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First Rent Appeal No. 597 of 1983, decided on 5th October, 1986.

‑‑‑Ss. 18 & 21(1)‑‑Intimation of transfer of ownership‑‑Duty of transferee‑‑Intimation by transferee/ landlord to tenant regarding transfer of ownership of premises, though essential, non‑intimation, held, would not bind transferee to satisfy tenant about his title towards premises by producing any document of authority‑‑Objection of tenant that without first establishing legal title to premises by producing before tenant document of authority, transferee could not act as landlord and claim rent from tenant; was ruled out by High Court in appellate jurisdiction.

P L D 1976 Kar. 169ref.

‑‑‑S. 18‑‑Intimation of transfer of ownership‑‑Service of notice‑‑Burden to prove‑‑Question whether notice under S. 18 was received by tenant or not, being question of fact, tenant denying receipt of such notice, held, must take that plea earlier in written statement‑‑Burden to prove service of notice upon tenant would be shifted upon landlord‑‑Where tenant failed to take such plea earlier in written statement, landlord, would not be required to prove that notice was addressed by him to tenant.

‑‑‑S 18‑‑Intimation of transfer of ownership‑‑Transferee/landlord alleging that he sent registered letter to tenants calling upon them to pay him rent of premises, even if failed to produce letter with postal A. D. receipt, oral evidence of landlord on that point, held, would be sufficient to satisfy requirements of S. 18 in absence of any specific plea of denial raised by tenants earlier in that regard.

‑‑‑S. 15(2)(ii)‑‑Default in payment of rent‑‑Payment of rent made by tenants, long after commission of default, held, neither would absolve tenants from their liability to be evicted from premises nor any estoppel would be created by acceptance of such rent by landlord.

1983 C L C 3285 ref.

‑‑‑S. 15(2)(v.i)‑‑Eviction of tenant on ground of construction‑‑Failure of landlord to prove necessary sanction of competent authority for reconstruction or erection of building, held, would disentitle landlord to seek eviction of tenant from that building on ground of re‑construction.

‑‑‑S. 15(2)(vi)‑‑Personal requirement‑‑Proof‑‑Eviction of tenant on ground of personal requirement‑‑Landlord, held, must establish his good faith by clear evidence in regard to his bona fide requirement‑‑Mere desire of landlord to occupy his own building would not be sufficient.

M.S. Khanzada for Appellant.

Ali Murtaza Hussain for Respondents.

Date of hearing: 31st August, 1986.

This appeal calls in question the order passed by the XIIth Senior Civil Judge and Rent Controller, Karachi dated 4‑6‑1983, dismissing the appellant's eviction application filed against the respondents.

The facts of the case, briefly stated, are that the respondents were tenants in respect of a room in the premises bearing Survey No.K/17‑39‑S‑40, Gandhi Nagar, Karachi at a monthly rent of Rs.50. The said premises were rented out to the respondents by the appellant's father for the purpose of post office. After death of the appellant's father the rent was being paid by the respondents to the appellant's mother Mst. Hameeda and after her death the respondents failed to pay rent to the appellant or other legal heirs despite several requests both verbal as well as in writing, since June, 1978. According to the appellant the premises were also required by him as well as other heirs of their deceased father in good faith for re‑construction as well as their personal use and occupation. Under such circumstances, the eviction application was filed against the respondents.

The case of the respondents in the written statement was that after the death of Mst. Hameeda Khatoon none from the appellants side came forward either to demand the arrears of rent amounting to Rs.1,800 or to show to the respondents any legal documents in respect of the premises to establish their title. The fact that the premises were required by the appellant for their personal use or for the purpose of re‑construction was also denied by the respondents.

The learned Rent Controller after framing the issues and recording evidence in the case came to the conclusion that there was no notice nerved by the appellant under section 18 of the Sind Rented Premises ordinance, 1979, intimating the respondents about the death of their other and transfer of the premises in the name of the legal heirs, and rent had already been received by the appellant, therefore, no default was committed by the respondents. It is noteworthy that rent or the premises had been accepted by the appellant after filing of the jectment application by him.

I have heard Mr. S.M. Khanzada on behalf of the appellant and Ir. Ali Murtza Hussain on behalf of the respondents.

The first contention of Mr. S.M. Khanzada is that the finding f the learned Rent Controller that no notice as required by section 18 f the Sind Rented Premises Ordinance, 1979 was served by the appellant on the respondents is erroneous, firstly as no such plea had been taken by the respondents in their written statement and secondly because the findings are contrary to the evidence on record. A perusal of the written statement shows that the only legal objection taken by the respondents was that the appellant had failed to produce any document' of authority before the respondents to establish the legal representatives' title to the property and without that the latter could not act as landlords and claim rent from the respondents. This objection had no connection with section 18 of the said Ordinance of 1979 and could hardly be taken by the respondents as the transferees were not bound to satisfy the respondents in respect of their title. (See P L D 1976 Kar. 169 (173). No doubt, section 18 of the said Ordinance requires the transferee to send intimation of the transfer of ownership in writing by registered post to the tenant and in absence of such notice the tenant would not be deemed to be in default of payment of rent for the purposes of section 15(2)(ii) but the question whether such notice has been received or not is a question of fact and the tenant who denies receipt of such notice must take such plea in the written statement. When such plea is taken then the burden to prove that such notice, had been sent to the tenant shifts upon the landlord. Since no such plea was taken by the respondents the appellant was not required to prove that such notice had been addressed by him and the other co‑heirs to the respondents. Nonetheless the appellant in his evidence has stated that on 24‑7‑1978 the transferees sent a letter to the respondents calling upon them to pay rent to the appellant. Although the appellant failed to produce such letter with postal A.D. receipt but in absence of any specific plea raised by the respondents in this regard, the appellant's oral evidence on the point, in my opinion, was sufficient to satisfy the requirements of section 18 in any case.

Another point which is noteworthy is, that the respondents could claim notice under section 18 after the death of the appellant's father, the original landlord of the rented premises. However, no such notice was claimed by them and they continued to pay rent to the widow who had inherited the property alongwith the appellant and other co‑heirs of the deceased landlord. However, whatever be the case, the learned Controller has erroneously shifted the burden to prove notice under section 18 on the appellant when no such plea had been taken by the respondents in their written statement.

Another ground which weighed with the learned Controller for dismissal of the ejectment application was that the entire amount of rent due had already been paid by the respondents to the appellant. According to the appellant, the rent was paid by the respondents after filing of the ejectment application, but according to the respondents' witness Manzoorul Hassan, he had paid arrears of rent due from June, 1978, two months prior to the filing of such application. It may be pointed out that ejectment application against the respondent was filed by the appellant in December 1981. Whichever version is correct but there is no doubt that rent was paid by the respondents much after default in payment had already been committed by them. Any payment made thereafter, therefore, cannot absolve the respondents from their liability to be evicted from the premises and no estoppel was created by acceptance of rent by the appellant (See 1983 C L C 3285).

The upshot of this discussion is that default in payment of rent by the respondents was established and the findings of the learned Controller on the point are not tenable and consequently they are reversed.

The next ground urged on behalf of the appellant is that the learned Controller was also in error while refusing to order eviction of the respondents on the ground of re‑construction of the premises and personal requirement of the appellant and his family. I do not find much force in Mr. Khanzada's contentions, firstly because the appellant has failed to establish that he had obtained any sanction for re‑construction or erection of the building from the competent authority as required by clause (vi) of section 15(2) of the above‑said Ordinance. Absence of proof in this regard cannot entitle the landlord to seek eviction of the tenant on the ground of re‑construction. It has not even been alleged by the appellant that such sanction had been obtained by the appellant. The issue was, therefore, rightly decided against the appellant by the learned Controller.

The next issue in regard to personal requirement has also not been established by the appellant since no sufficient evidence has been produced in support of the plea. Needless to say that requirement of the landlord must be bona fide. Mere desire of the landlord to occupy his own building is not sufficient. He must establish his good faith by clear evidence in regard to his requirement. The appellant has even failed to establish that the accommodation in the premises occupied by himself and his family was insufficient or that what was the actual requirement of the appellant and his family. Under such circumstances, this issue also appears to have been rightly decided against the appellant.

However, since I have found the respondents guilty of default in payment of rent, I allow this appeal on that ground alone and reverse the learned Controller's findings on the point and order the respondents' eviction from the premises in question. Since the respondents are running a post office in the rented premises, I allow six months time to the respondents to vacate the premises.

H.B.T. Appeal allowed.

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