SABU MAL vs KIKA RAM Alias HEMAN DA S

ORDER

1. ANWARUL HAQ, J.-This petition for special leave to appeal has arisen out of an ejectment application filed against the petitioner by the respondent in the Court of the Civil Judge and Rent Controller at Jacobabad in respect of house bearing No. CS-444 situate in Ward No. 5 of Jacobabad Town. The property had been let out to the petitioner by the previous owner, Mst. Karmi Bai, from whom the respondent had purchased the same in May 1964. In the application instituted on the 4th of November 1968, the ejectment of the petitioner was sought on the grounds of default in payment of rent, subletting and bona fide personal requirement of the landlord. The application was allowed by the learned Rent Controller by his order dated the 24th of March 1970, on the grounds of sub--letting and personal need. The issue on the question of default was found against the landlord.

2. The petitioner's appeal was dismissed by the learned Additional District Judge, acting as appellate authority under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), on the 22nd of December 1970, although the finding of the learned Rent Controller as regards subletting was set aside.

3. Aggrieved by the order of the appellate authority the petitioner filed a second appeal in the High Court of Sine & Baluchistan at Karachi which has, however, been dismissed by a learned Single Judge of that Court by his order dated the 7th of November 1972. The High Court has upheld the concurrent finding of the two Courts below regarding the personal need of the landlord and has also observed that the non-service of notice by the transferee-landlord in terms of section 13(A) of the Ordinance had no effect on the maintainability of the ejectment application on grounds other than that of default in the payment of rent.

4. Special leave to appeal is sought on the following grounds:-

(a) that notice under section 13(A) of the Ordinance was obligatory under the Statute, and in its absence the relationship of landlord and tenant did not come into existence between the parties, with the result that the learned Rent Controller had no jurisdiction to proceed with the ejectment application;

(b) that the finding recorded by the Rent Controller and upheld in appeal by the learned Additional District Judge and the High Court, regarding the personal need of the landlord is not sustainable in law for the reason that the landlord owns several other houses in the same urban area; and

(c) that in any case subsequent to the filing of the second appeal by the petitioner in the High Court, the landlord had succeeded in getting another house vacated from another tenant, and therefore, his personal need should have been met by occupying that house, but instead that other house has been again let out by the landlord, thus showing that his personal need was not bona fide.

5. After hearing the learned counsel at some length, we are of the view that there is no merit in these submissions.

6. The term "landlord" is defined in clause (c) of section 2 oh the Ordinance as meaning any person for the time being entitled to receive rent in respect of any building or rented land. Whether on his own account or on behalf of any other person or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and every person from time to time deriving title under a landlord. It will be seen that the transferee from the original landlord would be covered by this definition as a person for the time being entitled to receive rent in respect of the rented building or land. Such being the case the relation--ship of landlord and tenant came into existence between the parties before us once the rights, title and interest of the original landlord were transferred, to the respondent under the sale effected in May 1964. This tenancy was in no way dependent upon the service of a notice under section 13-A of the Ordinance.

7. The cases relied upon by the learned counsel for the petitioner, namely, Muhammad Amin v.

8. Ghulam Murtaza (PLD1967Lah.1020), and Dr. Miss I. Ali Muhammad v. Muhammad Shafiq (P L D1971 SC 494) are of no assistance in this behalf.

9. In the first mentioned case, the transferee of the property under a registered sale deed was held not to form within the definition of the landlord for the reason that by means of a stipulation in the sale deed the original landlord had retained to himself the right to receive rent in respect of the building until such time as the ejectment application filed by him, prior to the sale, had been decided and disposed of. The learned Judge, who decided this case, observed that the stipulation contained in the conveyance was a contract to the contrary within the meaning of section 109 of the Transfer of Property Act, 1882, so far as the right to possession was concerned, because by it the delivery of possession had been made dependent upon the decision of the petition for eviction filed by the lessor. It will be seen that the facts of the present case are altogether distinguishable from the case of Mohammad Amin as there was no reservation of any kind at the time of the transfer of the property to the respondent, and all rights passed to him.

10. The second case mentioned at the Bar is also based on distinguishable facts, as it was held therein that although the definition of the term "landlord", as given in the Ordinance, included a trustee, yet the phrase "for his own use", as occurring in section 13(3)(a)(ii) of the Ordinance had reference to the landlord himself in person and not to any trustee or administrator or executor acting on his behalf. In the present case it can hardly be said that the real landlord continues to be alienor of the property as distinguished from the alienee who has assumed full rights, title and interest of the previous landlord.

11. The language employed in section 13(A) of the Ordinance makes it abundantly clear, as observed by the High Court, that it only deals with one situation, namely, the question of default in the payment of rent. If the prescribed notice is not given by the transferee-landlord then the tenant shall not be deemed to _ have defaulted in the payment of rent for the purpose of B clause (i) of subsection (2) of section 13 of the Ordinance, and such default will arise only if the rent is not paid within 30 days from the date of the notice. In our view, the High Court was right in observing that an ejectment application placed on grounds other than that of default in the payment of rent, is not at all affected by the provisions of section 13 (A).

12. The contention that the finding on the question of the personal need of the landlord is not sustainable in law has no substance, as all the Courts below have come to the conclusion, after examining the evidence brought on the record, that the landlord was living in a small rented accommodation situated in the premises of a temple, and he bona fide required the house in dispute for his personal residence. If a landlord possesses more than one house in the same urban area, the choice as to the house in which he would like to live himself is surely a matter within his prerogative and discretion, and the law does not C give either to the tenant or to the Rent Controller the power to determine where the landlord should personally reside. The law, however, provides an adequate safeguard by stipulating in subsection (4) of section 13 of the Ordinance, that the tenant pray be put back in possession if the landlord does not occupy the premises himself after getting them vacated on the ground of personal need. Subsequent litigation in respect of another house owned by the respondent is thus irrelevant to the present dispute.

13. For the foregoing reasons, the petition fails and is hereby dismissed.