Syed AZHAR IMAM RIZVI vs Mst. SALMA KHATOON

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment dated 9-4-1984 of the Sind High Court; whereby the Rent Appeal of the petitioner calling in question his eviction on ground of default in payment of rent, was dismissed.

2. The facts briefly stated by the learned counsel for the petitioner are that the petitioner is a tenant in the premises in dispute since 1974. It was originally owned by Mr. Ansar Ahmad and Didar Ahmad to whom the petitioner was paying rent. It was purchased by the respondent landlady in 1978 through a registered deed. She alleged default in payment of rent from July, 1978 to November, 1978 and accordingly moved an application for petitioner's ejectment in November, 1978. She also pleaded other grounds for ejectment including personal requirement. The petitioner had made attempts to pay the rent to the previous owners for the months of September and October but they declined to accept the same. In his written statement the petitioner pleaded lack of notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 and also lack of relationship of landlord and tenant. The learned Rent Controller in his order dated 21st of October, 1979 found that no notice under section 13-A was served on the petitioner. The issue relating to the relationship of landlord and tenant however was found in favour of the respondent landlady. The learned Rent Controller fixed the next date within few days in order to pass an order for deposit of the arrears of rent and for further proceedings in respect of the other grounds for eviction. But in the meanwhile the respondent landlady filed an appeal against the finding regarding non---service of notice. And thus no order under section 13(6) was passed. The question came up before the High Court ultimately in second appeal and an order was passed in October, 1980 by the High Court for the deposit of arrears of rent which according to the learned counsel was complied with. But in the meanwhile on 3-12-1980 the respondent filed another application on the ground of default from July, 1978 up to December, 1980. According to the learned counsel a plea was taken against this application that no notice under section 13-A having been served the second application could not proceed. Notwithstanding the same the learned Rent Controller by his order, dated 31-5-1982 allowed this second application for petitioner's eviction on ground of default in payment of rent. An appeal filed from this order in the High Court having failed leave to appeal has now been sought.

3. It has been contended by the learned counsel that notwithstanding the finding by the Rent Controller in the first round in October, 1979 that relationship of landlord and tenant existed between the parties the petitioner was not required to offer rent to the respondent because she had failed to serve a notice on the petitioner under section 13-A .Before the filing of the second application. That in any case after the filing of the first application proceedings for ejectment of the petitioner having commenced he was not required to offer rent to the respondent landlady during the pendency of that application nor he was required in alternative to make a deposit with the Rent. Controller without waiting for an order to be passed under section 13(6) for the deposit of rent and the same having been passed nearly a year after the filing of the application, he was constrained to wait for that period and thereafter under the orders of the High Court the arrears were paid within the then allowed the; That the findings of the Rent Controller with regard to non- service of notice on the first application in October, 1979 would remain and operate as a bar to the second application without actual service of notice under section 13-A; and lastly that even if it is found as held by the High Court that the petitioner shall be deemed to have received notice under section 13-A when he received the copy of the application for eviction filed in the first proceedings in 1978 in the circumstances of the case the petitioner was entitled to a favourable exercise of discretion in his favour because as and when the order for deposit of rent was made by the High Court he faithfully complied with the same.

4. After hearing the learned counsel at length we do not find force in any of the contentions. The petitioner had in his written statement filed in the second round made the following assertion: "the opponent (the petitioner herein) came to know about the sale of the flat to the applicant for the first the when he was served with notice and copy of ejectment application in Rent Case No. 5218 of 1978."

5. The learned counsel was unable to deny that the petitioner had! Received the notice and copy of the ejectment application through registered post. Even if the same were not so received by him the face remains that the receipt of the ejectment application is not denied. It is also not denied that in 1978 the petitioner became aware of the sale made in favour of the respondent. It is also a fact that on account o. The said sale the issue regarding relationship of landlord and tenant was decided by the learned Rent Controller in favour of the respondent in October, 1979. In these circumstances the failure of the petitioner to offer the rent to respondent landlady even after October, 1979 was without any justification. The mere fact that the application for him ejectment was pending or that an order under section 13(6) had no: yet been passed would not absolve him of his duty under the Rent Restriction Law to pay/offer the rent to the landlady each month ors the.

6. The argument that he was permitted by law to withhold payment of rent till an order is passed under section 13(6) by the Rent Controller is neither supported by statute nor any principle. It is also not correct that after the admission by the petitioner that he had received a copy of the ejectment application in 1978 wherein the factum of sale in favour of the respondent had clearly been mentioned, he was entitled to any other formal notice under section 13-A . The receipt of the copy of the, ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of section 13-A of the Ordinance. And the mere fact that after about a year he made the deposit under compulsion of an order of deposit made by the High Court will not make any difference. The bar of res judicata or otherwise as contained in section 14 of the Ordinance will not operate insofar as the ejectment of the petitioner in pursuance of the second application is concerned. Although it related also to the same period of few months which was the subject-matter of the first application, yet the additional period from October, 1979 up to the filing of the second application for in December, 1980 furnished an independent cause of action. The second application for this second period would in any case be not barred.

7. The exercise of discretion against the petitioner in the afore-discussed facts and circumstances of the case is neither against any law nor principle, therefore, it does not merit interference by this Court. There is no force in this petition. It is accordingly dismissed.