seeking ejectment of the tenant but the principle which can be deducted therefrom is that if a landlord takes out ejectment proceedings against his tenant on any, ground which is not personal to him (original landlord), his successor -in‑interest can also prosecute these proceedings. The ground of sub letting too is not personal to a landlord. I, therefore, agree with the learned Additional District Judge that Mst. Surraya Jabeen could prosecute the ejectment proceedings on the said ground."

(v) In the case of Muhammad Ishaque v. Abdullah and others 1982 CLC 665, Ajmal Mian, J. (as he then was) held that a person purchasing a premises from the landlord during the pendency of an appeal succeeded to all the rights which have already accrued to the previous landlord and that the' purchaser is entitled to prosecute rent application on the ground of default which was available to the previous landlord. His Lordship also relied on the aforesaid case of Adil Brothers.

(vi) In the case of Arshad Mahmood Siddiqui v. Muhammad Haroon 1984 CLC 1750 another learned Judge of this Court followed the rule laid down in the cases of Adil Brothers Karachi and Muhammad Ishaque (supra).

(vii) In the cases of Abdul Rauf v. Nawab Ali and 3 others PLD 1986 Kar. 117, Abdur Rehman, J. referring to the cases of Adil Brothers and Zahoor Ahmad (supra) observed as under:‑‑‑

"It is a settled law that where default has been committed by tenant establish that they were entitled to evict the respondents on the ground of the said default. He did not cite any rule of law or authority in support of his contention.

It is settled rule of law that any cause of action which is not personal to the landlord, ensures for benefit of the subsequent purchaser who can seek ejectment on account of such cause of action in the rent proceedings pending at the time of transfer of property. Grounds of eviction like default in payment of rent and subletting have been treated as such causes of action.

(i) In Mst. Sardar Begum v. Gullaraz Khan PLD 1967 Pesh. 176, Muhammad Safdar Qureshi purchased property from Mst. Sardar Begum during the pendency of the appeal arising from the rent proceedings. The said purchaser applied to be joined as a party. It was held that the purchaser being landlord as contemplated in clause (c) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959 was entitled to be joined as a party.

. (ii) In Messrs Adil Brothers Karachi Ltd. v. Messrs Amin Art Press and another PLD 1976 Kar. 53, it is observed:‑‑‑

" Under section 8 of the 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, interruption 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 rights, interest, benefits and advantages 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 on the principles underlying the Transfer of Property Act and is to be preferred only in case of inconsistency."

(iii) In Muhammad Hafeez v. Muhammad Suleman and another 1979 CLC 757, a learned Judge of Lahore High Court has laid down that the cause of action which accrued to the original landlord on the basis of subletting of shop in dispute by the second respondent (tenant) enures for the benefit of first respondent (purchaser). also, and, therefore, he could ask for ejectment of second respondent and the appellant (sub‑tenant) on the score of that cause of action.

(iv) In the case of Zahoor Ahmed Qureshi v. Syed Ijaz Ali Rizvi etc. 1980 CLC 1223, the landlord sold the property during pendency of the rent case filed against the tenant on the ground of personal requirements and sub letting. The purchaser applied to be joined as a party before the Rent Controller but such application was dismissed. The said order was reversed in appeal on the ground that the purchaser though could not prosecute the rent case on the ground of personal requirement but could do so in so far as the ground of subletting is concerned. The matter came up before the learned Judge of the Lahore High Court who relying on the rule laid down in (1) Syed Muhammad Ali and another v. Jamil Ahmed PLD 1976 Kar. 820, (2) Mst. Sardar Begum v. Gulfaraz Khan (supra) and Muhammad Umder and another v. Dr. Amina Ashraf PLD 1977 Kar. 305 held as under:‑‑‑.

"In all the three authorities cited just above it was ruled that when the property involved in any ejectment proceedings is transferred during the pendency of those proceedings the purchaser thereof can be substituted in place of the original landlord. No doubt, in one of these authorities the plea of subletting was raised for seeking ejectment of the tenant but the principle which can be deducted there from is that if a landlord takes out ejectment proceedings against his tenant on any ground which is not personal to him (original landlord), his successors-in‑interest can also prosecute these proceedings. The ground of sub letting too is not personal to a landlord. 1, therefore, agree with the learned Additional District Judge that Mst. Surraya Jabeen could prosecute the ejectment proceedings on the said ground."

(v) In the case of Muhammad Ishaque v. Abdullah and others 1982 CLC 665, Ajmal Mian, .T. (as he then was) held that a person purchasing a premises from the landlord during the pendency of an appeal succeeded to all the rights which have already accrued to the previous landlord and that the' purchaser is entitled to prosecute rent application on the ground of default which was available to the previous landlord. His Lordship also relied on the aforesaid case of Adil Brothers.

(vi) In the case of Arshad Mahmood Siddiqui v. Muhammad Haroon 1984 CLC 1750 another learned Judge of this Court followed the rule laid down in the cases of Adil Brothers Karachi and Muhammad Ishaque (supra).

(vii) In the, cases of Abdul Rauf v. Nawab Ali and 3 others PLD 1986 Kar. 117, Abdur Rehman, J. referring to thc. cases of Adil Brothers and Zahoor Ahmad (supra) observed as under:‑‑‑

"It is a settled law that where default has been committed by tenant during tenancy of previous landlord; such default, held, would subsist, for benefit of subsequent landlord as well:"

(viii) The same view was expressed in Khuda Bux and others v. Teecomal and others 1986 CLC 1923.

(ix) In the case of Kasim Tar Muhammad v. Mst. Sher Bano and another 1987 SCMR 380, it was observed that a person upon whom rights had devolved during the pendency of the proceedings in the original Court, can apply for permission to continue the appeal, even if, no application under Order XXII, Rule 10, C.P.C., was made in the original Court. Their Lordships repelling the contention that on sale of the property the relationship of landlord and tentant would cease to exist between the parties, observed as under:‑‑‑

"We are unable to accept this proposition that on the transfer of the ownership rights by a landlord during the pendency of an ejectment application, the application would ipso facto become infructuous and liable to be dismissed for want of relationship of landlord and tenant between the parties. We have not been shown any provision of law or principle of law which would bring about such a result. At best the person upon whom the ownership rights devolved by virtue of the transfer, can be impleaded as a party to continue the proceedings."

(x) The rule laid down in the above case has been recently affirmed in the case of Mazharul Islam and another v. Mst. Mafia PLIJ 1991 SC 835. Their Lordships' observations are as under:‑‑‑

"Having held that there was no assignment of the arrears of rent by the previous owner of the property in question in favour of the respondent under the sale‑deed, the question arises, whether ejectment could be sought on the ground of default in respect of the above period by the respondent. It seems to be a well‑settled proposition of law that if during the pendency of the ejectment proceedings on the ground of default the property is sold, the purchaser/transferee can continue to prosecute such proceedings for his benefit."

7. In support of his third contention, the learned counsel submitted that the appellant had specifically raised the plea that he had paid the rent to the previous landlord but such plea has not been considered. The contention precisely appears to be that since the appellant had paid the rent, on the ground of default whereof, the eviction application was filed, therefore, firstly the rent case itself was not maintainable for such default and secondly such rent could not have been included in the arrears of rent. He relied on Asad Brothers v. Ibadat Yar Khan 1991 SCMR 986 and Riazul Hassan v. Muhammad Khaleeq Siddiqui 1986 CLC 1554. In the first case the Supreme .Court held that a tenant against whom an order under section 16(2) of the Ordinance, striking off his defence, has been passed is entitled to challenge the validity of the order passed under section 16(1) in appeal of the final order of eviction passed against him. Relying on the said authority the learned counsel for appellant emphasised that the Rent Controller before passing the order for deposit of rent ought to have made an inquiry and determined the amount due and payable in view of the appellant's specific plea that no rent was due and since it was not done, the order under subsection (1) of section 16 was liable to be set aside being an illegal order and the appellant cannot be made to suffer the consequences of an illegal order. The submission is misconceived. In the said authority itself the Hon'ble Supreme Court has observed‑‑‑ "this does not mean that in any dispute with regard to the quantum of rent the Rent Controller should finally determine the arrears of rent due or the rate of rent payable."

In so far as the question of arrears of rent is concerned, in view of the rule laid down in the said authority the learned Rent Controller is not called upon to determine the arrears finally, though he is required to determine the B arrears tentatively, for passing order under section 16(1) of the Ordinance.

The object sought to be achieved by subsection (1) of section 16 of the Ordinance is to secure the rent payable to the landlord, before determination of the issue of default, if any committed by the tenant.

In this case rate of rent was not in dispute. The right of the respondents to realize rent and particularly from date of Purchase of the property i.e. 28‑6‑1979, was also not in dispute. The devolution of right of eviction on the respondents on the ground of default committed during ownership of the previous landlord is recognized by law. All that was required to be considered was the appellant's plea that he had paid the rent to the previous owner for which default was alleged. There was no material before the Court except the word of appellant. The learned Rent Controller looked into the said plea of the appellant and observed that it was to be established by evidence. As such no exception can be taken to the order, directing the appellant to deposit rent in Court.

The plea of the appellant that he had paid rent to the previous owner who had not issued rent receipt, was his defence against the main case. To avail opportunity to prove the said defence, he was under an obligation to comply with the order directing him to deposit rent. But unfortunately he ignored and disregarded the said order and consequently his defence was struck off.

Under the scheme of the said law. tenant stands denuded and deprived of his right to defend the case and order of eviction follows as necessary consequence, if he fails to comply with the directions under the said subsection. If the proposition advanced on behalf of the appellant is accepted, it would render the said provisions redundant, in those cases where the sole ground urged is default in payment of rent.

It is further noted that although the order under section 16(1) was[ passed on 7‑11‑1987, the appellant not only failed to deposit the arrears of rent but also future monthly rent. No explanation whatsoever has been offered for having not deposited the future rent. There is, therefore, no escape from the conclusion that his eviction has been ordered in accordance with law. In the case of Wasim Ahmed (supra), plea of the tenant that he had already deposited the rent before passing the order under section 16(1) of the Ordinance was accepted by this Court and, therefore, the order striking off his defence passed by the Rent Controller was set aside. The said case does not advance the plea of the appellant at all as it is not the case of the appellant that he has deposited the rent and such plea was not taken even at the time of hearing of this appeal.

8. It was lastly contended by the learned counsel that keeping in view the fact that the witness of the respondents was already cross‑examined and only appellant was to be cross‑examined, the Rent Controller ought to have decided the main case instead of striking off the defence of the appellant. He relied on the case of Khadim Hussain Abidi v. Geti Ara Begum 1984 CLC 68. In the said case, no doubt, a learned Judge of this Court had set aside the order under section 16(2) of the Ordinance on the ground that the learned Rent Controller had passed the said order at the stage when only appellant/tenant was to be cross‑examined but such view was taken in the peculiar circumstances of the said case. The learned Rent Controller while passing the order under section 16(1) of the Ordinance had not considered the plea of the tenant with regard to the arrears of rent. In so far as the present case is concerned, the learned Rent Controller has considered the plea of the appellant as already noted above. In the said reported case, as it appears from the judgment, there was no default with regard to payment of future rent. Neither in the memo. of appeal there is any assertion that the directions contained with regard to the future rent have been complied with, nor the learned Advocate at the time of hearing of this appeal made any such submission. Under such circumstances, the rule laid down in the said authority cannot .be pressed into service.

The learned Advocate also referred to some other authorities which are not relevant to the issues involved and, therefore, I do not think it necessary to refer to the same.

The appeal is, therefore, dismissed. The appellant is allowed two months' time to vacate the premises in question, subject to deposit of all arrears of rent within seven days from the date of announcement of this judgment any future rent.

H.B.T./A‑1355/K

Appeal dismissed.