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First Rent Appeal No. 110 of 1984, decided on 23rd October, 1986.

‑‑‑S. 13‑A‑‑Sind Rented Premises Ordinance (XVII of 1979) S. 15‑ Ejectment‑‑Default in payment of rent‑‑Change of ownership‑‑Landlord failing to prove that tenant who defaulted in payment of rent was sent any notice about change of ownership‑‑Order of Rent Controller dismissing ejectment application of landlord maintained.

A . F . M . Mokarim for Appellant

. Farman A. Hashmi for Respondent.

Date of hearing: 15th October, 1986.

This First Rent Appeal is directed against the order, dated 12‑11‑1983 passed by the Xth Senior Civil Judge/Rent Controller, Karachi, whereby he dismissed the eviction application No. 87 of 1975 filed by the respondent.

The facts which give rise to this appeal are that the appellant is the owner and landlady of the building kndwn as Zulekha Mansion situated on Plot No. 17, Street No. R. B. 12, Rambagh Quarters, Karachi and the respondent is tenant in respect of Flat No. 10‑A, in the said building on a monthly rent of Rs.12. The appellant filed the above eviction application against the respondent on the ground that "the opponent is a habitual defaulter in payment of rent and is in arrears of rent since 1st September, 1984 and has not paid the same in spite of repeated demands and has made himself liable to eviction under the provisions of the repealed Ordinance. The respondent resisted the eviction application.

The application filed affidavit‑in‑evidence of her son Haji Noor Muhammad Lakhany in support of the eviction application and stated therein that the building was purchased by the appellant from Mst. Sughra Rabiba under the deed of conveyance which was duly registered on 3‑3‑1964. This witness further stated that Mst. Sughra Rabiba informed the respondent of the change of ownership by a letter, dated 4‑3‑1964. This letter was produced in evidence as Exh. 2/3. This witness stated that the appellant sent a letter, dated 4‑9‑1964 through her advocate which was received by the respondent. This witness also stated in his affidavit‑in‑evidence that the respondent had paid the rent to the appellant from March, 1959 to August, 1964. This witness produced photostat copies of the counterfoils of receipts as Annexures D, E, F, G and H to the affidavit‑in‑evidence. The attorney admitted in his cross‑examination that the appellant did not intimate the respondent regarding the purchase of the property from Mst. Sughra Rabiba. It is pertinent to note that the appellant produced only carbon copy of the letter without any acknowledgment receipt or the postal receipt showing that it was despatched by her.

The attorney also admitted in his cross‑examination that the counterfoils of the receipts do not bear the signatures of the respondent. The attorney to a suggestion in cross‑examination stated that the letter, dated 4‑9‑1964 was refused by the respondent. I have perused the endorsement and it shows that in spite of intimation he did not come to receive the letter.

As against the above evidence the respondent filed his own affidavit‑in‑evidence in rebuttal and specifically stated that no notice under section 13‑A of the repealed Ordinance was given to him. The respondent also categorically stated in this deposition that Mst. Sughra Rabiba did not intimate him about the change of ownership. The five counterfoils of the rent receipts (Exhs. D to I) do not bear the signatures of the respondent. It is pertinent to note that the respondent was not even confronted with these counterfoils.

After going through the deposition of the parties and also the) documents produced by the appellant, I am of the view that the appellant has not proved that the respondent was intimated about the purchase of the building. The appellant also has not led any reliable evidence to show that the respondent paid her rent for the months of March 1964 to August 1964 and the appellant has also not led any reliable evidence about the intimation about the purchase of the property by her from Mst. Sughra Rabiba.

The case as set out by the appellant is that the respondent wasp not only duly intimated about change of ownership but he paid rent for the months of May 1964 to August 1964. It is pertinent to note that the case as set out by the appellant is that the respondent had committed default in payment of rent since September 1964 and the eviction application was presented on 6‑1‑1975, that is, after lapse of about eleven years. It is unthinkable that the respondent had paid her rent upto August 1964. Hence the facts and circumstances of the present case, I hold that the appellant did not serve notice under section 13‑A of the repealed Ordinance and the finding of the learned Controller is in consonance with law.

In conclusion I find no substance in this appeal and accordingly) dismiss it with no order as to costs.

The above are the reasons for my short order, dated 15‑10‑1986 dismissing the appeal on the conclusion of the arguments.

M.Y.H./5147/K Appeal dismissed.

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