P L D 1976 Karachi 1213 (PLP)

3. On 3-9-1965, the respondent sent a notice. A. D., to the appellant intimating that the house in question had been finally allotted to him, under the earmarking scheme and making a demand for rent for the house at the rate of R,s. 15 per month. The notice also contained an extract from the order of the Settlement Commissioner and it was alleged therein that the appellant, by reason of the findings of the Settlement Commissioner, was net entitled to the protection granted under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as the Act. The above notice was followed by a second notice, dated 24-4-66 for payment of rent. On the appellant failing to pay any rent for the house to the respondent, the latter filed a Civil Suit in 1967 against the appellant for the possession, which was dismissed on 30-5-1969 on the ground that the appellant was a, statutory tenant and was entitled to protection under section 30 of the Act, being in posses3ion of the house prior to 28-12-1958, and hence the jurisdiction of the civil Court was barred and the matter could only be dealt with under the provisions of the Ordinance.

5. After the dismissal of the above suit there was some correspondence between the parties relating to the payment of rent. In that correspon dence the stand taken by the respondent was that the notice which had, already been sent to the appellant on 3-9-1965 was valid notice under section 30 of the Act, that in spite of the said notice the appellant had com mitted default in payment of rent and that further damage had been done by the appellant to the house. The appellant, on the other hand, contended that the notice of 3-9-1965 was not a valid notice, that the rent due was at the rate of Rs. 5 per month and could only be claimed for the immedi ately preceding three years. The allegation regarding damage was denied. On 15-4-1970, a money order for Rs. 180, being the rent for 3 years at the rate of Rs. 5 per month, was sent by the appellant to the respondent. This money order was refused by the respondent.

6. On 28-4-1970, the respondent filed an applicatioh with the Rent Controller for the ejectment of the appellant on the ground that he was a defaulter, that he had caused damage to the house and that the house was required for the bona fide occupation of the respondent. These allegatiops were denied by the appellant in his written statement.

7. The Rent Controller held the appellant had committed default in the payment of rent, and that further he had caused damage to the house. The claim of the respondent that he required the house for his bona fide occupation was rejected. On appeal, the learned Additional District and Sessions Judge upheld the decision of the Rent Controller only in regard to default but came to the conclusion that the allegation of damage had not been proved.

8. Mr. Akhtar Mahmood, the learned counsel for the appellant, has raised a two-fold contention before me. The first contention is that the notice of 3-9-1965 sent by the respondent could not be treated as a notice under section 30 of the Act as in that notice the respondent had expressly denied that the appellant was a tenant or was entitled to the protection afforded by section 30 of the Act. His second contention was that even if it somehow be held that the notice of 3-9-1965 was a valid notice under section 30 of the Act the lower Courts had not exercised the discretion properly in direcitng the ejectment of the appellant, specially in view of the conduct of the respondent in filing a civil suit against the appellant on the ground that he was a trespasser and not a tenant.

9. In regard to the first contection raised by Mr. Akhtar Mahmood, it may be pointed out that section 30 of the Act does not require that notice thereunder should be in any specific form. All that the section requires is that there should be two types of notices, one intimating the transfer of the property, and the second making a demand for rent, and that both these notices must be sent by registered post, acknowledgment due. The two notices however, need not be sent separately but could be combined, as has been held by their Lordships of the Supreme Court in the case reported in E. A. Evans v. Mohammad Ashraf (PLD 1974 S C 536). It is an admitted position that in the instant case the notice, dated 5-9-1965, was sent by registered post, ackowledgment due. Paragraphs 4, 6 and 7 of the said notice recite as follows :- "

4. That earmarking proceedings conducted in favour of my client have been confirmed and the P. T. O. issued in my client's name has also been upheld with retrospective effect . .

6. That the rental arrears outstanding against you at the monthly rate of rupees fifteen have not been so far cleared by you despite repeated demands of my client.

7. That you are hereby called upon to vacate the house No. C/1759 within fifteen days from the date of receipt of this notice and also to clear the rental arrears amounting to Rs. 840 from January 1961 upto 31st August 1965."

10. A bare perusal of the aforesaid paragraph 4 shows that an intima tion in unmistakable terms was given regarding the transfer of the house in question to the respondent. Furthermore, paragraphs 6 and 7 make demand of rent and specify not only the rate of rent but also the amount of the rent outstanding. The mere fact that the demand of rent was excessive and was neither in accordance with the rent which was being paid by the appellant to the Custodian Department nor was according to the latest assess ment carried out by the Hyderabad Municipality or any other local authority or that the notice made on averment, which was based on the observations of the Settlement Commissioner, that the appellant was a trespasser, do not make the notice invalid or ineffective. Section 30 of the Act nowhere requires that it must be expressly stated to the notices contemplated by it that they are given under the provisions of the said section or that the transferee acknowledges the occupant to be his tenant. 1 n fact, the consent of the landlord to the occupant being his tenant is not only not necessary but quite irrelevant as the section itself provides that the occupant would be deemed to be tenant of the transferee and thus becomes a statutory tenant. I am accordingly of the view that there is no substance in the first contention of Mr. Akhtar Mahmood and the notice, dated 3-9-1965, is quite valid.

11. I am also of the view that the second contention raised by Mr. Akhtar Mahmood, that the two lower Courts have not exercised their discretion properly in ordering the ejectment of the appellant has no merit. This contention of Mr. Akhtar Mahmood is based on the argument that section 13(2) of the Ordinance i gives a discretion to the Controller to evict a tenant who may be a defaulter, and that in the instant case, the Rent Control ler should not have exercised that discretion in favour of the landlord in view of the conduct in treating the appellant as a .trespasser and filing a civil suit against him for his ejectment. As already pointed out, the respondent considered the appellant to be a trespasser in view of the observations made by the Settlement Commissioner, which have been reproduced in the notice dated 3-9-1965. He appears to have been acting under the mistaken view that these observations had the force of law and on the basis thereof the appellant was to be treated as a trespasser and could be ejected by means of a civil suit. The mere fact that the respondent misunderstood the legal position or acted under wrong legal advice in instituting a suit against the appellant cannot, however, in my opinion, be considered to be adequate circumstances justifying the exercise of discretion in favour of the appellant. The discretion which the Rent Controller has under section 13(2) of the Ordinance has to be exercised prudently in accordance with the judicial norms and not in arbitrary or a capricious manner. It was held in the case reported in Subhan Ali v. Sabhai (P L D 1964 Kar. 206), that an occupant of a house who fails to pay or tender rent or arreas of rent to the transferee of a house for 3 months after receipt of a notice under section 30 of the Act, renders himself liable to be eject ed. In the instant case no attempt was made by the appellant to pay any rent whatsoever to the respondent despite the receipt of the notice, dated 3-9-1965, which in my view is a valid notice, till 15-4-1970, when he sent to the respon dent a money order for Rs. 180 being the rent for the preceding three years at the rate of Rs. 5 per month. This money order was sent much after the ejectment suit was instituted by the respondent against the appellant, which suit was decided on 30-5-1969. Even if it somehow be considered that the appellant had some reason, ground or justification for not paying the rent to respondent on the basis that the respondent was treating him as a trespasser and on the ground had instituted a suit for his ejectment, he should have, on the decision being given in that suit that he was not a trespasser but was entitled to the protection of section 30 of the Act, sent to the respondent the rent due 1 for the house in question. He however, waited for almost a full year there after before sending the money order. This shows that the appellant was deliberately trying to avoid payment of rent and was obviously a defaulter.

12. The appellant also cannot take advantage of the fact that there was dispute as to the amount of monthly rent payable for the house or that the respondent was making an excessive payment of rent. He should have paid to the respondent rent for the house at the rate which he had been paying to the Custodian or in accordance with the latest assessment of the Munici pality or other local authority. By failing to pay any rent to the respondent the appellant became a long standing defaulter and tried to take advantage of his default by offering to the respondent rent for only the three years preceding April 1970, on the ground that the rent for the previous years had become time-barred and was not due. The failure of the appellant to pay the rent that was due from him was clearly a wilful default and has made him liable for ejectment. It has not been shown that the default was due to circumstances beyond the control of the appellant. In the circumstances, I am of the opinion, that the Rent Controller rightly exercised the discretion vested in him to eject the appellant.

13. The result is that the appeal fails and is dismissed with costs. S. Q. Appeal dismissed.