P L D 1964 (W (PLP)

This is an appeal against the order, dated the 21st of July 1962, of Mr. C. M. Shafqat, District Judge, Lyallpur, who dismissed the appeal against the original order of ejectment, dated the 29th of June 1962, of the learned Rent Controller, Lyallpur, whereby he had ordered the ejectment of the appellant from the portion of shop No. P. 238/A Montgomery Bazar, Lyallpur. In execution of the order of ejectment the possession has already been delivered to the respondent.

2. Doctor Muhammad Yasin is the transferee of the shop in dispute, who filed a petition against the appellant and two other persons, namely, Abdul Majid son of Babu Khan and Abdul Majid son of Phola, for ejectment alleging that the appellant was a statutory tenant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act and the other two persons were in occupation as his sub‑tenants. The grounds on which the ejectment was sought were that the appellant was a defaulter having failed to pay the rent at the rate of Rs. 25 P.M. from the 11th of December 1959 to the 7th of July 1962; that he had sublet the premises to two Abdul Majids named above; and that the respondent needed the premises for his own personal use. The appellant, by way of preliminary objections in his written statement, alleged that the West Pakistan Urban Rent Restriction Ordinance VI of 1959 was not applicable; that the said property being vested in the Central/Provincial Governments, the Rent Controller had no jurisdiction in the case; and that the relationship of landlord and tenant did not exist between the parties. The allegation that the appellant had failed to pay the rent was not denied. It was, however, alleged that Abdul Majid son of Babu Khan and Abdul Majid son of Phola, were not sub‑tenants of the appellant and they had been in posses sion of the premises in their own right since before the coming into existence of Pakistan. It was further alleged that alone of the two Majids had been given any notice, and the notice given to the appellant was invalid for the reason that the amount of rent was not mentioned therein. The learned Rent Controller framed the following two issues:‑ (1) Whether the relationship of landlord and tenant exists between the parties? (2) Whether the Rent Controller has no jurisdiction to entertain the present application? The case was adjourned for the evidence of the parties for the 26th of May 1962. On that day the appellant Faqir Muhammad admitted his possession as a tenant under the respondent subject to the decision of his revision petition which he had filed before the Settlement Commissioner against the order of transfer in favour of the latter. He also stated that he was prepared "to deposit the rent". He thereby admitted the relationship of landlord and tenant. On the 29th of June 1962 the appellant made a statement that his revision petition had been dismissed by the Settlement Commissioner. The learned Rent Controller, therefore, passed the order of ejectment on the same day.

4. The present appellant Faqir Muhammad alone preferred an appeal. He impleaded both Abdul Majids as pro froma respondents and explained in paragraph 7 of his grounds of appeal that he had done so because they were his servants and had been working in that capacity in the shop since 1957. The appeal was dismissed by Mr. C. M. Shafqat, District Judge, Lyallpur. The appellant, Faqir Muhammad, has preferred the second appeal. It was admitted to consider the question if the Ordinance VI of 1959 was applicable to the properties acquired under section 3 of the West Pakistan Displaced Persons (Com pensation and Rehabilitation) Act, 1958, and was it competent for the Rent Controller to pass any order in respect thereof. It has since been held in Abdus Salam v. Waheed‑ud‑Din (P L D 1963 Lah. 517) that:‑ "The West Pakistan Urban Rent Restriction Ordinance, 1959, is not rendered inapplicable to the property acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and that Persons to whom provi sional transfers of such property have been made, are not prevented from instituting and prosecuting proceedings under that Ordinance against the tenants of those properties." The learned counsel for the appellant did not, therefore, press this point at the time of hearing.

5. It was, however, contended by the learned counsel for the appellant, Mr. Islam‑ul‑Haq, that he, by his statements dated the 22nd of June 1962 and the 29th of June 1962, had agreed only to the decision of the preliminary issues against him, but that did not mean that the learned Rent Controller should not have proceeded to frame the issues on other material questions of fact and law which were arising in the case. It is true that the Rent Controller did not frame the issues on merits. The provision of framing the issues is contained in Order XIV of the, Civil Procedure Code and under clause (5) of Rule I of Order XIV, the Court has to frame and record the issues when a material proposition of fact or law is affirmed by the one party and denied by the other and it is necessary so to do for the right decision of the case. There is no denying the fact that the Code of Civil Procedure is applicable to the proceedings under Ordinance VI of 1959 for limited purposes which are contained in sections 16 and

17. By virtue of them, an Appellate Authority or a Rent Controller, has powers to summon and enforce attendance of witnesses to execute the orders under section 10 or 13 and every order passed in appeal under section

15. It was, therefore, not obligatory on the Rent Controller to frame any issue. If a Rent Controller frames issues, it is done only to facilitate trial. The failure of a Rent Controller to frame issues in any case, therefore, does not furnish a ground to urge that the Rent Controller has in any way acted illegally. The Rent Controller is a special tribunal constituted under Ordinance VI of 1959. He is not a Court stricto sensu and it was so held in Corporation of Lahore v. Fahmeeda Begum (P L D 1952, Lah. 258) and Mst. Aziz Begum v. Sh. Nur Muhammad and others (P L D 1962 Lah. 887), and the proceedings before them cannot be challenged, in my opinion, on the ground that they failed to observe the procedure prescribed for the Civil Courts. I may with advantage refer to the observations of Qadeeruddin J. in Khuda Bux v. Fida Husain and others (P L D 1963 Kar. 446) that:‑ "Special tribunals are often appointed so that the strictness of elaborate technicalities may, not hamper their proceedings. If they are by circuitous arguments subjected to the same strictness, irrespective of the object of legislation of the ends of justice and without an express or implied but definite require ment of law, it may amount to indirectly frustrating the purpose of their creation." The fact, that no issue was framed, by itself, will not, therefore make the order of the Courts below illegal or irregular.

6. It may further be noticed that no prejudice has been caused to the appellant by the procedure adopted in deciding the case without framing the issues. The appellant did not deny the fact that he was defaulter in the payment of rent. The default being there he was liable to ejectment under section 13 (2) (1) of the Ordinance. It is true that the non‑payment of rent does not ipso facto result in an order of ejectment. On proof of default; the Rent Controller has to exercise his discretion whether or not he should, in the circumstances of the case, order ejectment, There may be a default and still the Rent Controller may refuse to pass an order of ejectment. The discretion to be exercised be him has to be based on judicial consideration and he has to take care that it is completely immune from the element of a personal whim and caprice. It cannot be said that the Controller has acted capraciously or arbitrarily in the present case. The appellant is admittedly a defaulter. The default took place due to the fact that the appellant denied the title of the respondent and his right to receive the rent. The denial of title under section 116 of the Transfer of Property Act results in the forfeiture of tenancy. The principle contained in section 116 is an equitable principle and was applicable to the whole of India including the defunct province of Punjab. By the enactment of Transfer of Property Act, it was given a statutory recognition. The Transfer of Property Act was not made applicable by the Provincial Govern ment by a notification under section 1 of the Transfer of Property Act. Section 116 of the Transfer of Property Act is, therefore, not applicable, but the principle embodied therein, grounded on equity, is still applicable to the Punjab. In this view of the matter I am supported by a Full Bench judgment of Lahore High Court in Milkha Singh v. Mst. Shankari and others (A I R 1947 Lah. 1), where it was held that the doctrine of part performance contained in section 43‑A of the Transfer of Property Act being an equitable principle was applicable to the Punjab, although the Act itself had not been made, applicable there by a notification of the Provincial Government. In the Punjab we have obviously no law like section 11 of the Transfer of Property Act. We, therefore, must act in accordance with the principles of justice equity and good conscience. The "rules of English Law as to forfeiture of tenancy are that a tenant will forfeit his holding if he denies his landlord's title in clear unmistakable terms whether by matter of record or by certain matter in pais." The Courts of India have always held the rules of English Law as to forfeiture of tenancy consonant with these principles and to be applicable to India.

7. In the present case when there is an admitted default on the part of the appellant in the payment of rent, and also that he denied the title of his landlord, it cannot be said that the Courts below have not exercised their discretion judicially. The learned counsel for the appellant failed to point out any facts or circumstances, which he might have proved to persuade the Court to exercise the discretion in his favour.

8. The learned counsel for the appellant next contended that the respondent landlord had based his petition also on the allegations that he needed the premises for his personal use and that the petitioner had sublet the premises; and since the petitioner had denied them, it was necessary for the Court to have framed issues on these questions. The allegations undoubtedly are material, but no issue was framed in respect of them, and there is no finding given by the Rent Controller about any of these allegations. The order of ejectment, in fact, is not based on any of these grounds. The respondents have not based their case on any of these pleas before me as well. The appellant, under the circumstances, is not in any way prejudiced by the omission of the Rent Controller to adjudicate upon these questions.

9. It was next contended that the appellant pleaded the invalidity of the notice given to him under section 30 of the Act. In paragraph 4 of his written statement he admitted the receipt of notice but pleaded that it was invalid for the reason that the respondent had failed to mention the amount of rent. The provision for the notice is contained in proviso (b) to clause (1) of section 30 which reads as:-- "It shall not be lawful for the transferee to eject such persons from the house, shop, industrial concern, cinema house or printing press for a period of six years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due)." According to this provision a person in possession of the evacuee property transferred under Displaced Persons (Compensation and Rehabilitation) Act, 1958, is to enjoy a statutory protection for a period of six years which period is to commence from the date of notice. The statutory tenancy, between the transferee and the occupant comes into being from the date of the transfer. The notice required to be given by the transferee is only of the fact] that transfer has been made in his favour. It is with reference to this notice that the period of six years for which the tenant is protected against ejectment is computed. It has nothing to do with the creation of a relationship of landlord and tenant between the transferee and the occupant, because by the fact of transfer that comes into being automatically by operation of law. If the requisite notice as contemplated in section 30 is not given, its effect is that occupant who has become statutory tenant cannot be ejected, because his liability to ejectment arises only if the tenant fails to pay the rent within three months from the receipt of a notice of demand sent to him by the transferee by a registered notice. So far as the terms and conditions for the payment of rent or otherwise on which the person in possession is to be a tenant they have to be the same as exist immediately before the transfer. Since the respondent had not stated the amount of rent in the notice and had only made a demand of it, the appellant by virtue of clause (1) of section 30 was liable to pay the same rent which he was liable to pay immediately before the transfer. It is not a requirement of law that the transferee should in his notice also state the amount of rent which the occupant is requested to pay to him. In case, however, a landlord wants to charge a higher rent on the basis of the latest assessment of the Municipality or the local authority (as the case may be), which he is permitted to do under proviso (a) to clause (1) of section 30, he may state that rent in his notice. The occupant, in that case, will have to pay the rent so claimed and not the one which he was paying or was liable to pay immediately before the transfer. In the present case, the notice contained a demand of Rent but no amount was specified. The appellant, therefore, should have, on the receipt of the notice, paid the same rent which he was liable to pay before the transfer. The notice in the instant case was perfectly valid.

10. No other ground was urged. The appeal is dismissed. There should be no order as to costs. S. Q. Appeal dismissed.