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First Rent Appeal No.1010 of 1983, decided on 10th September, 1986.
‑‑Ss. 15(2)(iii) & 18‑‑Default in payment of rent‑‑Change of ownership‑‑In absence of notice under S.18 of Ordinance, tenant, held, would not be deemed to have committed default in payment of rent for purpose of clause (iii) of subsection (2) of section 15 of the Ordinance.
‑‑‑S. 18‑‑Transfer of ownership‑‑Notice under S.18 is mandatory‑ Intimation of transfer of ownership to be given in a particular manner mainly in writing by registered post‑‑Object underlying the provision is to enable tenant to know whom he was to attorn and S.18 being a remedial provision should be construed liberally.
‑‑‑Ss. 15 & 18‑‑Ejectment‑‑Default in payment of rent‑‑Tenant had been paying rent to a person authorised to collect same but when transfer of ownership occurred and landlord became owner of property notice under S.18 was not sent to tenant‑‑Held, tenant could not be said to have defaulted in payment of rent in circumstances‑‑Conclusions arrived at by Rent Controller as to want of notice under S.18 by new landlord and his order dismissing ejectment application was consequently maintained. [pp. 1940, 1941 ] B, D & E
S. Mushtaq Hussain for Appellant.
Wazir Ali Wazir for Respondent.
Date of hearing: 10th September, 1986.
This First Rent Appeal is directed against the order dated 23‑11‑1983, passed by the XIV Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application of the appellant was dismissed.
The facts leading to the filing of the appeal are that the respondent occupying flat No.4 on the floor of building known as Gul Manzil, Fakhre Matri Road, Kharadar, Karachi, on a monthly rental of Rs.120. The appellant filed eviction application No.1884/1982 on the ground of default in payment of rent for the months of August, September and October, 1981. The respondent filed written statement averring therein that the respondent had been tendering rent to one Miss Sajeda Ali Muhammad and also denied that the respondents had made any structural changes.
The appellant filed her own affidavit in evidence in support of the eviction application alongwith photostat copy of the Award dated 6‑3‑1982. The appellant also filed affidavit in evidence of Miss Sajeda Ali Muhammad but she did not submit herself for cross examination.
In rebuttal the respondent filed affidavit in evidence of their joint secretary Abbas Badami. They were cross‑examined by their respective counsel.
The learned Rent Controller decided both the points against the appellant vide order dated 23‑11‑1983.
The appellant being aggrieved against the order dated 23‑11‑1983 of the learned Controller has preferred the First Rent Appeal on the grounds disclosed in the Memo of Appeal.
Mr. S. Mushtaq Hussain, Advocate, has contended that the finding of the learned Rent Controller that for want of notice under section 18 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Sind Ordinance) the eviction application was not maintainable is contrary to both facts and law. The learned counsel has submitted that he will not press this appeal on the ground that is, the respondent impaired the value and utility of the premises.
The appellant averred that the respondent had committed default in payment of rent in respect of months of August, September and October, 1981. It is the case of the appellant that she called upon the respondent through legal notice dated 14‑12‑1981 that the respondent were in arrears of rent since August, 1981 and also they made structural alterations. The respondent filed written‑statement and stated therein that they have been tendering rent to one Miss Sajeda Ali Muhammad in her own name. It is further stated therein that the rent is payable in lump sum from time to time and it being consistent practice between the said Miss Sajeda Ali Muhammad and the opponent that the rent would be paid in lump sum from time to time. Rent for the months of July, 1981 to May, 1982 in the amount of Rs.1,320 was duly tendered to the said Sajeda Ali Muhammad in cash on 1‑12‑1981 but she mala fide refused to accept the same. Accordingly on 17th December, 1981 rent for the period of July, 1981 to May, 1982 was tendered by cheque No.010398 on 17th December, 1981. It is denied that there has been any default in the payment of rent support of the eviction application, the appellant filed her .own affidavit and stated therein that after the death of her father in 1961 the said property devolved on her brothers Muhammad Abbas and Abdul Rasool and herself as the legal heirs of the deceased. The appellant further stated that the tenants paid rent to the legal heirs of Haji Ghulam Hussain through Muhammad Abbas or Abdul Rasool till August, 1980. The appellant further stated that "as for September, 1980 the tenants were directed to pay rent to my daughter Miss Sajeda Ali Muhammad in consequence of a family settlement whereby Gul Manzil became my exclusively property, my brothers having surrendered their shares in my favour. This family settlement has been later confirmed in an award given on 6th March, 1982. Sajeda Ali Muhammad has been acting as Rent Collector".
It is advantageous to reproduce the provisions of section 18 of the Sind Rented Premises Ordinance, 1979, which reads as under:‑
"S. 18, Change in ownership.‑‑ Where the ownership of a premises, in possession o the tenant has been transferred by sale, gift, inheritance or by such other mode the new owner shall send an intimation of such transfer in writing by registered post, to the tenant and the tenant shall not be deemed 'to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant."
From the plain reading of the section it is clear, that in the absence of notice, the tenant shall not be deemed to have committed default in payment of rent for the purpose of clause (iii), of subsection (2) of Section 15. Section 2(f) of the said Ordinance defines the word "Landlord". The word "Landlord" means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises.
The respondent pleaded that the notice under section 18 of the said Ordinance was mandatory and since it was not served upon them, they would not be 'deemed to have defaulted in payment of rent and were, therefore, not liable for eviction. The non‑payment was duly explained that it was being realised in lump sum by the Rent Collector Miss Sajeda Ali Muhammad.
There is no dispute that the rent was paid through cheque toy Miss Sajeda Ali Muhammad. There is also no dispute that Miss Sajeda Ali Muhammad was authorised to collect rent from all the tenants of its Gul Manzil including, the respondent. There is also no dispute with regard to want of notice under section 18 of the said Ordinance.
The plain reading of section 18 of Sind Rented Premises Ordinance, 1979, would make it clear that the tenant should not be deemed to have defaulted in the payment of rent if the rent due is paid within thirty days from the date when the intimation of transfer is given by the new landlord/lady to the tenant. This intimation, it may be noticed has to be given in a particular manner mainly in writing by registered post. It is true that a tenant is entitled to the protection of the said Ordinance only as long as he is ready and willing to pay the rent. However, when there is a change in the title :)f the property, a tenant may find it difficult to ascertain as to whom he is to attorn, and as the consequence of failure to pay rent are very drastic the Legislature in its wisdom has imposed this) obligation of notice under section 18. 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. Accordingly, I hold that the appellant had to serve the respondent with a notice under section 18 which is mandatory.
It is an admitted fact that the tenants of Gul Manzil including the respondent paid rent to Muhammad Abbas or Abdul Rasool. It is also an admitted fact that as from September, 1980, the tenants were directed to pay to Miss Sajeda Ali Muhammad daughter of the appellant. It is also an admitted position that the family settlement was affirmed in award given on 6th March, 1982, and the eviction application was presented on 7th April, 1982 without service of notice under section 18 of the said Ordinance.
For the above reasons, the respondents can not be held to have defaulted in payment of rent. Accordingly the conclusions arrived at by the learned Rent Controller as to want of notice under section 18 are correct and do not call for any interference. The appeal was dismissed by short order dated 10‑9‑1986 and the above are the reasons for the same. in the circumstances of the case, the parties will bear their own costs.
M.Y.H./Z‑14/K Appeal dismissed.
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