Find a Lawyer

First Rent Appeal No.287 of 1986, decided on 26th August, 1987.

---Ss.15,18 & 21--Change of ownership--Notice--Filing of application for ejectment by new landlord, held, was by itself a notice of transfer of property in his favour--Mere technical defect in respect of filing of an application, would-not :eke away factum of notice about transfer of property having been made in favour of such landlord.

---Ss.15 & 21--Default in payment of rent--Tenant having notice of transfer of premises in favour of landlords but failing to make proper tender of rent to landlord for sixteen months--Cheque issued by him in favour of six landlords was very likely to remain uncashed as all six landlords were not to have a joint account--Order of ejectment of tenant on account of default in payment of rent, maintained.

Zafar Alam for Appellant.

S.Sarwar Ali for Respondents.

Date of hearing: 26th August, 1987.

The appellant has felt aggrieved against the order of ejectment passed by the VIII Senior Civil Judge and Rent Controller, South Karachi dated 23-4-1986 on the ground of default in payment of rent. The grounds of nuisance, sub-letting, change of u3e, personal requirement and damage to property were negated by the same judgment.

Mr.Syed Sarwar Ali, for the respondents wanted to argue in support of the ground of personal requirement but I do not find any cross-objections to the appeal having been filed by him within the allowed time. He wanted me to treat the counter-affidavit of Haider Jameel dated 9-8-1986 as counter-objections to the appeal. The same cannot be done as the said counter-affidavit was in reply to the application under section 21(2) of the Sind Rented Premises Ordinance, 1979. In any case no notice of this counter-affidavit as such a counter-objection was sought by the respondents to have been issued to the appellant and, therefore, this cannot be treated as counter-objections.

The relevant facts in respect of issue of default are that the premises in question had been transferred by the Settlement Department to the respondents in 1973 and admittedly the appellant Azizur Rehman alias Ajjoo was a tenant in respect of the said premises. A notice dated 16-:0-1982 in respect of the transfer was sent by the respondents to appellant but it was undelivered. On 27-3-1983 the respondents through Haider Jamil filed an application for ejectment against the appellant numbered as 1357/1983. The appellant filed a written statement to the said ejectment application on 24-4-1983 and had stated that he was prepared to pay the rent to the person who was the transferee of the premises. In the said Application No.1357/1983 the respondents had stated that they were the transferee of the property and the documents alleged to have been filed with the said application were; Notice dated 16-12-1982, photostat of copy of Extract of E.P.R. of the D.S.C. (Records). Karachi, photostat of Extract from Property Register and photostat of Record of Permanent Transfers. In the written statement filed by the appellant to the said application there is no 'objection made that the documents which are alleged to be filed alongwith the application have not been filed. In any case in Para.1 of the said application the respondents had clearly seated that they had purchased the property from Settlement Department in auction from 3-5-1961 and the same had been transferred to them on 10-7-1973.

It is an admitted position that no rent was paid by the-appellant to the respondents in April, 1983 or thereafter upto November, 1983.

The said Application No.1357/1983 was withdrawn by the 'respondents on the ground of a defect in the Power of Attorney. Thereafter, on 10-10-1983 fresh notice of transfer was served upon the appellant by respondents through counsel and demand of rent was made and other allegations were also made which are not relevant. On 29-11--1983 the reply on behalf of the appellant was sent by his counsel to the counsel of the respondents by Registered A.D. Post. Alongwith that reply a cheque of Rs.273 drawn in favour of all the six respondents jointly was sent. There is a dispute in respect of receipt of the said letter sent by the counsel for the appellant. The Acknowledgement Due of the Post Office shows that it was received by the mother of Sarwar Ali. The appellant did not examine any postel employee in respect of the service of the said notice. The amount of rent is stated to be Rs.7 per month for the house in possession of the appellant, and, therefore, Rs.273 would cover the rent for a period of 39 months upto December, 1983. Another fact which is established on record is that this cheque was evidently not encashed and there has been no effort on the part of the appellant to enquire from the bank as to what happened to his cheque. However, there is another factor which is important according to Mr. Zaffar Alam Khan that there was no reply sent to the counsel for the appellant in respect of notice allegedly sent by the appellant's counsel to the respondents' counsel alongwith the said cheque. But I have already observed above that the receipt of the said letter is in dispute and has been denied by the respondents. Another important position is that ejectment Application No.388/84 was filed by the respondents on 31-1-1984 alleging the non-payment of rent and notice of the Sindh (Amendment of Laws) Act, 1974 or in accordance with the procedure laid down in the said Act.

Explanation--Amenity plots mean the plots reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques, graveyards or for such other public purposes.

2. Any person aggrieved by this order may, within fifteen days of the promulgation thereof, prefer an appeal to Government and orders of Government on such appeal shall be final.

3. Government may, in any individual case of hardship, relax the provisions of para. 2 on such terms and conditions as may be determined. "

Be that as it may, the important question which remains to be decided to whether during all these proceedings the allotment in favour of the petitioner was ever cancelled and, if not, while the same was existing could it be allotted to another Society It is not the case of the respondent No.4 that the allotment of the disputed plot in favour of the petitioner was cancelled and then it was allotted to respondent No.2 and in turn to respondent No.4. The said respondent has produced a copy of allotment order from respondent No.2 but no possession letter was produced to indicate as to when the said plot was handed over in possession of two respondents. The counter-affidavit filed by the respondent No.6 in the Petition bearing No.1640 of 1980 has clearly supported the contentions of the petitioner and has nowhere claimed that the earlier allotment was cancelled.

In view of above discussion, it can safely be said that the earlier allotment was never cancelled. The situation which emerges is that on the date when the said plot was allegedly allotted to respondent No.2 it already stood allotted in the name of the petitioner.

We have considered this position and in our opinion the second allotment could not be made during the subsistence of the first allotment as such we hold that the said allotment in favour of the respondent No.2 was illegal and as a natural corollary in favour of respondent No.4 too. Reliance can be placed on the case of Muhammad Ishaq and another v. Dr. Saiduddin Swaleh and another (PLD 1960 (W.P.) Kar. 48), wherein it was held that Moreover, an allotte, cannot be ejected except when he fails to observe the terms and conditions of the allotment made to him or he is found in the opinion of the Rehabilitation Authority to be an unsuitable person to hold the property allotted to him. If during the subsistence of one allotment order another allotment order is issued then it is merely provisional and must remain floating in the air to settle down in the place of former allottees when the former allottee is ejected. Its concurrent existence would not invalidate the former allotment order and of this application was served upon the appellant on 4-3-1984 by Registered Post A.D. and the written statement was filed by Azizur Rehman alias Ajjoo on 5-4-1984. The admitted position again is that the appellant had started depositing rent in court according to the appellant himself on 20-10-1984 as found from the statement of deposite filed by appellant dated 2C-8-1986 in this appeal.

The filing of the ejectment case No.1357/83 has been admitted by the appellant and he has also admitted that he had filed his written statement to that application and had shown his willingness to pay the rent. But the fact is that in spite of that written, statement filed on 24-4-1983 there was no rent paid by the appellant either to the respondents nor even deposited in any Misc. Rent Case in favour of the respondents and nor sent money order, to the .respondents between 24-4-1983 and 29-11-1983. It is an established position in law that the filing of an, ejectment case is by itself a notice of transfer of the property in favour of the landlord. In 1986 S C M R 751 it was held that if a notice under section 13(a) of West Pakistan A Urban Rent Restriction Ordinance, 1959 was not served that would not amount to non-existence of relationship of landlord and tenant and it was further observed that 1he rent not having been paid even after institution of application for eviction, which was also treated as notice under section 13(a), the respondents were liable to eviction.

Mr. Zafar Alam Khan had submitted that the first ejectment application having been withdrawn on the basis of a defective Power of Attorney, it was not a valid application for ejectment and hence it should not be treated as a notice. I do not find any justification for this submission because a mere technical defect in respect of filing of an application would not take away effect of the factum of notice B about the transfer of property having been made in favour of the respondents. After the said application and particularly after the written statement in that application it was the duty of the appellant to safeguard his tenancy against the forfeiture by tendering the rent to the respondents or by depositing the same in Court or send it by money order to the respondents. Then again I would observe that even the cheque of Rs.273 which was sent can hardly be, called a valid, tender of the rent in the circumstances of this case as a cheque drawn and crossed in the name of payee only in favour of six respondents was very likely to remain un cashed because six respondents were not to have a joint account. Then again the receipt of the said notice dated, 10-10-1983 by the respondents or their counsel was a matter of dispute as the same has not been positively proved by examining the Post Office employee who had allegedly delivered the said notice. The notice sent to a lawyer Mr. Sarwar Ali could hardly be delivered to his mother. In these circumstances, the said notice was not proved to have been delivered. Then again the appellant C made no effort to enquire from the bank of his counsel as to whether the said cheque had been encashed or not and, therefore, the appellant was negligent in seeing to it whether the amount which he got sent through his lawyer had been sent or not. I do not want to comment upon the question as to whether a lawyer could send a cheque o: his own on behalf of his client to absolve burden of the payment of rent in time. The first real attempt of a proper tender of rent is found to be made on 20-10-1984 in accordance with the provisions of Sind Rented Premises Ordinance, 1979 when the amount of Rs.357 was allegedly deposited by the tenant in Misc. Rent Case No.3433/1984. This tender of rent on 20-10-1984 can hardly be called a proper tender because admittedly the appellant had notice of the transfer of the premises in favour of the respondents in April, 1983, when they had filed their written statement in ejectment application No.1357/83 before XIV Rent Controller, Karachi. Therefore, deposit was made as late as 16 months.

In these circumstances, the default has been clearly established and, therefore, ejectment was rightly granted. The appeal is, ID therefore, dismissed. However, at the request of Mr. Zafar Alam Khan and with graceful consent by Mr. Syed Sarwar Ali, for the respondents, I could defer the ejectment for one year subject to the regular deposit of rent in Court by the appellant. Writ of possession without notice to the applicant will be issued after one year from today but it can be issued earlier in case of default in deposit of rent.

M.Y.H./A-192/K Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.