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Second Appeal No. 243 of 1971, decided on 16th January 1976.

-- S. 13 read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30-Notice under S. 39-To be served upon statutory tenant, i.e., person in possession of promises at time of transfer of property to claimant-Person not in possession at time of transfer-Not protected by S. 30 unless such person derives title under person in possession.

Sughra Bai v. Assistant Collector P L D 1965 Kar. 337 ; Friends Cloth Store v. Amtul Aziz P L D 1911 Kar. 739 and Evan's case P L D 1964 S C 536 rel.

- S. 13 read with Displaced Persons (Compensation and Rehabilita tion) Act (XXVIII of 1958), S. 30-Notice under S. 30-Could not be an implied notice or received aliunde-Knowledge of transfer of disputed premises due to contest between parties before Settlement Authorities-Does not absolve landlord from observing provisions of S. 30-Provisions of S. 30 required to be observed very strictly.

-- S. 13 read with Displaced Persons (Compensation and Rehabilita tion) Act (XXVIII of 1958), S. 30-Landlord and tenant-Relation ship of-Does not exist so long as notice under S. 30 not served.

-- S. 13 -Demand by landlord of illegal rent or rent in excess of rent due-Does not absolve tenant from tendering rent lawfully due Tenant paying rent to Custodian, could have no difficulty in finding out rent due.

Muhammad Sabir v. Abdul Malik P L D 1967 Pesh. 96 not fol. Mazhar Ali Azhar v. Inzarul Islam P L D 1971 Lab. 104 and Muhammad Sadiq v. Mst. Sharifan Law Notes 1969 S C 78 rel.

-- S. 13(a) read with Displaced Persons (Compensation and Rehabili tation) Act (XXVIII of 1953), S. 30-Notice under S. 30-Trans feree owner of premises dying and notice served. on tenant reading "A son of H for himself and on behalf of his sisters''-Names of all heirs of transferee landlord, held, ought to have been given-Notice, held, not proper in circumstances.

Khalid M. Ishaque for Appellant.

S. Y. Khawaja for Respondent.

Date of hearing : 11th December 1975.

This second appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) arises out of the following facts.

Flat No. 7 on the first floor of Regal Mansion, Victoria Road, Karachi was transferred on 30th November, 1962 by Settlement Authorities to Mst. Aisha Bai the predecessor-in-interest of the respondents. The present appellant Mst. Saida Naim Hussain was also contesting for the transfer of this flat in her own favour. She was contesting this flat in terms of para. 1 .of Schedule 2 (b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to which I would refer as the Act. This para, of the Schedule allowed a claimant in possession or a parent, a son, a daughter, or spouse of such claimant, to apply for the transfer of the house under the relevant scheme. Mst. Saida Naim Hussain was not successful as the Writ Petition filed by her in the High Court of West Pakistan, Karachi Bench was finally dismissed on 18th March, 1966. But before that Mst. Aisha Bai died sometime in 1964. A notice was served by the legal heirs of Mst. Aisha Bai on Mst. Saida Nairn Hussain on 4th of April, 1966, calling upon her to pay monthly rent at the rate of Rs. 75. This demand was not acceded to and, no rent was paid till on 13th of July, 1966 a rent application for the ejectment of the appellant was filed before the Rent Controller. The ground, taken was that the appellant was in default of payment for 43 months I.e. from 1-121962 to June, 1966 at the rate of Rs. 75 amounting to a total of Rs. 3,225. In the written statement appellant Mst. Saida Naim Hussain gave the details of the litigation going on between the parties with respect to the premises in dispute. She however, denied that the fair rent of the premises was Rs. 75. She also denied if she was served with any notice. She, how ever, claimed that after the final decision of the flat in question in favour of Mst. Aisha Bai and her children through Letters Patent Appeal' decided on. 27th May 1966, she had requested the applicants to send accounts of the rent to enable her to make the payment, but it was the applicant who had neglected and failed to send the said accounts.

On these pleadings of the parties following issues were framed by the learned Rent Controller :-

"(1) At what rate are the applicants entitled to collect rent from the opponent

(2) Whether the opponent has committed default in payment of rent

(3) Whether the applicants have sent a registered notice as contemp lated under section 30 of the Act XXVIII of 1958

(4) Whether the opponent- is liable to be ejected in the circumstances of the case

(5) What should be the order "

The learned Rent Controller came to the conclusion that the landlord: applicants were entitled to collect rent at the rate of Rs. 53.75 per month. It was held that the appellant/tenant was defaulter and that, notice as required by section 30 of the Act had been duly served upon, her. Consequently the issue regarding the ejectment of the appellant, was found against her. She preferred an appeal before the learned Additional District Judge, Karachi, which was also dismissed, hence the present appeal.

The learned counsel for the appellant has contended that the notice dated 6th April, 1966 served upon Mst. Saida Naim Hussain, does not conform with the requirements of section 30 of the Act inas much as it has not been served on the person in possession of the disputed premises transferred to the applicant-landlords and that the amount of rent demanded under it is neither the rent at which rate the statutory tenant was paying rent to the Settlement Authorities, nor the rent in accordance with the latest assessment of the municipal committee or the local authority. The second objection taken is that admittedly Mst. Aisha Bai died before the service of this notice and, therefore, the requirements of section 13-A of the Ordinance had not been fulfilled' inasmuch as the heirs of Mst. Aisha Bai, who had become the new owners by inheritance of the property in dispute, had not given intimation of such transfer in the manner prescribed by that section.

As the notice dated the 6th of April, 1966 is the object of attack of the learned counsel for the appellant it would be proper to refer to it directly, which reads as follows:

"Under instructions from my clients, Mr. Abdul Ghani son of Haji Hasham, for self and on behalf of his sisters, I have to address you as under:

That you are occupying Flat No. 7, in the aforesaid building as a monthly tenant. This building, as you are aware, has been transferred to Mst. Aisha bai, mother of my clients on 30-11-62, vide P. T. O. No. 14636 and on her death has devolved upon them as her heirs and legal representatives. Since the date of transfer, you have not paid any rent and this is, therefore, to inform you and call upon you to pay the entire arrears from 1st December, 1962, upto March, 1966, for 40 months, at the rate of Rs. 75 p.m., amounting to Rs. 3,000, within the stipulated time, in default, my clients shall be reluctantly compelled to take necessary legal steps for your ejectment and recovery thereof at your risk as to costs and consequences."

The first ground of attack against this notice is that it has been addressed to the wrong person. Mst. Saida Naim Hussain no doubt contested the transfer of the flat in dispute in her favour against Mst. Aisha Bai, and this contest culminated in the decision of the Letters Patent on 27th May, 1966. After that decision Mst. Saida Nairn Hussain accepted the fact of transfer of the flat in dispute in favour of Mst. Aisha Bai, but, the learned counsel contends, Mst. Saida Naim Hussain was never a person in possession of the house in dispute as required by section 30 of the Act. The person in possession was actually Mr. Syed Hussain Ahmed. It was he who was the recorded tenant of the premises in dispute. In support of this contention the learned counsel has referred me to page 27 of the Property Register No. 2. This document is Exh. 9 in the record of the Rent Controller. It indicates the occupant of the evacuee property and in the column name of the head of the family with address and occupation' Syed Hussain Ahmed son of S. H. A. Hafiz appears. In addition to this documentary evidence the learned counsel relies upon the statement of Abdul Ghani respondent No. 1, who has in cross-examination, admitted that Ahmed Hussain, brother of the appellant, was in possession of the premises before it was transferred to his mother. This evidence conclusively proves that it was Syed Ahmed Hussain who was in possession of the premises in dispute and not Mst. Saida Naim Hussain, at the time of the transfer of the property to Mst. Aisha Bai. Therefore, it was Syed Ahmed Hussain who was the statutory tenant in terms of section 30 of the Act, and notice should have gone to him and not to anybody else, including the present appellant. In any case the notice given by Mst. Saida Naim Hussain is no notice in terns of section 30 of the Act. In Sughra Bai v. Assistant Collector (P L D 1965 Kar. 337) the, Central Government was the tenant of the bungalow transferred to the appellant in that case. The landlady served a notice to Assistant Collector Central Excise and Land Customs and no notice was served on the Government through the Secretary of the relevant department. It was held that 'the Central Government being the tenant, notice ought to have been given to the Government itself; if it is given to the Secretary to the Central Board of Revenue or to the Assistant Collector of Central Excise and Land Customs, Sukkur, then neither of these designations is adequate substitution for the Government of Pakistan itself.' In another case reported as Friends Cloth Store v. Amtul Aziz (P L D 1971 Kar. 739) it was held that notice on one of the partners was not a notice upon the firm as contemplated by section 30 of the Act. Here notice on Mst. Saida Naim Hussain cannot be termed as notice on Syed Ahmed Hussain who has been proved to be the statutory tenant of the premises in dispute. The learned counsel for the respondent has, however, contended that the parties had been litigating for this flat for more than 4 years and it was within the knowledge of the appellants that the premises had been transferred to Mst. Aisha Bai and, therefore, strict compliance of the provisions of section 30 was not necessary. But unfortunately, the argument runs counter to the rule laid down by the Supreme Court in Evan's case (P L D 1964 S C 536) where it was laid down that, the scheme of section, furthermore, appears to be to leave nothing to doubt; hence even the manner of the service of the notice is clearly provided for and the extent of the protection accurately defined. Even the circumstances in which the opponent would be deprived of this protection bas been specified and not left in doubt'. Then separately it has also been held that it was difficult to accept upon the wording of the section that such a notice could even be an implied notice or to have been received aliunde. In view of this law as laid down by the Supreme Court it is difficult to accept the contention raised by the learned counsel for the respondent, that the knowledge of transfer of the disputed premises received due to the contest between the parties before the Settlement authorities absolved the landlord from observing the provisions of section 30 of the Act. The provisions of this section were required to be observed very strictly and an express notice addressed to the person in possession of the premises in dispute was to be issued. This was necessary because section 30 recognises the person in possession to be the tenant of the premises under the transferee, and it is he who enjoys certain protection. Others, who do not fall in the category of 'the person in possession' do not enjoy the character of the statutory, tenant as contemplated by section 30, and are therefore not to be c addressed the notice under this section. Unless they derive title under such person in possession, they remain strangers to the relationship established by section 30 of the Act between the transferee and the person in possession.

Service of such notice is also necessary because, as held by the Supreme Court in Evan's case, it determines the date from which the statutory tenancy is to commence. The relationship of landlord and tenant between the transferee of an evacuee property and the person in possession of such property comes into being from the date of transfer of such property, if the notice, as required by proviso (b) to subsection (1) of section 30 of the Act, within one month of such transfer. In cases the notice is not served within this statutory period of one month such relationship will come into being only from the date of service of notice of transfer. Language of subsection (2) of section 30 of the Act is very clear in this behalf. So long as the notice, in pursuance o either of the provisions of section 30 is not served the relationship o D landlord and tenant does not exist. In the present case the notice no having been served on the proper person the relationship has yet to commence.

The learned counsel for the appellant has attacked the notice on another ground. According to Exh. 14 the rent which the tenant was paying to the Settlement authorities was Rs. 53.75 per month. The landlord through notice Exh. 10 demanded Rs. 75. It is contended by the learned counsel that this demand being in excess of the legal rent was arbitrary and, therefore, the tenant was under no obligation to pay any rent. In support of this contention the learned counsel has relied upon 'Mohammad Sabir v. Abdul Malik' (P L D 1967 Pesh. 96) wherein it hag been held that 'the tenant is required to be ready to offer the 'rent due' which means lawful rent and where the landlord demands, as in the instant case, the rent in excess of lawful rent, the tenant's readiness to pay the lawful rent would per se amount to have tendered the rent due.' But unfortunately, this ruling does not reflect the correct state of law because the tenant can never get out of his obligation to pay or tender the rent due. If the landlord demands an illegal rent, or rent in excess of the rent due, that demand does not absolve the tenant from tendering the rent which is lawfully due. In 'Mazhar Ali Azhar v. Inzarul Islam' (P L D 1971 Lah 104) it was held that the mere fact, that the amount of rent demanded by the landlord through notice under section 30 of the Act was excessive, does not render the notice invalid. In 'Mohammad Sadik v. Mst. Sharifan' (Law Notes 1969 S C 78) it was observed that the notice under section 30 is not rendered invalid merely because the rate of rent was not correctly mentioned. In the present case the tenant had been paying rent at the rates of Rs. 53/75 p.m. to- the Custodian and therefore had no difficulty in finding out the t' rent due. In view of this legal position the learned counsel for the appellant was quick to concede that the tenant was always liable to tender the lawful rent. In any case, this point has lost relevancy in the context of the present case because notice has been found to be not in conformity with section 30 and, therefore, the relationship of landlord and tenant between the transferee and the person in possession of the evacuee property has yet to come into being and therefore, the question of default would not arise.

Another objection, taken by the learned counsel for the appellant is that the provisions of section 13(1) of the Ordinance have not bee observed inasmuch as notice Exh. 10 does not specifically indicate the heirs of Mst. Aisha Bai. It merely referred to 'Abdul Ghani son of Haji Hashim for himself and on behalf of his sisters' on whose behalf the notice is purported to have been issued. This is again a valid objection. The names of all the heirs of a transferee landlord have to be given when notice is also required to be served through registered post an acknowledgment due. There is however, no bar if such notice is combined with any other notice. In fact no such objection was taken.

In view of this discussion I have come to the conclusion that the relationship of landlord and tenant is yet to be established between the respective heirs of the transferee and the person in possession of the disputed property, and in absence thereof the question of default in payment of rent cannot arise. I would, therefore, accept the appeal but leave the parties to bear their own costs.

S. A. H. Appeal accepted.

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