2004 S C M R 1852
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ
SHER JANG---Appellant
Versus
DISTRICT JUDGE, ISLAMABAD and 4 others---Respondents
Civil Appeal No. 1329 of 2003, decided on 7th July, 2004.
(On appeal from the judgment, dated 3-7-2003 passed by Lahore High Court, Rawalpindi Bench in Writ Petition No. 1401 of 2003).
(a) Islamabad Rent Restriction Ordinance (IV of 2000)---
----Ss. 17 & 19---Constitution of Pakistan (1973), Art.185(3) --- Leave to appeal was granted by Supreme Court to consider; whether-the tenant be ordered to be evicted on the ground of default in the payment of rent, even though landlords did not issue notice to the tenant as required by and in the manner laid down by S.19 of Islamabad RentRestrictions Ordinance, 2000; whether there was any inconsistency in various judgments of Supreme Court on the question of notice under S.19 of Islamabad RentRestriction Ordinance, 2000; and whether in absence of a positive finding of contumacy the tenant had been rightly ordered to be evicted without framing and trial of issue of default on merits.
E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Major (Recd.) Muhammad Yousuf v. Mehraj-ud-Din and others 1986 SCMR 751 and Malik Safdar Hussain v. Lutuf Ahmad Khan and others 1997 SCMR 567 ref.
(b) Islamabad Rent Restriction Ordinance (IV of 2000)-----
----S. 19---Word `owner' used in S.19 of Islamabad Rent Restriction Ordinance, 2000---Concept---Change of ownership---Mandatory notice to tenant---Scope---In case of change of ownership either by way of sale, gift, inheritance or in any other manner, it is obligatory to send a notice to tenant through registered post and if on receipt of notice the rent due is paid within time specified therein, the tenant is not deemed to have committed any default in payment of rent---Word `owner' used in S.19 of IslamabadRent Restriction Ordinance, 2000, has not limited meaning and encompasses all owners of property who stand in the position of landlord and thus even without formal transfer of property, the real sons and daughters of the owner are deemed to be the owners of the property.
(c) Islamabad Rent Restriction Ordinance (IV of 2000)---
----Ss. 17 & 19---Constitution of Pakistan (1973), Art. 185(3)--Ejectment of tenant---Wilful default---Failure to give notice under S.19 of Islamabad Rent Restriction Ordinance, 2000---Landlord and tenant relationship---Proof---Landlord transferred the premises in the names of his sons who became owners of the premises ---Ejectment petition was filed against the tenant on the ground of wilful default in payment of monthly rent---Eviction order was passed by Rent Controller and the same was maintained by Appellate Court and High Court---Plea raised by the tenant was that no notice of change of ownership was given to him and he had been depositing the rentwith the previous owner ---Validity--If no separate notice was given, the ejectment petition itself would be considered a sufficient notice for the purpose of S.19 ofIslamabad Rent Restriction Ordinance, 2000---Supreme Court while granting leave in the present case stayed eviction of tenant and directed him to deposit the agreed rentupto the date with Rent Controller and further directed the tenant to deposit future monthly rent as per law but the tenant had not deposited the rent for the period prior to the institution of ejectment petition and thus the conduct of tenant in denying relationship of landlord and tenant and non-payment of rent as per direction of Supreme Court was contumacious---Tenant having not deposited the rent and not willingly accepting the respondents as landlords would not be entitled to any discretionary relief---Tenant failed to establish that he was not defaulter in terms of S.17 of Islamabad RentRestriction Ordinance, 2000---High Court in exercise of Constitutional jurisdiction had rightly exercised discretion in upholding ejectment of the tenant and judgment being not against any law or principle of law, did not call for any interference---Leave to appeal was refused.
Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24, Miss Abida Riasat Rizvi v. Philomena Mathew and 4 others PLD 1994 SC 452 and Malik Safdar Hussain v. Lutuf Ahmad Khan and others 1997 SCMR 567 ref.
Ibad-ur-Rehman Lodhi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Appellant.
Abdur Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents Nos.3 to 5.
Date of hearing; 7th July, 2004.
JUDGMENT
MUHAMMAD NAWAZ ABBASI, J.---------This appeal with the leave of the Court is directed against the judgment, dated 3-7-2003 passed by a learned Single Judge of Lahore, High Court, Rawalpindi Bench; Rawalpindi in a Constitution petition. The leave in the appeal was granted vide order, dated 10-9-2003 as under:---
"Leave to appeal is granted to consider the following' questions:---
(i)Can the petitioner-tenant be ordered to be evicted on the ground of default in the payment of rent, even though admittedly respondents-landlords did not issue the notice to the petitioner as, required by and in the manner laid down by section 19 of theIslamabad Rent Restrictions Ordinance, IV of 2000?
(ii)Is there any inconsistency in the various judgments of this Court on the above question? Some of the referred judgments are E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536, Major (Retd.), Muhammad Yousuf v. Mehraj-ud-Din and others 1986 SCMR 751 and Malik Safdar Hussain v. Lutuf Ahmad Khan and others 1997 SCMR 567. The alleged inconsistency needs to be settled.
(iii)In the absence of a positive finding of contumacy, has the petitioner-tenant been rightly ordered to be evicted, without framing and trial of issue of default on merits?
2.In the meanwhile eviction of the petitioner is stayed. He is however, directed to deposit the agreed rent up to date with the Rent Controller, Islamabad on or before 30-9-2003 and continue to deposit the future monthly rent, as per law. The deposited amount will not be paid by Rent Controller without orders from this Court.' Non-deposit will render the petitioner' liable to straightaway eviction. "
2. The relevant facts in the background are that property bearing Uo.26, I&T Centre, G9/4, Islamabad, was owned by Najeebullah Khan, father of the respondents Nos.4 and 5 and the appellant was in its occupation as tenant at the rate of monthly rent of Rs.15,000 for two shops bearing Nos.7 and 8 and Rs.2,000 for the residential flat. The said respondents, in the year 2002, filed a petition under section 17 of the IslamabadRent Restriction Ordinance, 2001 for. ejectment of the appellant from the premises on the ground of default in payment of rent nor the period after 1-6-2001. The appellant denied the relationship of landlord and tenant on the ground of non service of the notice under section 19 of the Islamabad Rent Restriction Ordinance, 2001. The appellant also contested the ejectment petition on merits and pleaded that he payment of rent for the period mentioned in the ejectment petition vas made to Najeebullah, the owner of the property but it being oral tenancy, he was not regularly issuing the receipts. The appellant, however, for future, was ready to accept the respondents as the landlords of the property and to pay the rent to them accordingly. The learned Rent controller, having framed the preliminary issue regarding the existence of relationship of landlord and tenant between the parties, recorded the evidence and ultimately while holding that the relationship of landlord ad tenant was in existence between the parties, allowed the ejectment petition; vide order, dated 21-10-2003 and directed the appellant to handover the vacant possession of. the premises. The ejectment order passed by the RentController was further upheld by the District Judge, Islamabad, in appeal preferred by the appellant, vide judgment, dated 12-5-2003. The appellant invoked the Constitutional jurisdiction of the High Court in the matter and a learned Single Judge of the High Court, vide judgment, dated 3-7-2003, dismissed the writ petition with direction to the appellant to vacate the premises before 31-8-2003.
3. Learned counsel for the appellant has raised the following contentions in support of this appeal:---
(a)Without the service of notice under section 19 of Islamabad Rent Restriction Ordinance, 2001 through registered post on change of ownership of the premises, the new owner cannot seek ejectment of the tenant on the ground of default under section 17 of the above Ordinance.
(b)That admittedly no notice under section 19 (ibid), was served upon the appellant and in absence of such a notice the ejectment on the ground of default was illegal.
(c)The rent due was paid by the appellant to the ex-owner and the future rent was deposited with the Rent Controller under the direction of this Court, therefore, the denial of relationship of landlord and tenant for want of notice under section 19 of IslamabadRent Restriction Ordinance, 2001 would not entail the penalty of ejectment and the appellant would become tenant of new owner from the date of filing of ejectment petition. The learned counsel while placing reliance on E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536 contended that the Rent Controller and the Appellate Court as well as the High Court, having taken wrong view of the matter, have failed to appreciate the correct legal position.
4. The main issue in the present case relates to the protection provided to a tenant under section 19 of Islamabad Rent Restriction. Ordinance, 2001. Section 19 is read as under:---
"19. Tenant to be informed in case of transfer of ownership. ---Where the ownership of a building or rented land in the possession of a tenant has been transferred by way of sale, gift, inheritance or in any other mode or manner whatsoever, the new owner shall send and intimation of such transfer in writing by registered post to the tenant of such building or rented land and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of subsection (2) of section 17 if the rentdue is paid within thirty days from the date when the intimation should, in the normal course, have reached the tenant."
5. The learned counsel for the respondents has forcefully argue that the appellant had knowledge of the change of ownership and notwithstanding the service of a notice under section 19 ibid, the ejectment petition itself would be treated a sufficient notice. The appellant even after service in the ejectment petition, neither paid rent to the respondents nor deposited the same in the Court of Rent Controller for the period mentioned in the ejectment petition. The rent deposited for the subsequent period under the direction of this Court, would not improve the case of appellant and even in compliance of the order of this Court, the rent was not deposited for the period prior to the filing of ejectment petition. The learned counsel while placing reliance on Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24, Miss Abida Riasat Rizvi v. Philomena Mathew and 4 others PLD 1994 Supreme Court 452, Malik Safdar Hussain v. Lutuf Ahmad Khan and others 1997 SCMR 567 and Major (Recd.) Muhammad Yousaf v. Mehraj-ud-Din and others 1986 SCMR 751 has submitted that the ejectment of appellant was unquestionable.
6. The perusal of section 19 of Islamabad Rent Restriction Ordinance, 2001 indicates that in case of change of ownership either by way of sale, gift, inheritance or in any other manner, it is obligatory to send a notice to the tenant through registered post and if on receipt of notice the rent due is paid within time specified therein, the tenant is not deemed to have committed any default in payment of rent. The word 'owner' used in section 19 of Islamabad Rent Restriction Ordinance, 2001 has not the limited meaning and encompasses all owners of property who stand in the position of landlord and thus even without formal transfer of property, the respondents Nos.4 and 5 being real son and daughter of Najeebullah, would be deemed to be the owners of property. Be that as it may, the tenancy in the present case being not statutory tenancy, the law laid down by this Court in E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536 with reference to section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, would not be applicable. In the present case, admittedly the respondents filed an ejectment petition on the ground of default in payment of rent for the period after 1-6-2001 without giving notice under section 19 ibid and the appellant denied the relationship of landlord and tenant on the strength of said section, without payment of rent either to the respondent or through deposit in Court even for the period subsequent to the filing of ejectment petition and for the first time made part deposit of rent under the direction of this Court. Najeebullah Khan, the original owner and landlord, while appearing in the Court of Rent Controller, as witness has categorically stated that he having transferred the property in the name of respondents, had informed the appellant and that the rent of the premises for the period after June, 2001 was outstanding. The appellant did not appear in the witness-box to make a statement in rebuttal and the witness, who appeared on his behalf, had no direct knowledge of the correct factual position. The appellant denied the relationship of landlord and tenant on the plea that the property was owned by Najeebullah and on change of ownership, without giving notice under section 19 of Islamabad Rent Restriction Ordinance, 2001, the ground of default was not available to the respondents for his eviction. The appellant admittedly was tenant of Najeebullah father of respondents Nos.4 and 5 who subsequently, having transferred the property in their names, was still managing the affairs of property and the appellant also ultimately accepted respondents Nos.4 and 5 as owner of the property, therefore, he would be estopped by his conduct from willfully denying the relationship of landlord and tenant. We, in the given facts, without dilating further on the issue of notice under section 19 of above Ordinance hold that if no separate notice in terms of the above provisions was given, the ejectment petition itself would be considered a sufficient notice for the purpose of section 19 of Islamabad Rent Restriction Ordinance, 2001. This Court while granting leave in this appeal stayed the eviction of appellant and directed him to deposit the agreed rent up to the date with Rent Controller, Islamabad, on or before 30-9-2003 and continue to deposit the future monthly rent as per law but the learned counsel for the respondents has informed us that the appellant has not deposited the rent for the period prior to the institution of ejectment petition and thus the conduct of appellant in denying relationship of landlord and tenant and non payment of rent as per direction of this Court, was contumacious. The appellant having not deposited the rent and not willingly accepting the respondents as landlords, would not be entitled to any discretionary relief. The learned counsel for the appellant has not been able to satisfy us that appellant was not defaulter in terms of section 17 ofIslamabad Rent Restriction Ordinance, 2001.
7. We having heard the leaned counsel for the parties and gone through the record with their assistance find that the High Court in exercise of its Constitutional jurisdiction has rightly exercised discretion in upholding ejectment of appellant and the impugned judgment being not against any law or principle of law, would call no interference.
8. The upshot of above discussion is that this appeal fails and the same is accordingly dismissed with no order as to costs. The appellant is however, granted three months time to vacate the premises subject to payment of rent in advance within 15 days.
M.H./S-46/SAppeal dismissed.
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