1998 PLP 567 (MLD)

(2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant. (3) Nothing in proviso (b) to subsection (1) shall apply to the tenant

(i) who has not within 3 months from the date of receipt of a notice demand sent to him by the transferee by Registered Post (acknowledgement due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer; or (ii) who after the transfer, has subject or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press, or any part thereof, or has committed acts which are destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop, in any urban area within the same town or city, owns a house or shop, as the case may be. (4) On the expiry of the period mentioned in proviso (b) to subsection (1) or on the contravention of any of the provisions of subsection (3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship." A bare reading of this section shows that a person, who is in possession of an evacuee house or shop etc., becomes tenant of transferee on account of deeming expression. Effect of section 30 of the Act, 1958 was examined by apex Court in celebrated case/E.A. Even's case (PLD 1964 SC 536). It was held therein:

"It will be observed that the provisions of the said section are to apply notwithstanding anything contained in any other law' and 'without prejudice to any other right' which a person in possession of an evacuee house may have in that house, shop etc. and under them he is to be deemed to be a tenant of transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer.' It would, thus, appear that this section by its own force created a statutory tenancy in favour of such persons who were in occupation of evacuee premises at the time of their transfer. This statutory tenancy was to be in addition to any other right which they may have in such premises but upon the same terms and conditions upon which they occupied the premises before their transfer. Proviso (b) to subsection (1) further fixes the date from which the statutory tenancy is to commence; namely, where a notice of the transfer has been served on the tenant by the transferee within one month of such transfer by registered post (acknowledgement due) then the tenancy commences from the date of the transfer but under subsection (2) where no such notice is served, then from the date of the receipt of such notice by the tenant. The service of the notice, is, therefore, not merely a formality for acquaint in the tenant of the transfer of the premises nor merely in the nature of a notice of attornment, but it is designed to fit the terminus a quo of the period of protection." The aforesaid view was follows by erstwhile West Pakistan High Court in Muhammad Rizwan v. Ashiq Ali (1966 (W. P.) Quetta 11). After analysis of section 30, this lordship Justice Noorul Arifin summed up his conclusion in the following terms:

"(i) On transfer of a property, the tenant or the occupant is to be deemed to be the tenant of the transferee. (ii) Such tenant or occupant cannot be ejected for a period of six years in the case of a house or a shop or for a period of three years in the case of an industrial concern, cinema house or printing press. (iii) Such tenant or occupant loses this protection if

(a) he fails to pay the amount of rent or arrears of rent within three months from the date of receipt of the notice of demand sent by the transferee which notice is different from the notice of transfer required to be given under proviso (b) of section 30(1) of the Act: (b) He, after the transfer of the property to the transferee, has sublet or otherwise parted with the possession of the house or shop, etc., or any part thereof, or has committed acts which are destructive of or injurious to the property. (iv) On cessation of this protection the relationship between the transferee and the tenant is to be regulated in accordance with the law applicable to landlords and tenants." The same opinion was expressed in Ghulam Rasool v. Ch. Din Muhammad (PLD 1967 Lah. 665), Muhammad Moosa etc. v. Shabbir Ahmad etc. (1984 CLC 3227) and Khuda Dad Khan v. Muhammad Abdul Hannan and others (1980 CLC 500). The view taken in E.A. Even's case (supra) was reiterated in Messrs Khawaja Auto Cars Limited v. Muhammad Yousaf (1991 SCMR 2223).

6. Ratio, deducible from the aforesaid examination, is an under: (i) On the transfer of an evacuee property, the tenant or its occupant becomes tenant of the transferee by deeming expression embodied in section 30 of Act, 1958; that the occupant/tenant in the transferred property becomes tenant of transferee by operation of law. (ii) Such tenants or occupants cannot be ejected for a period of six years in the case of house or shop and for a period of three years in the case of industrial concern, cinema house or printing press. (iii) (a) Such tenant or occupant loses this protection if he fails to pay amount of rent or arrears of the rent within three months from the date of receipt of notice under section 30(1) of Act, 1958. (b) The tenant/occupant, after the transfer of property, sublets or otherwise parted with the possession of the house or shop or any part thereof or commits any act which diminishes the value of the property. (iv) On the expiry of protection, relationship between the transferee and tenant is to be regulated by law applicable to such relationship.

7. Applying the above rules, to the facts of the case in hand, it is quite clear that property in dispute was evacuee property; that it was transferred to respondents as back as 19-8-1966; that respondents issued notice to petitioner under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on 20-8-1979; that the dispute between the respondents and Mst. Bushra, in which neither petitioner was a party nor he had any concern, was decided by the Supreme Court on 26-6-1988. From the above resume of the case, I am in no manner of doubt that the petitioner became tenant to respondent under section 30 of the Act of 1958. In view of this, I find that the finding of two forums below on preliminary question is manifestly correct, just and does, not suffer from any legal or jurisdictional defect. Authorities cited by learned counsel for petitioner are on dissimilar fact and are not applicable to the facts and circumstances of the case in hand.

8. Now I turn to second contention. It is well-settled that where relationship of landlord and tenant is contumaciously denied, it is not necessary to take any further proceedings under section 13 of the Ordinance as defendant e admits default in payment of rent without any reason. See Commissioner of Income Tax, Lahore v. Muhammad Umar Saihgal (PLD. 1975 Lah. 1558), Abdul Khaliq Qureshi v. Saeed Hussain Shah (1979 CLC 118), Makhan Bani v. Haji Abdul Ghani (PLD 1984 SC 17), Muhammad Anwar and 6 others v. Mst. Balqees Bagum (1984 CLC 1506), Muhammad Ismail v. Israr Ahmad (PLD 1961 Lahore 601), Mehdi Hassan v. Ghulam Muhammad (PLD 1964 Lahore 648), Syed Muhammad Ikram Shah v. Ch. Ghulam Nabi (PLD 1967 Lahore 957), Ghulam Rasool v. Ch. Din Muhammad (PLD 1967 Lah. 665), Muhammad Hussain v. Muhammad Bashir (PLJ 1974 Lahore 423), . Nisar Ahmad v. Nazar Muhammad (PLJ 1974 Lahore 505), Muhammad v. Naseer Ahmad (PLD 1976 Lah. 1078), Noorud Din and another v. Muhammad Qasam (PLD 1976 Karachi 921), Sikandar Khan v. Muhammad Ameen (PLJ 1979 Kar. 62), Amroze Khan v. Arbab Muhammad Ghalib (PLD 1980 Pesh. 163), Feroze Khan v. Mst. Meraj Begum'(PLD 1982 Lah. 332), Muhammad Iqbal v. Ata Ullah Nisar (1984 CLC 454), Ishrat Hussain and another v. Subedar alias Suba (1975 SCMR 19), Aman Ullah Khan v. Chotey Khan (1978 SCMR 14), Muhammad Yousaf v. Khalifa Asghar Hussain (1980 SCMR 886) and Hafiz Abdul Majid v. Muhammad Younas (1992 MLD 82).

9. Guided by the above rule, I find that petitioner wasp occupant of rented premises at the time of Partition; that rented premises was transferred to respondents in 1966 and PTD No. 846613 was issued to them on 19-8-1966; that there arose a dispute between one Mst. Bushra and respondents; that the, petitioner took the benefit of that dispute and neither paid rent to Mst. Bushra Bibi nor to the respondents; that petitioner did receive the notice under section 30 of the Act of 1958 on 20-8-1979 but did not mend his ways did not pay rent to transferee; that the apex Court of this country determined the controversy between Mst. Bushra Bibi and respondent on 23-10-1988 and adjudged them as valid transferees that the respondents again issued a notice to him under section 13-A of the Urban Rent Restriction Ordinance, 1959 on C 23-10-1988, but still petitioner did not pay a penny of rent of respondents; that all these circumstances were not controverted by the petitioner in his written statement or anywhere else. Amazingly enough, the petitioner contended that he was neither tenant of Mst. Bushra Bibi nor of respondents nor was liable to pay any rent to any side whatsoever. This is a height of contumaciousness. On the above analysis, I have no option but to hold that the two forums below had correctly applied the equitable rule of forfeiture of tenancy to the facts of case in hand and were correct in saying that there was no necessity to hold further proceedings to determine as to whether petitioner was a wilful defaulter or not. In view of the above, I have no hesitation in corning to conclusion that decision rendered by the two forums below are unexceptionable. As a result of the above discussion, this petition is found to be totally devoid of any merit and is hereby dismissed with costs. A.A./M-537/L Petition dismissed.