Judgment Sheet
IN THE HIGH COURT OF SINDH KARACHI
Constitutional Petition No. S – 221 of 2011
& Constitutional Petition No. S – 222 of 2011
Petitioner : Noor Ellahi Irfani 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. 365/2007 and 371/2007 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. 258/2010 and 259/2010 whereby the said appeals filed by the petitioner against his eviction were dismissed. Since the facts and questions of law involved in both 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. 8 and 9 (jointly and collectively referred to as ‘demised premises’) ; the monthly rent of demised premises was Rs.120.00 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 him 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 through UMS regarding change in ownership and such fact was also intimated to him 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 his written statements, denied the original / old rate of rent alleged by respondent No.1 by claiming that the agreed monthly rent of Flats No.8 and 9 was Rs.90.00 and Rs.21.50, respectively. It was denied by him that the change in ownership was intimated to him by the respondent No.1’s husband or by previous owner, or monthly rent at the rate of Rs.1,000.00 for each flat was demanded from him with effect from June 2006 or for any other month. It was alleged by him that the back-dated notice dated 27.05.2006 regarding change in ownership filed and relied upon by respondent No.1 was a fabricated document, which was actually received by him on 13.11.2006 by UMS. It was pleaded by him that he was not in default as he had already deposited monthly rent up to December 2006 in Miscellaneous Rent Cases before the Rent Controller in the name of previous landlord ; after coming to know about the change in ownership, he offered monthly rent to respondent No.1 with effect from January 2007 at the prevailing rate, but she refused to accept the same ; upon her refusal, he tendered monthly rent to her for the months of January and February 2007 through money order dated 11.01.2007, but the same was returned undelivered as respondent No.1 had deliberately refused to accept the same ; and in view of the above, he 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 his appeals and by directing him 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 he had deposited monthly rent up to December 2006 in advance with the Rent Controller in the name of previous landlord, whereafter he 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 him 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 him to respondent No.1 towards the rent for the months of January onwards, and deposit of rent for such period by him 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 he 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 paragraph 7 of his Miscellaneous Rent Case and paragraph 8 of his affidavit-in-evidence ; the evidence of respondent No.1 on this point had remained unshaken, whereas the petitioner could not prove his 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 him, even then he did not comply with the mandatory requirement of Section 10(3) of SRPO ; petitioner had admitted that he came to know about the respondent No.1’s ownership on 13.11.2006, and yet he did not tender rent to her within thirty (30) days as required under Section 18 ibid ; and, in his cross-examination the petitioner had admitted that he 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 the 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 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 him 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 him verbally about the change of ownership in her favour, 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 27.05.2006 regarding change of ownership produced by respondent No.1 as exhibit A/4 in her rent cases was dispatched by her admittedly on 11.11.2006 by UMS vide exhibit A/5 produced by her. Thus, it is an admitted position that compliance of Section 18 ibid was not made by respondent No.1 as originally the petitioner was intimated verbally and subsequently the written intimation sent to him 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. The sale deed dated 17.05.2006 filed and relied upon by respondent No.1 shows that the subject building was purchased by her from eight (08) co-owners, one of whom was Mst. Shama Hussain W/O Ghulam Qadir Khan. As noted above, compliance of Section 18 ibid was not made by respondent No.1 as admittedly the purported intimation regarding change of ownership was not sent by her to the petitioner by registered post as required under Section 18 ibid, but was sent by UMS on 13.11.2006. As per exhibits O/3 and O/4 produced by the petitioner in his evidence, which were deposit receipts issued by the Rent Controller in his MRC No.1071/2006, he had deposited rent in respect of the demised premises before the Rent Controller in the name of the above named previous co-owner for the months of April, May, June and July 2006 on 28.07.2006 and for the months of September, October, November and December 2006 on 13.09.2006. In view of the above position and the law laid down by the Hon’ble Supreme Court in Abdul Kadir (supra) and Shezan Limited (supra), even if compliance of Section 18 was made by respondent No.1, the petitioner was still not liable to pay rent to her up till December 2006 nor could he be deemed to have committed default for the said period as he had already deposited rent for the said period with the Rent Controller in the name of the previous landlord prior to receiving the purported intimation from respondent No.1 on 13.11.2006.
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. Therefore, in my humble opinion the petitioner was not obliged to pay rent to her even after December 2006 i.e. from January 2007 onwards. However, after acquiring knowledge about her ownership and accepting her as his landlady, the petitioner voluntarily offered rent to her for the months of January and February 2007, and upon her refusal, he sent the same on 11.01.2007 through a money order, receipt whereof was produced by him in his evidence as exhibit O/6 ; and as she refused to accept the money order, rent for the months of January and February 2007 was deposited in her name by the petitioner on 10.02.2007 with the Rent Controller in MRC No. 221/2007. It is not disputed that since then monthly rent is being regularly deposited by him in the above case. Thus, the petitioner did not commit default even with effect from January 2007. It may be noted that the eviction applications were filed by respondent No.1 in February 2007.
14. The upshot of the above discussion is that the petitioner did not commit default in payment of rent up till December 2006 as rent for the said period had already been deposited by him in Court in the name of the previous landlord much prior to receiving the purported intimation from the new landlady / respondent No.1 regarding change of ownership of the demised premises in her name ; and he was also not in default with effect from January 2007 onwards as rent from the said period was deposited by him in Court within time in the name of respondent No.1. Regarding the rate of rent claimed by respondent No.1, it may be observed that she did not produce any material before the learned Rent Controller to show that monthly rent for each flat was Rs.1000.00 or there was an agreement in this behalf between the petitioner and the previous landlord or between the petitioner and herself. Therefore, eviction applications filed by respondent No.1 in February 2007 for eviction of the petitioner on the ground of default with effect from June 2006 were not maintainable. Both the learned courts below have failed to appreciate the above important aspects as well as the evidence on record, and as such the impugned order and judgment cannot be allowed to remain in the field.
15. Accordingly, the impugned order and judgment are set aside and Rent Cases No. 365/2007 and 371/2007 filed by respondent No.1 against the petitioner are hereby dismissed. Both these petitions are allowed in the above terms with no order as to costs.
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J U D G E