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Second Appeal No. 68 of 1979, decided on 8th February, 1983.
-- S. 13---Death of tenant-Default-Period of default-Actual date of death of tenant not ascertainable--Period of default as given about five years in ejectment application also vague-Finding of First Appellate Authority that allegations of landlord very ambiguous and no evidence on record available regarding actual period of default, held, justified.
S. 13-A & 13 (2) (i) - Application under S. 13-A - Tenant cannot be deemed to have defaulted in payment of rent for purpose of cl. (i) of subsection (2) of S. 13 if notice under S. 13-A to be given in case, not served.
Muhammad Hussain v. Amtul Batul 1970 S C M R 286 rel.
S. 13 (2)--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 3C-Notice under S. 13-A not served-Payment of rent by tenant after death of landlord does not amount to fresh agree ment -Agreement or contract which has effect of contracting out of protection provided would be void being against public policy.
E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 and Sabu Mat v. Kika Ram alias Heman Das 1973 S C M R 185 eel.
..S...-- S. 13 and Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30-Notice under S. 30, mandatory-Fact that tenant under tentative rent order passed by Rent Controller depositing rent will not affect position with regard to notice under S. 13.
Shaikh Muhammad Hussain v. Mubeena Begum and another 1979 C L C 40 rel.
---- S. 13-Default in payment of rent-Tenant raising plea that she was willing to pay rent but after death of landlord and in absence of notice under S. 13 she was unable to know who were landlords and owners- Held Even if provisions of S. 13-A had not been in existence Rent Controller may not exercise his discretion in permitting ejectment in view of plea raised by tenant--Order dismissing ejectment application, upheld.
Obaidur Rahman for Appellant.
Nizamuddln Qureshi for Respondent.
Date of hearing : 31st January, 1983,
In this appeal under section 15 (4) of the Urban Rent Restriction Ordinance, 1959 (herein referred to as the "Ordinance") challenges the decision of the Additional District Judge, Karachi dated 9th December, 1978 in Rent Appeal No. 191/1975; whereby the order of the III Senior Civil Judge and Rent Controller, Karachi dated 14th March, 1975, dismissing the applica tion for ejectment, was maintained. The facts leading to the filing of this appeal are as under:
Building No. 46/S. B. 4, Saddar, Karachi was owned by Mst. Shahzadi, who had rented out the ground floor of the same to Khushi Muhammad at the rental of Rs. 12 .per month. Mst. Shahzadi died in 1962 and the property was inherited by her husband appellant Muhammad Ismail Khan and five children of the marriage, who were minors.
Khushi Muhammad, who was the original tenant in respect of the ground floor of the building died in 1965 and respondent, Khurshid Bibi, his widow continued in possession of the tenement on the ground floor.
On 16th February, 1971, the appellant filed application under section 13 of the Ordinance for ejectment of the respondent on the ground of default. It was his case that even during the lifetime of Khushi Muhammad the rent was never paid regularly but since his death the respondent had persistently refused to pay him rent on various pretexts up to the date of filing of the application for ejectment. Explaining the delay in filing the ejectment application, the appellant stated that he had desisted from taking legal precedents against the respondent on Unitarian considerations, she being a widow, but since she herself had filed a vexatious suit against him contain ing false, male fide and mischievous allegations, being Suit No. 197/71, of which he was served with notice on 13-2-1971, he had considered it proper to file the ejectment application three days thereafter.-
The respondent filed written-statement, in which she took the pleas that even the appellant himself had admitted that Was only joint owner of the property and since she did not know who were the landlords and owners and further she did not know the extent of the proprietary rights of any one of them in the demised premises and many persons had claimed rent but none was ready to give receipt of rent, she could not pay the same. She had also raised the plea that the appellant had refused to give valid receipts for the 'rent and, therefore. had refused to accept the rent tendered by her, making it necessary for her to file -Suit No. 197/71 for declaration and injunction. .
The learned Controller on the pleadings of the parties considered the following issues
(1) Whether the opponent has committed wilful default in the payment of rent
(2) What should the order be
He gave finding with regard to issue No. 1 in the negative and, therefore, dismissed the application for ejectment.
Against the aforesaid decision of the learned Rent Controller dated 14-3-1975, the appellant filed his First Appeal, which was incidentally heard by the Additional District Judge, Karachi, who did not find any justification to interfere with the findings of the Rout Controller and dismissed the appeal by his judgment dated 9th December, 197 , against which the instant Second Appeal has been filed.
In his order, dated 1.4-3-1975, the learned III Senior Civil Judge and Controller, Karachi he'd that notice under section 13-A of the Ordinance, which is mandatory, had not been given and, therefore, the respondent had no intimation regarding the change of ownership and she could not be deemed to have committed wilful default in the payment of rent. He further held that it was immaterial whether the tenant knew about the change of ownership or even had paid rent as even if such action on the part of the tenant is considered to be in nature of contract, the same would be void being against the legal provisions and, therefore, against public policy.
The learned Additional District Judge as First Appellate Authority dismissed the appeal mainly on the ground that no notice had been given to the tenant with regard to the appellant being landlord and further that the claim for arrears was vague as no specific dates had been given to show the period of default. Incidentally the First Appellate Court did not decide with regard to the applicability of Section 13-A of the Ordinance.
I have perused the record and also heard the arguments of the learned counsel for the parties. A perusal of the record of preceding before the III Senior Civil Judge First Class and Rent Controller, Karachi makes it clear that default was alleged since the death of original tenant Khushi Muhammad. Paragraph 4 of the application for ejectment reads as under :-
"That since the death of late Khushi Muhammad the opponent has been persistently refuses to pay rent to the applicant on various pretexts and to this date she has not paid rent to the applicant for about last 5 years."
It is admitted position that Khushi Muhammad died in 1965 though n actual date of his death has been mentioned by any of the parties. The expression used denote the period of default in paragraph 4 quoted above "about last 5 years" which again is vague. Calculating the period of 5 year from 16th February, 1971, when the application was filed, the default would be from 15th February, 1966 but as already stated Khushi Muhammad shown to have died in the year 1965. The learned Additional District Judge, Karachi, therefore, was justified in giving the finding that the allegations the appellant were very ambiguous and there was no evidence on record with regard to the actual period of default. On the other hand, it is contended by Mr. Obaidur Rehman, the learned counsel for the appellant that even if the actual period of default has not been mentioned, there is admitted positron that there was default and further the tenancy and rate of rent is also admitted. The fact that the respondent had filed suit against the appellant would further show that she had admitted that he was at least one of the landlords. The main point involved in this appeal is, therefore, whether notice under section 13-A of the Ordinance was mandatory and in view of the admitted position that no such notice was given, the application for ejectment on the ground o default is at all maintainable.
Section 13-A was inserted in the Ordinance by West Pakistan Ordinance XXI of 1965 which was published in the official Gazette on 8-6-1965. The section reads as under:---
"13-A. Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance pr in any other manner, whatever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post to the tenant of such building or rented land, and other, tenant shall not be deemed to have defaulted in the payment of rent for the purpose of clause (i) of subsection (2) of section 13, if the rent due is paid within thirty days from the date when the intimation should to the normal course have reached him."
It has been argued on behalf of the appellant that Mst. Shahzadi, the original owner died far back in the year 1962 and since that time it is admitted position that Khushi Muhammad continued paying rent to the appel lant up to the time that he died in the year 1965. At the time of the death of Mst. Shahzadi there could be no question of issue of notice under section 13-A of the Ordinance, which was inserted for the first time in the year 1965. The question, therefore, in whether since the application was filed on 16-2-1971. when the aforesaid provision was effective, notice under section 13-A of the Ordinance was necessary before the application could be competently filed on the ground of default in the payment of rent.
In Muhammad Hussain v. Amtul Batul1970 S C M R 286 a decision of the Supreme Court, it was observed as under---
"Section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, has also no application on the facts of the present case. The ejectment application was filed against the petitioner in 1963 while this particular provision of law came into force in 1905. On the language in this provision of law it cannot be applied retrospectively."
The above-quoted observation of the Supreme Court indicates that the date of filing of ejectment application is to be considered for the purpose of ''" determination whether section 13-A aforesaid has application to the case. Taking the aforesaid criterion into consideration there can be no doubt about the fact - that notice under section 13-A had to be issued and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of subsection (2) of section 13 in the absence of the same.
With regard to the argument that payment of rent after the death of Mst. Shahzadi amounts to a fresh agreement by the parties to consider the appellant as the landlord, it is by now settled law that such an agreement or contract which has the effect of contracting out of protection provided by the law would be void being against public policy. In E. A. Evans v. Muhammad Ashraf, P L D 1964 S C 536 a decision of the Supreme Court, it was inter alia observed that tenant under section 30 of the Displaced Persons (Compensation and Rehabili tation) Act (XXVIII of 1958) cannot contract out of protection provided by' the section. The same principle will, therefore, apply to the protraction given to the tenant under section 13-A of the Ordinance. In Sabu Mal v. Kika Ram alias Heman Das 1973 S C M R 185 a decision of the Supreme Court, it was observed as under:
"The language employed in section 13-A of the Ordinance makes it abundantly clear, 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 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 of the notice."
The fact that the respondent under the tentative rent order dated 31-7-1971, passed by the learned Controller, was depositing rent will also not affect the position with regard to notice under section 13-A of the Ordinance. In Shaikh Muhammad Hussain v. Mubeena Begum and another, 1979 C L C 40ss a decision of this Court, it was observed that notice under section 13-A aforesaid was mandatory and there was no room for agreement outside statute between transferee landlord and tenant to pay rent.
It is apparent from the fact that the respondent filed a Civil Suit No. 197/71, in which she had inter cilia stated that she was willing and read to pay rent to the legal owner and landlord and the further fact that in the written-statement filed before the Controller also she had stated that man persons were claiming rent but no one was ready to pay or give receipt and that she was unable to know who were the landlords and owners and what were their shares in the property; even if the provisions of section 13-A of the Ordinance had not been in existence, the Controller may not have exercised his discretion in permitting ejectment on the pleas raised by her in Mrs. Mariam Fernandes v. State Life Insurance Corporation of Pakistan, Karachi P L D 1981 Kar. 591 a decision of this Court, it was inter cilia observed as under-
"It is true that a tenant tat is entitled to the protection of the said Ordinance only as long as he i3 ready and willing to pay the rent. However, when there is a change in the title of the property, a tenant may find it difficult to ascertain as to whom he is to attorn, and as the consequences of failure to pay rent are very drastic the Legislature in its wisdom has imposed this obligation of notice under section 13-A. The object underlying this beneficial provision is clearly to enable the tenant to know whom he is to attorn and the section being a remedial provision should be construed liberally."
In view of the circumstances discussed above, there is no weight in this appeal, which is accordingly dismissed, however, with no order as to costs.
M, Y. H. Appeal dismissed.
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