1983 PLP 398 (CLC)

This first appeal is directed against the judgment dated 20‑12‑1979, passed by the learned Rent Controller, Samaro at Jamesabad, whereby, finding that there existed no relationship of landlord and tenant between the parties, the learned Rent Controller dismissed the rent application filed under section 13 of the Sind Urban Rent Restriction Ordinance, 1959, by the appellant for eviction of the respondent from the premises in dispute on grounds of default in payment of rent and subletting.

2. The facts briefly stated are that the appellant was transferred a property bearing Custodian No. A‑7 situated in Jamesabad town by the Settlement Department and P. T. D. dated 17‑11‑1966 was issued in his favour. The property consisted of a residential house and three shops. He claimed that since respondent No. 4 was in occupation of the premises in dispute since before 20‑12‑1958, he was his statutory tenant. He also claimed that he had served the respondent No. 4 with notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, on 15‑7‑1978 and since the respondent No. 4 had committed default in payment of rent and had sublet the premises to respondents 1 to 3 he is entitled to the possession of the premises in dispute. He, therefore, filed an application for eviction of the respondents as stated above.

3. It has been contended that service of notice under section 30 of the Displaced Persons Compensation and Rehabilitation Act, 1958, was not valid and effective, and therefore, there existed no relationship of landlord and tenant between the parties. Respondent No. 4 has also claimed to be the owner of the property. The rest of the contentions owned on behalf of the appellant, have been denied on behalf of respondent No. 4.

4. On the pleadings of the parties the Rant Controller framed a number of issues including the one with regard to the existence of relationship of landlord and tenant between the parties which is as under :‑ "Whether there is tenancy between the applicant and opponent 4?" Finding this preliminary issue in favour of respondent No. 4 he dismissed the application by the impugned judgment resulting in the present appeal.

5. I have heard Mr. Muhammad Sharif, the learned counsel for the appellant and Mr. Shamdas for the respondents. The short question for decision involved in this appeal is as to whether there existed relationship) of landlord and tenant between the appellant and respondent No. 4 or not. The learned Rent Controller has failed to find the existence of such relation ship for the reason that neither the appellant has served respondent No. 4 with notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, nor he had been able to rebut the assertion of respondent No. 4 with regard to his ownership of the property in question.

6. The learned counsel for the appellant has raised three‑fold contention; firstly, that after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 with effect from 1‑7‑1974, section 30 of the Act was no longer on the statute book and there was no necessity of service of any such notice under section 30 of the Act; secondly, that under the provisions of section 30(3) no notice is necessary in the case of subletting ; and thirdly, the Rent Controller being a tribunal of limited jurisdiction the plea with regard to the ownership of respondent No. 4 of the property in question could not have been legally adjudicated before the learned Rent Controller.

7. In support of his first contention the learned counsel for the appellant has relied on the decision reported in the case of Muhammad Ramzan v. Choudhri Bashir Ahmed (P L D 1981 S C 340) wherein it was held that the Displaced Persons (Compensation and Rehabilitation) Act, 1958 having been repealed the tenant is not entitled to any notice or protection under section 30 of the Act, nor the landlord is under any liability to send such notice to the tenant before filing ejectment application. It would be of advantage to reproduce the following observations of the Supreme Court in that regard : "As held in the foregoing discussion, the character and intention under lying the provisions contained in section 30, which related to the issuance of notice and protection of section 30, were of transitory and temporary character. They were not intended to create any permanent rights and liabilities. Therefore, the right, privileges, obligation or liability or for that matter the penalty or forfeiture and other similar incidence covered by various clauses of section 6 of the General Clauses Act would not apply to those provisions of section 30 after the repeal which were of transitory and temporary character." In the circumstances, the contention raised on behalf of the appellant is not without substance.

8. With regard to the second contention raised on behalf of the appellant, reliance has been placed on the case of Nawabzada A. K. Mumtaz v. Begum Naima Khanim (P L D 1967 Lah. 11), wherein it was held that the question of sub letting alleged against the tenant can be enquired into by the Rent Controller even though there has been no prior notice of demand under section 30(3) (i) (ii) of the Displaced Persons (Compensation and Rehabilitation Act), 1958. Accordingly, this contention also does not seem to be without force.

9. So far the third contention is concerned, the learned Rent Controller relying on the version of respondent No. 4 to the effect that he was the owner of the property in question and that the P. T. D. obtained by the appellant was through fraud and since respondent No. 4's version had not been challenged in the cross‑examination, held that respondent No. 4 was the owner of the property. It has been contended on behalf of the petitioner that neither the question of the ownership of the property nor the P. T. D. having been obtained by fraud could be canvassed in the Court of learned Rent Controller as it is tribunal of limited jurisdiction, and that these questions could be better agitated before the appropriate forum. In the instant case, it is not denied that the P. T. D. was issued in favour of the appellant and it has been produced on the record. This evidence was conclusive on his title as transferee of the property under the provisions of the Displace Persons (Compensation and Rehabilitation) Act, 1958. It is also not denied that respondent No. 4 was not in occupation of the premises at the time of the transfer in favour of the appellant. Therefore, there existed relationship of landlord and tenant between the appellant and respondent No.

4. Reliance in' that respect has been placed on the case of Ghulam Rasool v. Ch. Din Muhammad (P L D 1967 Lah. 665). I, therefore, find that this contention raised on behalf of the appellant is also not without force.

10. In view of the above discussion, therefore, there exists relationship of landlord and tenant between the appellant and respondent No.

4. The finding of the learned Rent Controller, therefore, on the issue is reversed and the appeal is allowed accordingly. The case is remanded to the learned Rent Controller to decide it on the rest of the issues according to law, after the parties are allowed to lead additional evidence if they so choose. In the circumstances, there will be no order as to costs. K. M. A. Appeal allowed.