Judgment Sheet
IN THE HIGH COURT OF SINDH KARACHI
Constitutional Petitions No. S – 223 of 2011
& Constitutional Petitions No. S – 224 of 2011
Petitioner : Nasreen Kausar through
Syed Amjad Hussain Advocate.
Respondent No.1 : Mst. Hoor Afzal through
Mr. Noor Ahmed Malik Mahmood Advocate.
Respondent No.2 : VIth Additional District Judge Karachi South.
Respondent No.3 : VIth Senior Civil Judge Karachi South.
Dates of hearing : 27.08.2018, 05.09.2018, 26.09.2018, 24.12.2018,
30.01.2019 and 12.03.2019.
J U D G M E N T
NADEEM AKHTAR, J. – Through these Constitutional Petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has impugned identical orders dated 27.04.2010 passed by learned VIth Rent Controller Karachi South / respondent No.3 in Rent Cases No. 366/2007 and 375/2007 whereby the said rent cases filed by respondent No.1 for eviction of the petitioner on the ground of default in payment of monthly rent were allowed ; and, identical judgments delivered on 05.01.2011 by learned VIth Additional District Judge Karachi South / respondent No.2 in First Rent Appeals No. 260/2010 and 261/2010 whereby the said appeals filed by the petitioner against her eviction were dismissed. Since the facts and questions of law involved in these identical petitions are common, they were heard together and are being disposed of through this common judgment with the consent of learned counsel for the parties.
2. Relevant facts of these cases are that the above rent cases were filed by respondent No.1 for eviction of the petitioner on the ground of default in payment of monthly rent. It was the case of respondent No.1 that she had purchased the building constructed on Plot No. R.S. 3/40, School Road, Ramswami, Karachi, consisting of ground plus three upper floors, (‘the subject building’) through a registered sale deed dated 16.05.2006 ; a list of tenants of the subject building was provided to her by the previous owner according to which the petitioner was the tenant of Flats No. 10 and 11 (jointly and collectively referred to as ‘demised premises’), rate of rent whereof was Rs.90.00 and Rs.105.00, respectively, excluding electricity and other charges ; after purchasing the subject building, respondent No.1, through her husband, verbally informed the petitioner in June 2006 about the change in ownership and demanded monthly rent from her with effect from June 2006 at the rate of Rs.1,000.00 for each flat ; despite her repeated demands and personal visits by her husband, the petitioner failed to pay the monthly rent to her with effect from June 2006 ; on 13.11.2006, respondent No.1 issued a notice to the petitioner by UMS regarding change in ownership and such fact was also intimated to the petitioner in October 2006 by the previous owner ; and, despite all the above, the petitioner committed default in payment of monthly rent demanded by respondent No.1 at the rate of Rs.1,000.00 for each flat. In the above background, respondent No.1 had prayed for eviction of the petitioner from the demised premises on the ground of default in payment of monthly rent with effect from June 2006.
3. The eviction applications were contested by the petitioner who, in her written statements, denied that the change in ownership was intimated to her by the respondent No.1’s husband or by the previous owner, or monthly rent at the rate of Rs.1,000.00 for each flat was demanded from her with effect from June 2006 or for any other month. It was pleaded by the petitioner that the fact about change in ownership came to her knowledge in January 2007. It was claimed by her that she was not in default as she had already paid monthly rent up to December 2006 to the previous landlord. It was also claimed by her that after coming to know about the change in ownership, she offered rent for the months of January and February 2007 to respondent No.1 at the prevailing rate in January 2007 and then again in March 2007, but she refused to accept the same on both occasions ; upon her refusal, she tendered monthly rent to her for the months of January and February 2007 through money order dated 30.03.2007, but the same was returned undelivered as respondent No.1 had deliberately refused to accept the same ; and in view of the above, she started depositing rent in her name in Miscellaneous Rent Case.
4. In view of divergent pleadings of the parties, a point for determination regarding default was framed by the learned Rent Controller. Thereafter, evidence was led by the parties in support of their respective claims and arguments advanced on their behalf were heard by the learned Rent Controller. Through separate orders dated 27.04.2010 impugned herein, the eviction applications filed by respondent No.1 were allowed by the learned Rent Controller by directing the petitioner to handover vacant and peaceful possession of the demised premises to respondent No.1 within sixty (60) days ; and vide impugned judgments delivered separately in the appeals filed by the petitioner, findings of the learned Rent Controller were upheld by the learned appellate Court by dismissing her appeals and by directing her to vacate the demised premises within sixty (60) days.
5. Syed Amjad Hussain, learned counsel for the petitioner in both these petitions, contended that applications for eviction of the petitioner on the ground of default with effect from June 2006 were filed by respondent No.1 on the basis of a registered sale deed dated 17.05.2006 ; after acquiring ownership of the subject building in May 2006, respondent No.1 was duty-bound to immediately issue notice to the petitioner by registered post under Section 18 of the Sindh Rented Premises Ordinance, 1979, (‘SRPO’) ; no such notice was issued by her immediately ; and, such notice was issued by her admittedly on 13.11.2006 and that too by UMS and not by registered post as required under Section 18 ibid, provisions whereof are mandatory in nature. He submitted that since compliance of Section 18 ibid was not made by respondent No.1, she was not entitled to allege default on the part of the petitioner nor had any cause of action accrued to her. He further submitted that even otherwise there was no default by the petitioner as she had paid monthly rent up to December 2006 to the previous landlord, whereafter she offered monthly rent to respondent No.1 with effect from January 2007 and upon her refusal had sent money order in her name which was deliberately refused by her. Without prejudice to his above submissions, he also submitted that the petitioner was not liable to pay rent at the rate of Rs.1,000.00 for each flat claimed by respondent No.1 as no such amount was ever agreed by her either with the previous landlord or with respondent No.1. It was urged by him that both the learned Courts below failed to appreciate the effect of non-compliance of mandatory provisions of Section 18 of SRPO by respondent No.1. It was further urged by him that this is a case of misreading and non-reading of evidence as the material available on record with regard to payment of monthly rent by the petitioner up to December 2006, the money order sent by her to respondent No.1 towards the rent for the months of January onwards, and deposit of rent for such period by her with the Rent Controller, has not been considered or appreciated by the learned Courts below. It was prayed by him that the impugned orders and judgments, being illegal and unsustainable in law, be set aside.
6. In support of his above submissions, learned counsel for the petitioner relied upon (1) Mst. Sadia Awan V/S Daniyal Pervaiz and others, 2007 SCMR 174, (2) Kanwal Nain and 3 others V/S Fateh Khan and others, PLD 1983 SC 53, (3) Hirjibhai Behrana Dar-e-Meher through Attorney V/S Messrs Bombay Steel Works, Partnership Firm, through Partner, 2001 SCMR 1888, (4) State Life Insurance Corporation of Pakistan, Karachi, PLD 1993 Karachi 642, (5) Abdul Kadir and another V/S Muhammad Yaqoob, 1991 SCMR 1029 and (6) Shezan Limited V/S Abdul Ghaffar and others, 1992 SCMR 2400.
7. On the other hand, Mr. Noor Ahmed Malik, learned counsel for respondent No.1 in both these petitions, contended that the fact about the change of ownership in favour of respondent No.1 came to the knowledge of the petitioner in May 2006, but she deliberately avoided and refused to pay the monthly rent to her ; regarding the date of knowledge of such fact, there is a contradiction in the stance taken by the petitioner in her Miscellaneous Rent Case and affidavit-in-evidence ; the evidence of respondent No.1 on this point had remained unshaken, whereas the petitioner could not prove her stance ; it is not mandatory under Section 18 of SRPO to send the notice for change of ownership by registered post, and therefore the notice sent by respondent No.1 by UMS had served the purpose ; if respondent No.1 had refused to accept rent from the petitioner, as alleged by her, even then she did not comply with the mandatory requirement of Section 10(3) of SRPO ; petitioner had admitted that she came to know about the respondent No.1’s ownership in January 2007, and yet she did not tender rent to her within thirty (30) days as required under Section 18 ibid ; and in his cross-examination, the petitioner’s witness / son had admitted that the petitioner did not pay rent to respondent No.1 with effect from June 2006. Learned counsel strongly supported the impugned orders and judgments and prayed for dismissal of all these petitions.
8. In support of his submissions, learned counsel for respondent No.1 placed reliance upon (1) Habib Bakhsh V/S Mst. Bilquis Begum and others, 1995 SCMR 448, (2) Messrs Habib Bank Limited V/S Sultan Ahmad and another, 2001 SCMR 678, (3) Pakistan National Shipping Corporation V/S Messrs General Service Corporation, 1992 SCMR 871, (4) Mahmood Akbar Alvi V/S Mst. Ayesha Sultana, 1998 CLC 894, (5) Shahnaz Begum V/S Ikhlas Ahmad, 1990 CLC 904, (6) Hameed and 3 others V/S Jitendra and 2 others, 2010 CLC 561, (7) Messrs Mukhtar Brothers V/S Mst. Hawa Bai Admani and 9 others, 1992 MLD 1045, (8) Muhammad Raghib V/S Abdul Razzak, PLD 1994 Karachi 20, (9) Messrs Bamboat & Co. V/S Messrs G.B. Construction Co., 1995 MLD 816 and (10) Syed Hamid Hussain V/S Mst. Humaira Ghiasi, PLJ 1986 Karachi 449.
9. I have heard learned counsel for the parties at length and with their able assistance have also examined the material available on record and the law cited by them at the bar. The main controversy involved in these matters regarding default in payment of monthly rent alleged by respondent No.1 and denied by the petitioner revolves around the question of service of notice of change of ownership by respondent No.1 upon the petitioner and receipt thereof by the petitioner. In this context, the relevant provision is Section 18 of SRPO which reads as under :
“18. Change in ownership. – Where the ownership of a premises, in possession of 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 sub-section (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.”
10. Before discussing the applicability of Section 18 ibid in the instant cases and the implications of its compliance or non-compliance by the parties, it is necessary to discuss the law laid down in relation thereto by the Hon’ble Supreme Court. In Abdul Kadir (supra) and Shezan Limited (supra) cited and relied upon by learned counsel for the petitioner, the Hon’ble Supreme Court was pleased to hold, inter alia, that Section 18 ibid makes it mandatory on the part of the new owner to serve a notice in writing under registered post upon his tenant ; till the time the tenant is intimated under Section 18 about the change of ownership, he was obliged to pay the rent to his previous landlord ; if the new owner fails to serve such notice on his tenant or the tenant, without having knowledge of the transfer of ownership, continues to pay rent to his previous landlord, he shall not be liable to pay rent to the new landlord for the period for which he might have paid rent to the previous owner ; in such an event, he shall not be deemed to have defaulted in payment of rent ; after receiving such notice, if the tenant pays rent due within thirty days from the date when the intimation should, in the normal course, have reached him, he shall not be deemed to have defaulted ; the object of Section 18 is to provide protection to a tenant against the ground of default if he is liable to pay rent because of any change in the ownership of the rented premises ; and, since it is a beneficial provision designed and intended for the benefit of tenants, it is to be construed liberally so that it may suppress the mischief aimed at and may advance remedy.
11. Coming back to the cases at hand, according to respondent No.1 the subject building was purchased by her vide sale deed dated 17.05.2006 whereafter she demanded rent from the petitioner at the rate of Rs.1000.00 for each flat with effect from June 2006. In order to exercise her right under the law as landlady of the demised premises, she was required to send a written intimation by registered post to the petitioner intimating her about change of ownership of the demised premises in her name as provided in Section 18 ibid and as held in the above-cited authorities. It was not the case of respondent No.1 that she had complied with the above mandatory requirements of Section 18. On the contrary, it was her case that her husband had demanded rent from the petitioner with effect from June 2006 by informing her verbally about the change of ownership, and the written intimation in this behalf was sent by her to the petitioner on 13.11.2006 by UMS and not by registered post. It may be noted that intimation dated 13.11.2006 regarding change of ownership produced by respondent No.1 as exhibit A/4 in her rent cases was dispatched by her admittedly in November 2006 by UMS vide exhibit A/5 produced by her. Thus, it is an admitted position that compliance of Section 18 was not made by respondent No.1 as originally the petitioner was intimated verbally and subsequently the written intimation sent to her was not sent by registered post. In view of Abdul Kadir (supra) and Shezan Limited (supra), the purported intimation sent by respondent No.1 to the petitioner by UMS could not be deemed to be an intimation under Section 18 ibid. Contention of the learned counsel for respondent No.1 that it is not mandatory under Section 18 to send such intimation by registered post or that the intimation sent by respondent No.1 by UMS had served the purpose, cannot be accepted in view of the law laid down by the Hon’ble Supreme Court in the above-cited authorities.
12. It was claimed by the petitioner that she was not in default as she came to know in January 2007 about the change of ownership in the name of respondent No.1, and before acquiring such information she had already paid rent up to December 2006 to the previous landlord. However, no document or receipt in support of the above contention was either filed by her along with her written statement or was produced by her witness / son in her evidence. Therefore, the petitioner had failed in discharging the burden to prove the payment of rent up to December 2006 to the previous landlord. In view of the above position, applications bearing CMA Nos. 840/2019 and 841/2019 were filed by the petitioner in these petitions under Order XLI Rule 27 CPC praying that she may be allowed to produce original receipts before this Court as additional evidence showing payment of rent by her up to December 2006 to the previous landlord, which have been opposed by respondent No.1 by filing counter affidavits. I am afraid additional evidence cannot be allowed by this Court in the present proceedings under its constitutional jurisdiction. The above applications, being not maintainable, are, therefore, liable to be dismissed.
13. I have already held that compliance of Section 18 ibid was admittedly not made by respondent No.1 and the intimation sent by her to the petitioner by UMS could not be deemed to be an intimation under the said Section. However, it is an admitted position that after acquiring knowledge about the ownership of respondent No.1 and accepting her as the landlady, the petitioner voluntarily offered rent to her for the months of January and February 2007. In this context, it was the case of the petitioner that she offered rent for the months of January and February 2007 to respondent No.1 in January 2007 and then again in March 2007, but respondent No.1 refused to accept the same on both occasions ; she then tendered rent for the said period to respondent No.1 by money orders dated 30.03.2007, but the same were also refused by her ; and, thereafter she started depositing rent in the name of respondent No.1 in Miscellaneous Rent Case (MRC). In his evidence, it was stated by the witness / son of the petitioner that rent for the above period was deposited by her in MRC on 10.02.2007. Record shows that rent for the months of January, February, March and April 2007 was deposited by the petitioner in the name of respondent No.1 in MRC Nos. 635/2007 and 636/2007 for the first time on 27.04.2007, receipts whereof were produced by the petitioner’s witness. Such serious contradiction in the stance of the petitioner and the evidence led on her behalf clearly shows that her said witness had made a wrong statement regarding deposit of rent for January and February 2007 in MRC on 10.02.2007, and also that rent for the months of January, February, March and April 2007 was not deposited by her before 27.04.2007 although she was aware since January 2007 about the change of ownership in favour of respondent No.1.
14. As respondent No.1 had not served a proper intimation upon the petitioner in terms of Section 18 ibid, the petitioner was not obliged to pay rent to her with effect from January 2007 within thirty days in terms of the said Section. However, since the petitioner had voluntarily acknowledged and accepted respondent No.1 as her landlady in January 2007, she was obliged to pay rent to her from January 2007 onwards for each month within sixty days in terms of Section 15(2)(ii) of SRPO. Thus, by depositing rent on 27.04.2007, the petitioner committed default in payment of rent for the month of January 2007.
15. The upshot of the above discussion is that the petitioner had failed in proving that she had paid rent up to December 2006 to the previous landlord, and she committed default in payment of rent for the month of January 2007 to respondent No.1. It may be observed that if the petitioner had succeeded before the learned Rent Controller in proving payment of rent by her to previous landlord up to December 2006 or by producing receipt etc. in respect thereof as additional evidence, even then she was liable to be evicted in view of the default committed by her for the month of January 2007.
16. In view of the above discussion, the impugned order and judgment do not require any interference by this Court. Accordingly, both these petitions and all applications pending therein are dismissed with no order as to costs.
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J U D G E