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First Rent Appeal No.801 of 1984, decided on 13th May, 1986.

---S.13--Sind Rented Premises Ordinance (XVII of 1979), Ss.15 & 21--Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30--Default in payment of rent--Ownership of landlord as transferee of evacuee property not denied and notice under S.30 of Act (XXVIII of 1958, sent by landlord not disputed--Tenant replying notice but remaining silent and neither paying rent to Settlement Authorities nor to landlord after charge of ownership of property although tenant admitted rate of rent--Contention of tenant that since no demand of rent was made in notice, rent was not tendered, repelled--Held, after replying notice tenant was bound to tender rent and he could not get benefit of this technicality--Tenant had committed wilful default as he was responsible for payment of rent every month according to law--Order of Rent Controller ejecting tenant was upheld in circumstances.

---S.16(1)--Default in payment of rent--Order passed under S.16(l) of Ordinance being only tentative in nature would lose force after final order.

A I R 1943 Bom. 83; A I R 1950 F C 143; P L D 1964 S C 536; P L D 1978 S C 20; P L D 1980 Kar. 277 and P L D 1982 Kar. 993 ref.

A. Aziz Khan for Appellants.

Niazi A. Khalique for Respondent.

Date of hearing: 13th May, 1986.

This First Rent Appeal has been filed by the appellant/tenant against the order, dated 31st May, 1984 of Xth Senior Civil Judge & Rent Controller Karachi whereby he allowed the Rent Case No.1779/1971, and directed the appellant to hand over the vacant possession of the premises to the respondent within 4 months.

2. Rent Application was filed by respondent against the appellant under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 on 23-7-1971. In the application respondent stated that he got premises by way of transfer from the Settlement Authorities on 2-12-1968 for which he paid Rs.15,500 and P.T.D. has also been issued. He states that appellants therefore are statutory tenants. According to the rent application appellant did not pay the rent and is in arrears to the extent of Rs.1,900 in spite of the demand. Appellants filed written, objections in which it is stated that respondent never demand that the rent from the appellant and according to the assessment by Excise & Taxation the comes nearly to Rs. 11 per month which appellant offered but respondent refused to accept an: instead he demanded the possession of the premises.

3. Before the Rent Controller Abdul Khalil Attorney of the appellants was examined whereas respondent Abdullah landlord filed affidavit in evidence and was cross examined.

4. The Rent Controller framed following two issues.

(1) Whether appellants committed wilful default in payment of rent.

(2) Whether respondent requires the premises for the purpose of demolition and reconstruction and for personal bona fide use in good faith

5. The Rent Application has been allowed on issue of default in payment of rent only.

6. I have heard Mr. A. Aziz Khan, for the appellants. He contended that notice under section 30 of Displaced Persons Act was not proper one as no demand was made for the payment of rent, therefore appellants have not committed wilful default in payment ,of rent. He submitted that on 24-2-1973, such issue was framed by the Rent Controller but he did not consider this point while deciding the rent case and his judgment is silent on h7 issue which is contrary to the provisions of the law. He has referred to the cases reported in A I R 1943 Bom. 83, and A I R 1950 F C 143. He has also referred to the case reported in P L D 1964 S C 536 and submitted that notice under section 30 of the Displaced Persons Act sent by the respondent is not a valid notice in the eye of law therefore appellants have not committed any default.

7. On the other hand, Mr. A. Khaliq Niazi submitted that Displaced Persons Act 1958 was repealed in the year 1975 therefore, requirement of notice is not be considered at this stage. He has referred to the cases reported in P L D 1978 S C 20, P L D 1980 Kar. 277 and PLD 1982 Kar. 993.

Both the learned counsel in the present appeal have argued only point of default in payment of rent. The ownership of the property by way of transfer from 2-12-1968 from the Settlement Authorities to the respondent has not been denied. The notice, dated 6-6-1970 sent by the respondent is not under dispute. The reply of the notice was sent by the appellant's on 6th July, 1970. The contents are as follows:--

Your notices, dated 6-6-1970 addressed to my clients Mst. Khairunnisa, widow of late Abdul Satter and others have been placed in my hands with the instructions to reply you as under:--

(1) That under law your client cannot terminate the right of my clients to occupy the premises as stated by you in para. 5 of your notice.

(2) That my clients being statutory tenants are protected under section 30 of Displaced Persons (Compensation Rehabilitation Act) so long they pay rent of the premises.

(3) That my clients are ready and willing to pay rent at the rate of Rs.10 per month for the premises from the date of P.T.D., which amount in due course will be sent to your client by M.O. and kindly advise your client to accept the same.

If your client chooses to take any wrong action 'against my client the same shall be defended as against your client's risk as to the cost and consequence."

8. It is clear from the record that after the reply of Notice appellants did not tender rent to the respondent nor they deposited the rent in Court with any Misc. application. They remained silent till rent case was filed on 23-7-1977. The appellants have also failed to substantiate if they tendered the rent to the Settlement Department. Therefore the default has been proved. Now question arises if tenant can get benefit because no demand was made therefore notice is riot proper. This argument could have some force provided appellants had not admitted the rate of rent in their written statement. Mr. A. Aziz Khan contended that appellants used to pay Rs.9 to the Settlement Authorities. At least on knowing that there is a change of ownership they could have attempted to tender the rent at the same rate to the respondent. Not only this but it has been admitted by the appellants in reply of notice, dated 6th July, 1970 as stated above that appellants were ready and willing to pay the rent at the rate of Rs.10 per month. Therefore it cannot be said that demand was necessary when appellants knew that they are statutory tenants of the respondent. It was for them to tender the rent in one or other way at the rate of Rs.10 at least. They failed to do so therefore, appellants cannot get benefit of this technicality. The Rent Controller has rightly-come to the conclusion that appellants have committed wilful default in payment of rent. Mr. A. Aziz Khan's next contention is that case be remanded and learned Rent Controller should decide the first issue regarding validity of notice. This is a legal issue for which no evidence is required to be adduced by the parties. Not only this but the relationship of landlord and tenant is not denied and there was no issue about the rate of rent. This will only delay the matter which is continuing since 1971 and no fruitful purpose will be served in remanding the case back. Mostly all the cases referred by the parties relate to the dispute about the notice. The position of the notice is admitted therefore the law referred by the parties is irrelevant.

Mr. Aziz Khan has taken plea that tentative rent order was passed under section 16(1) of the Sind Rented Premises Ordinance which was complied with therefore no default has been committed. I do not agree with him. The order under section 16(1) is of tentative nature and after final order it has no force.

It is the. responsibility of the tenant to tender rent every month according to law but in this case no rent has been tendered therefore wilful default has been committed and Rent Controller hash rightly allowed the application. For the reasons stated above the' appeal is dismissed. Mr. Aziz Khan requested for time to vacate the premises. Looking, to the circumstances of case, I allow 6 (six) months to appellants to vacate the premises.

M.Y.H./K-14/K Appeal dismissed

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