1979 PLP 745 (CLC)

S. 30(l)(a)-Respondent paying rent to department @ Rs. 3 per mensem-Respondent under cl. (a) to subsection (1) entitled to charge rent according to such assessment from date he gave notice but not prior to that-Appellant not knowing before receipt of notice whether transferee would receive rent in future at old rate or according to latest assessment, held, bound to pay rent accord ing to latest assessment for period- of he was served with notice of demand.-[Notice]. Malik Abdul Aziz v. West Pakistan Publishing Company P L D 1965 Lah. 82 ; Mian Rahmat Ali v. Khadeja Hakim P L D 1967 Lah. 29; Muhammad hlusa v. Mistri Dilshad Muhammad etc. P L D 1968 Lab. 252 and Nizam Din v. Mst. Nawab Bibi P L D 1970 Lah. 923 ref. Arnjad Hussain Syed for Appellant. Mushtaq Raj for Respondent. This second appeal arises from the order dated 18-6-1973 passed by the learned Rent Controller. Wazirabad and confirmed by the learned District Judge, Gujranwala, dated 13-5-1974. As the facts have been given exhaustively by the two Courts of fact they may not be recapitulated in this judgment. 2. The points which have been argued before me are that the ejectment petition was premature inasmuch as it was filed before the expiry of three months from the date of the second notice given under section 30 of the Displaced Persons (Compensation and Rehibilitation) Act whereby rent was claimed at the rate of Rs. 7.02 and that since the appellant after the receipt of notice offered rent at the rate of Rs. 3 for the period, prior . to the date of the notice he was not a defaulter. 3. So far as the first point is concerned, it is necessary to mention that previous notice in dispute a notice was given under section 30 of the Act claiming rent at Rs. 10 p. m. Since the rate of rent claimed in that notice was in excess of the rate of rent fixed according to the latest assessment, the respondent felt the necessity of sending the second notice. This point was raised before the learned District Judge in appeal and since it was a legal point it was entertained even though it was not raised before the learned Rent Controller or in the grounds of appeal. The learned District Judge has treated the ejectment petition as not premature on two grounds, firstly that this objection was not raised in the written-statement nor in the memorandum of appeal and secondly that the notice dated 15-7-1971 was in continuation of the first notice dated 7-4-1971. The reasons given by the learned District Judge do not appear to be sound and convincing. The date of the ejectment petition was known as it was given on it and the date of the notice was also known as it was an admitted fact, therefore, only a legal point was for consideration before the learned District Judge whether under the circumstance the ejectment petition was premature or not. The reason given that the second notice was in continu ation of the first notice is not forceful, firstly, because the period of three months had elapsed to the first notice when the second notice was given and secondly that since the rate of rent according to the latest assessment was not claimed in the first notice and was in excess of the rent fixed by the latest assessment, it was not a proper notice and was to be followed by another notice. If the tenant had paid rent not at the rate of Rs. 10 in compliance with the first notice but at the rate of Rs. 7.02 according to the latest assessment he could not have been treated as a defaulter. 4. Learned counsel for the respondent has raised a new point which is, no doubt, interesting but is without force. He says that subsection (4) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act does not provide that if rent is not. paid within three months of the date of the service of notice, the tenant will be treated to have committed default in payment of rent but rather. according to the said subsection (4) relation ship of landlord and tenant between the transferee and the tenant is to be regulated in accordance with the law for the time being in force relating to such relationship 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) which ever is earlier. He has further argued that the word default occurs in section 13 of the Rent Restriction Ordinance of 1959. According to him subsection (4) of section 30 is to be looked into only to see if the ordinary law has become applicable and that in order to see whether default has been committed or not section 13 of the Rent Restriction Ordinance shall have to be looked into. This is true that subsection (4) of section 30 does not say that on the contravention of any of the provisions of subsection (3) the tenant will be elected but at the same time it cannot be said that subsection (4) overrides subsection (3). Clause (b) to proviso to subsection (1) of section 30 states that the transferee shall not eject the occupants for a period of six years and subsection (3) who not within 3 months from the date of receipt of a notice of demand sent to him by the transferee by registered post, paid or tendered the amount of rent or arrears of rent due for any period after the transfer. So, the matter comes to this that if a tenant has paid rent within three months of the receipt of the notice of demand, he cannot be ejected for six years but he can be ejected if he fails to pay rent within the. said period. No doubt, the word "default" is riot used in section 30, but whatever is mentioned in clause .(1) of subsection (3) of section 30 amounts to a default if rent is B not paid within three months from the receipt of notice. A question arises if a tenant has not paid rent or arrears of rent due for any period after the transfer within three months of the receipt of notice who can eject him. Subsection (4) in this respect provides if contravention is made by the tenant by not paying rent within three months of the receipt of notice, the relationship of landlord and tenant between the parties shall be regulated in accordance with the law for the time being in force, i. e. by the Rent Restriction Ordinance. So, the net result is that if default is committed by not paying rent from the receipt of notice and thus contravention of the provisions of subsection (3) has been made the Rent Controller under section 13 of the Rent Restriction Ordinance will hear the case and if found that in reality the, default has been committed will -C pass an ejectment order. If the argument of the learned counsel for the respondent is minutely considered it rather goes against his client. According to subsection (4) relationship of landlord and tenant is regulated m accordance with the law for the time being in force if contravention of subsection (3) takes place, but not otherwise, meaning that if the period of three months has not elapsed it would not be said that the provision of subsection (3) has been violated and thus Rent Restriction Ordinance would not become operative with the result that the learned Rent Controller would not have jurisdiction. In the present case as the petition was brought before the expiry of three months from the receipt of second notice, the provisions of subsection (3) till then had not been violated by the appellant. So not only that the ejectment petition was premature, but the learned Rent Controller had no jurisdiction since till that time the law for the time being in force relating to the relationship of landlord and tenant had not become operative. 5. There is force in the arguments of the learned counsel for the appellant that the respondent was not Justified in refusing rent tendered to him at the rate of Rs. 3 p.m. for the period prior to the receipt of notice. Subsec tion (1) of section 30 of the Displaced Persons (Compensation and Reha bilitation) Act clearly states that the occupant will be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which lie was already holding the property immediately before the transfer. Before the second notice was given the rent was being paid by the appellant to the department at the rate of Rs. 3 p.m., so on the p transfer of the property to the respondent the rate of rent was Rs. 3 p.m. The respondent under clause (a) to proviso to subsection (1) of section 30 become entitled to charge rent according to the latest assessment from the date on which he gave the notice but not prior to that. The appellant did not know before he received the notice, whether the transferee would like to receive rent from him in future at the old rate or according to the latest assessment. Therefore he was bound to pay rcpt according to the latest assessment only for the period after he was served with the notice of demand. Malik Abdul Aziz v. West Pakistan Publishing Company (P L D 1965 Lah. 82), Mian Rahmat Ali v. Khadeja Hukim (P L D 1967 Lah. 29), Muhammad Musa v. Mistri Dilshad Muhammad etc. (P L D 1968 Lah. 252) and Nizam Din v. Mst. Nawab Bibi (P L D 1970 Lah. 923), may be cited with great advantage in this behalf. 6. As a result of the observations made above. I accept the appeal and setting aside the orders of the Courts below, dismiss the application for ejectment. M. A. K. Appeal accepted.