1984 PLP 1016 (CLC)

(a) Civil Procedure Code (V of 1908)‑ (b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑ ‑‑ S. 10(1)(6)‑Civil Procedure Code (V of 1908), S. 115‑‑Evacuee Trust Property‑Shop‑Property sold to bidder in public auction as highest bidder and P. T. D. issued in his favour prior to June Transfer of property made to such bidder, held, lawful and cannot be disturbed. Divisional Evacuee Trust Committee, Karachi v, Muhammad Idree Qureshi and another P L D 1978 Kar. 125 rel. (c) Civil Procedure Code (V of 1908)‑ ‑ S. 115‑Sind Rented Premises Ordinance (XVII of 1979), S. 15‑Revisional jurisdiction‑Claim for delivery of vacant possession by plaintiff applicant‑Respondent admitted to be a statutory tenant of shop‑Plaintiff, held, not entitled to grant of relief for delivery of vacant possession in revisional proceedings as same can be granted by Rent Controller under Sind Rented Premises Ordinance, 1979. (d) Civil Procedure Code (V of 1908)‑ ‑ S. 115‑Sind Rented Premises Ordinance (XVII of 1979), S. 15 Revision‑Arrears of rent‑Claim of petitioner for grant of a decree for arrears of rent prior to filing of suit and for future rent not examined by two Courts below in view of dismissal of suit by such Courts‑Grounds of dismissal having been found erroneous by High Court, orders of Courts below set aside and case remanded to lower appellate Court for decision on issues. Mr. Shahenshah Hussain, Advocate for the respondent has filed statement in writing wherein for the reasons stated therein be has reported no instructions. He has also made request that notice may be issued directly to the respondent. Since, however, the Vakalatnama on behalf of the respondent has not been withdrawn I find no reason to issue notice to the respondent. Mr. Shahenshah Hussain, Advocate after filing the statement ands reporting no instructions has left the Court. I have heard Mr. Abdul Sattar, Advocate for the applicant. By this petition filed under section 115, C. P. C. the petitioner Shamsuddin (since deceased) challenged the judgment and decree passed in Suit No. 78/1968 by the Civil Judge Shahdadpur on 30th July, 1969 whereby the suit for possession of the Shop No. 11‑146 situated in Shahpurchakar was dismissed. He also challenged the judgment and decree, dated 21st August, 1974 passed by the learned District Judge, Sanghar dismissing the Civil Appeal No. 51/1969, filed by him against the above judgment/decree of the learned trial Court.

2. The facts briefly stated are that the petitioner at an auction held by the Settlement Authorities on 17th July, 1960 gave the highest bid for purchase of the above‑mentioned shop. The said bid was confirmed by the Additional Settlement Commissioner, the P. T. D. was issued to the petitioner on 18th October, 1960 and thereafter the P. T. D. was also issued in his favour on 11th April, 1967.

3. Having thus acquired the title to the property the petitioner served a notice on 4th May, 1967 under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 upon the respon dent, the occupant of the said shop, As neither a reply was received from the respondent nor he paid any rent, by notice, dated 18th July, 1967 given under section 106 of Transfer of Property Act, the tenancy of the respondent was terminated. In the circumstances the petitioner filed Suit No. 7811968 in the Court of Civil Judge at Shahdadpur on or about 20th August, 1968 for ejectment of the respondent and delivery of vacant possession of the above‑mentioned shop to the petitioner and a decree for payment of arrears of rent for 3 years and future rent as well. The defendant/ respondent filed his written statement and contested the suit.

4. On the pleadings of the parties the following issues were framed :‑ (a) Whether the applicant (petitioner) was the transferee of the shop in suit ? (b) Whether the relationship of the landlord and tenant existed between the parties ? (c) Whether the tenancy was determined under section 106 of Transfer of Property Act ? (d) Whether the respondent defaulted in payment of rent ? (e) Whether the Court had no jurisdiction to try this suit ? (f) What should the decree be ?

5. After recording the evidence and hearing the Advocates for the parties, the learned trial Court under Issue No. 1 held that the shop in suit was a trust property, it did not come in the compensation pool created under section 4 of Displaced Persons Act and consequently the property could not have been transferred under section 10 of the said Act and, therefore, the Settlement Authorities were not competent to transfer the said shop to the plaintiff/petitioner. It was held that the transfer made in favour of the petitioner was ultra vires. The Issue No. 1 was thus decided against the plaintiff/petitioner. Consequent to the finding given under Issue No. 1 it was held that since the petitioner was not a valid transferee, no relationship of landlord and tenant existed between the parties. Under the Issues Nos. 3 and 4, the learned trial Court held that it was not necessary to give any findings on these issues in view of the findings given under Issues Nos. 1 and

2. Under Issue No. 5, it was held that if the tenancy between the parties would have been established the suit could not have been decreed in favour of the plaintiff/petitioner as it was a simple suit for possession, The Issue was accordingly answered in the negative. In view of the findings given under Issue No. 1, the learned trial Court dismissed the suit with no order as to costs.

6. Against the above judgment and decree, the petitioner/plaintiff filed Civil Appeal No. 51/1969 in the Court of learned District Judge, Sanghar, who concurred with the findings of the trial Court and dismissed the appeal by the judgment and decree passed on 17th August, 1974.

7. Aggrieved by the above‑mentioned judgments and decrees given by the two Courts below the petitioner has now filed this petition under section 151, C. P. C.

8. The learned counsel for the petitioner in support of this petition has raised number of grounds but I find that this petition can be disposed of on the short ground that the P.T.D. in favour of the petitioner having been issued in favour of the petitioner/plaintiff on 11th April, 1967 the transfer of the shop in favour of the petitioner is saved under sec tion 10(1)(b) of the Evacuee Trust Properties (Managment and Disposal) Act No. XIII of 1975 (hereinafter referred to as the said Act of 1975). In order to appreciate the argument advanced it would be relevant to reproduce hereunder section 10(6) which reads as follows :‑ "

10. Validation of certain transfers.‑(1) An immovable evacuee trust property,‑ ... (b) if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968 shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale‑pro ceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool." The above provision of law came up for consideration in case reported as Divisional Evacuee Trusl Committee, Karachi v. Muhammad Idrees Qureshi and another (P L D 1978 Kar. 125 ). In the said case a learned Single Judge of this Court on interpretation of the above‑mentioned section 10(11(b) of the Act No. 13 of 1975 held that the evacuee property transferred by the Settlement Department for which P. T. D. had been issued prior to June, 1968 shall be deemed to have been validly transferred by sale to Chief Settlement Commissioner, and the same cannot be disturbed even if it is held to be Evacuee Trust Property. On the discussion as above finding that the property in question was sold at a public auction held on 17th July, 1960 that the appellant gave the highest bid which was accepted by the Additional Settlement Commissioner, P. T. O. was issued on 18th October, 1960 and thereafter P. T. D. was issued to him on 11th April, 1967, 1 am of the opinion that in the light of the principles laid down in the case of Divisional Trust Committee v. Muhammad 1drees Qureshi and another the transfer of the property in suit made to the petitioner cannot be disturbed.

9. For the reasons stated above this petition succeeds and the impugned judgments and decrees passed by the Courts below are set aside and it is declared that the plaintiff/petitioner is the lawful transferee of the Shop No. II‑146 situated at Shabpurchakar for which P. T. O., dated 18th October, 1960 and P. T. D., dated 11th April, 1967 were issued to him. Since the defendant /respondent is admitted to be the statutory tenant of the shop in question, the plaintiff/applicant is not entitled to the grant of the relief for delivery of vacant possession of the said shop in these; proceedings. The said relief can be granted only by the Court of Rent Controller in proceedings, if any, taken under Rent Laws, presently known as Sind Rented Premises Ordinance of 1979. As regards the relief claimed for grant of a decree for arrears of rent for three years preceding the filing of the suit and for grant of future rent, the same having not been considered by the two Courts below in view of the dismissal of suit on grounds which have been found to bet' erroneous and thus set aside, the case is remanded to the learned lower appellate Court (District Judge, Sanghar) for decision on the issues Nos. 2 to

6. Since the respondent is absent this petition subject to the observations made as above, is allowed but with no order as to costs. M. Y. H. Petition accepted.