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First Rent Appeal No. 1041 of 1982, decided on 3rd June, 1987.

---Ss.15 &18--Ejectment proceedings--Change in ownership--Where information. 'regarding transfer of ownership of rented premises itself was conveyed to tenant by original owner and rent tendered by tenant to new owner also was received .by new owner, plea of no intimation of change in ownership of rented premises raised by tenant, held, would 'not hold good as tenant admittedly, had atoned to new ownership.

Syed Azkar Imam Rizvi v. Mst. Salma Khatoon 1985 S C M R 24; Major (Retd.) Muhammad Yousuf v. Mairajuddin and others 1986 S C M R 751; Israr Ahmad v. Abdul Aziz 1987 C L C 336. P L D 1964 SC 536; PLD 1979 Quetta 157; PLD 1981 Kar.273; PLD 1981 Kar.591; PLD 1982 SC 212; 1982 SCMR 365 and PLD 1964 SC 546 ref.

---Ss.10 & 15 (2)(ii)--Default in payment of rent--Proof--Tendering rent by cheque-- Validity of-- Although mode of tendering rent through cheque was not envisaged under S.10, yet where rent previously tendered by tenant through cheque was received and accepted by landlord, tender of rent for subsequent months in same manner, held, would be deemed to be valid tender.

Sarfraz Khan v. Muhammad Abdul Rauf P L D 1969 Kar. 176 and M/s. Peoples Steel Mills Ltd. v. Hafizuddin and others P L D 1981 Kar. 739 ref.

Khurshid Anwar for Appellant.

Shamsul Arfeen for Respondent.

Dates of hearing: 18th, 19th, 21st, 24th and 25th May, 1987.

This appeal under section 21 of the "Rent Restriction Ordinance, 1979 (i.e. Sind Rented Premises Ordinance, 1979) is directed against order of ejectment dated 14-10-1982 passed by learned XVIth Rent Controller, Karachi, in Rent Case No.4591/1981. The facts in the background are briefly stated below:

The appellants M/s. Sind Beverage Limited are doing their business in a rented shop No.2, ground floor, on Plot No.S.B. 2/7, Peter Castle, on Daud Pota Road, Karachi Sadar. The shop was let out to them by the original owner Mr. John Jospeh Francis Periera, at the monthly rent of Rs.300. The building, where shop No.2 is situated, was transferred to the respondent Haji Ghulam Muhammad. The information of the transfer of the building was conveyed to the appellants by the original owner named above when rent of the shop for the month of February, 1981 was offered to him. The appellant tendered rent to the respondent for the months of February and March by way of Cheques No.921545 dated 21-3-1981 and 9211550 dated. 31-3-1981. The dispute between the parties is over the payment of rent for the period from April, 1981. The Rent Case No.4591,/61 was filed on 7-10-1981, for ejectment of the appellant from the rented premises on the ground of default in payment of rent from. April, 1981 onwards. The appellant denied the allegations of default in payment of rent contending that rent was paid upto date by means of cheques as was the practice with the previous landlord. The parties adduced evidence in the form of affidavits. The respondent Haji Ghulam Muhammad filed his own affidavit and that of his Rent Collector by name Muhammad Hussain. On behalf of the appellants, their General Manager and Attorney by name Abdul Hameed, and incharge of the rented premises, namely Abdul Rauf, filed affidavits. The learned Controller held by the impugned order dated 14-10-1982 that the appellant had made default in payment of rent from April, 1981 and ordered that vacant possession of the rented shop should be delivered to the respondent /landlord within a month.

The learned counsel for the parties have made submissions on all aspects of the case, involving intimation of the change in ownership, tender of rent by way of cheques, encashment of some of cheques, issuance of rent receipts, and exchange of notices etc, and commented upon the evidence adduced by the parties and cited several cases. The crucial question for determination is the payment of rent for the period from April to September 1981.

The plea of no intimation of change in ownership does not hold ground as the appellants had admittedly atoned to the new ownership of the respondent, on receiving such information through previous owner, and they, actually tendered him the rent of the shop. This view is based on the principle enunciated by the Supreme Court in the cases Syed Azkar Imam Rizvi v. Mst. Salma Khatoon (1985 S C M R 24), and Major (Retd) Muhammad Yousuf v. Mairajuddin and others (1986 S C M R 751)', that definite information to the tenant of change in ownership meets the requirement of the notice. In a case Israr Ahmed v. Abdul Aziz (.1987 C L C 336) also: the same view was adopted. Of course, in those cases service of notice of change in ownership was held covered by filing of ejectment cases but in his case the appellants had actually atoned to the new ownership and requirement of service of notice stood obviated. All the three cases referred to above were cited by the learned counsel for the appellant. The other cases cited by him on the proposition of service of notice of change in ownership are P L D 1964 S C 536; P L D 1979 Quetta 157; P L D 1981 Karachi 273 and 591; P L D 1982 S C 212 and 1982 S C M R 365. In all those cases, except the first case viz. P L D 1964 S C 546, the question of non-service of notice of change in ownership was involved and there was no voluntary atonement by the tenant as done in this case and it was held that service of notice was necessary. In the case reported in P L D 1964 S.C.536 (E.A. Evans v. Muhammad Ashraf), it was held that statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had to be served as required as it did not only convey the intimation of transfer but date of its service served as terminus quo for determining the period of protection. It was in that context that Service of notice was found necessary. The ground of non-service of notice of change in ownership therefore does not advance the appellant's case.

As regards alleged default in payment of rent, rent for the months of February and March, 1981 was admittedly tendered by the appellants by cheques and it was accepted by the respondent. Of course, he denied the rent receipts alleged to have issued by him therefore, contending that he had issued receipts of those two cheques from a printed receipt book under letterhead in his name. The counterfoils thereof have been filed by him in evidence. The evidence to the tender of rent for the subsequent period by way of cheques is based on the counterfoils of the cheques issued from different cheque books in the normal course of business of the appellants filed in evidence. Photostat copies of receipts claimed to have been issued by the respondent in respect of these cheques have been put in evidence with the explanation that the original receipts were returned to the respondent for making certain entries therein for the purpose of audit of the accounts of the appellants and they were not returned by him. The respondent has denied to have received the cheques and issued the receipts. The effort on the part of the appellants to get signature of the respondent on those receipts compared was brushed aside by the learned Controller. The oral evidence furnished by the parties is not unassailable. Of course the burden of proof of payment of rent rested on the appellant/ tenant. The episode of issuance of t rent receipts is flickering. The rent receipts relied upon by the appellant do not stand proved as comparison of signatures on those receipts was not allowed by the learned Controller on flimsy ground. The contention of the respondent is that he used to issue to issue rent receipts on the printed book bearing his letterhead and he had issued rent receipt for the payment of rent by the appellant for the months of February and March, 1981 vide serial Nos.2 and 4. Except those who counterfoils dated 23-3-1981 and 4-4-1981 the other counterfoils upto serial No.13 show payment of rent by one Abdul Rauf upto December 1981, and other leaves are unused. It appears from the counterfoils, that they were prepared for some set purpose and were not issued in the normal course of events. However, one fact is undisputed that rent for the months of February and March, 1981 was tendered by the appellant by way of cheques and the cheques were accepted and ultimately encashed by the respondent. The appellants have filed counterfoils of different cheque books inclusive of cheques purporting to have been issued in the name of the respondent, The counterfoils bear out that the cheques were issued in the normal course of business. No doubt, the cheques shown to have been issued in the name of the respondent for the period from April, 1981 onwards do not seem to have been encashed and only two cheques for the months of February and March, 1981 admittedly issued on 21-3-1981 and 31-3-1981 respectively were encashed on 18-8-1981. It is a mystery that the cheques received by the respondent in March and April 1981 were encashed in the middle of August 1981 and there is no plausible explanation why those cheques were kept uncashed. It is pertinent to find that a notice is said to have been issued to the appellants on the same date viz. 18-8-1981 that they had made default in payment of rent from April, 1981. These facts indicate that encashment of the two cheques representing rent for February and March, 1981 in the month of August was a device of binding the appellants of atonement to the Changed ownership in favour of the respondent and encashment of other cheques was withheld as to make them defaulters in payment of rent for the subsequent period as to seek, their ejectment' Payment of rent by cheques was held valid in the cases Sarfraz Khan v. Muhammad Abdul Rauf (P L D 1969 Karachi 176) and M/s. Peoples Steel Mills Ltd. v. Hafizuddin and others (P L D 1981 Karachi 739) relied upon by the learned counsel for the appellant. Of course, both the authorities related to the tender of rent under the West Pakistan (Sind) Urban Rent Restrictions Ordinance, 1979 (since repealed) while Rent case between the parties herein was filed under the provisions of the Sind Rented Premises Ordinance, 1979. The mode of payment of rent is laid down in section 10 of the Ordinance and it provides that the rent shall as far as may be, be paid to the landlord and in case the landlord refuses or avoids to accept the rent, it may be sent to him by postal money order by deposit with the Controller, within whose jurisdiction the premises is situate. Tender of rent by cheque is not envisaged under section 10 of the Ordinance. However, the criteria of payment of rent is that the landlord should receive the rent within the prescribed period, in any form. In the instant case, it is admitted fact that rent tendered to the respondent by the appellant for the months of February and March, 1981 by cheques id was received and accepted by the respondent and therefore tender of rent for subsequent months in the same manner i.e. by the cheque would be deemed to be valid tender of rent. It would not have constituted valid tender of rent if the respondent had not accepted the first two cheques and encashed them. It would be worthwhile to mention here that it has been stated in evidence adduced on behalf of the appellant that rent was deposited with the Controller soon after the respondent had made denial in his letter of receipt of rent for the subsequent months and that was done before filing of the Rent Case. This fact has not been controverted by the respondent. The facts discussed above do indicate that appellant had tendered rent by way of cheques and the first two cheques were encashed by the respondent in order to create evidence of confirmation of relationship of landlord and tenant but encashment of other cheques was withheld in order to seek ejectment of the appellant. The appraisement of the evidence by the learned Controller to reach the conclusion that rent for the months of April, 1981 onwards was not tendered was in wrong direction.

For the reasons recorded above, the appeal is allowed, the impugned order of learned Controller dated 14-10-1982 is set aside. The parties shall bear their costs in the Rent Case as well as in this appeal.

H.B.T./S-114/K Appeal allowed.

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