1983 PLP 1130 (CLC)

2. Immediately on receipt of this notice and within the period stipulated by section 30 of D. P. Act of 1958 rent for 38 months i. e. for the period from March, 1970 to April, 1973 was sent by money order on 30th April, 1973. The money order receipt has been produced and marked Exh. 25 while the coupon thereof returned as refused, was produced as Exh.

40. The appellant thereafter sent by money order (Exh. 41) rent for May and June, 1973. On ‑16th June, 1973 rent for month of July, 1973 was also sent by Money' Order (Exh. 42). All these money orders are found to have been refused by the respondent.

3. The respondent on 27th July, 1973 filed application under section 13 of the then West Pakistan Urban Rent‑ Restriction Ordinance of 1959 in the Court of the Rent Controller, Moro, which was registered as Rent Application No, 5 of 1973. The ease. was contested by the appellants.

4. On the pleadings of the parties the learned Rent Controller framed the following issues :‑ (a) Whether the opponent No. 1 or both opponents have committed default in payment of rent ? (b) Whether opponent No. 1 has put in possession opponent No. 2 in a portion of the disputed house or sublet the portion to him ? If so, what is its effect ? (c) What should the decree be ? Subsequently on 13th March, 1974 the following additional issue was also framed "Whether statutory notice, under section 30, Displaced Persons Act, 1958, is bad in law ?"

5. At the trial the respondent landlord examined himself as Exh. 21 and also produced one Juma Exh.

32. On behalf of the appellants, Allah Wassayo Appellant No. 2 was examined as Exh. 38 and another witness Muhammad Suleman Exh. 43 was also examined. The learned Rent Controller by order passed on 24th April, 1974 under Issue No. 1 held that the appellant had committed default m payment of rent and under Issue No. 2 finding was given that the appellant No. 1 had put the appellant No. 2 in possession of tire portion of the house. without consent of the respondent (landlord) and under the "additional issue" the learned Rent Controller held that the notice under section 30 of the D. P. Act, 1958 was not invalid for the reason that copies. of P. T. O. and P. T. D. had not, been supplied to the appellants. On the findings so reached the learned Controller allowed the ejectment application and ordered the eviction of the appellants.

6. Rent Appeal No. 32 of 1974 was filed which was heard by the Additional District Judge, who also gave the finding that the appellants were defaulters in payment of rent and that appellant No. 1 was statutory tenant of the respondent and thus the plea of the respondent to the effect that appellant No. 1 had sublet the portion of his house to the appellant No. 2 without consent of the landlord was held to have been proved. On the findings so reached the appeal was dismissed, Mr. G. M. Qureshi the learned counsel for the appellants on the issue relating to the alleged default in payment of rent by the appellants, submitted that on receipt of the notice Exh. 28 and Exh. 30 (under section 30, D. P. Act of 1958) by the two appellants (text of which have already been reproduced above) whereby the respondent demanded payment arrears of rent as well as future rent from both the appellants at the rate of Rs. 2,50 per month, fixed by the Custodian containing a warning that in case of failure of compliance legal action would be taken against within the prescribed period by the law, rent for 38 months was immediately sent by the appellants. The learned counsel for appellants further submitted that rent was duly sent by money order Exh.

40. It is not disputed that rent was validly tendered. According to learned counsel the appellant in the circumstances could not be penalised for refusal on the part of the respon dent to accept the rent thus sent by Money Order. The learned Counsel further pointed out that rent was sent for the period from March, 1970 to April, 1973 in compliance with the demand vide notice given under section 30 on 26th March, 1973 by the respondent whereby both the appellants had been called upon to pay the arrears of rent and future rent at the rate of Rs. 2.50 per month. The learned counsel for the appellants further submitted that it was erroneously held by the two Courts below that the appellants were not justified to have sent the rent for only 38 months (or for three years) on the plea that the claim for the period prior thereto was barred by time. According to the learned counsel it was not correct to say as held by the two Courts below that in order to get relief against forfeiture of tenancy for non‑payment of rent it was obligatory upon the part of the appellants to have remitted the entire arrears of rent from 11th July, 1966 irrespective of the fact that the claim was barred by time.

8. The argument of the learned counsel for the respondent however was that under section 30 of the D. P. Act, 1958 protection would not be available to a tenant who had not within three months from the date of the receipt of notice of demand of rent by the transferee paid or tendered amount of rent or arrears of rent due for any period after the transfer, as laid down in that section itself. It was argued that the time‑barred amount was also amount due and therefore the remittance of rent for only 38 months and failure to remit the rent for the earlier period (though barred by time) was not a valid tender of rent due.

9. In the first instance I would like to point out that the two Courts below acted erroneously and against law in applying the principles governing forfeiture of tenancy for non‑payment of rent under the provisions of T. P. Act to the proceedings for eviction under section 13 of the then westl1 Pakistan Urban Rent Restriction Ordinance, 1959. The principle governing, forfeiture of lease and those applicable to grant of relief against forfeiture as laid down by Transfer of Property Act have no application to the cases) governed by the Ordinance of 1959. Reference may be made it necessary to the case Asar Brothers v. Holy Trinity Church Trust (P L 0 1971 S C 700). As regards the other argument advanced by the learned counsel that the appellants ought to have tendered the entire amount of arrears grant due irrespective of the fact that part of the amount of arrears had become barred by time it would suffice to refer to the authoritative pronounce ment of the Honurable Supreme Court of Pakistan in the case of Ashfaq ur‑Rehman v. Chaudhri Muhammed Afial (P L D 1968 S C 230). While interpreting the term all "rent due" within the meaning of section 13 (6) of the Ordinance of 1959, the Honourable Supreme Court observed :‑ "Though the word "lawfully" is not added to "all the "rent due" in section 13 (6) yet the effect remains the same. When rent is sought to be recovered by a legal process be it before a Court or a tribunal the word `due' would carry the connotation of "due in law" or recoverable in an action at law." The learned Supreme Court further proceeded to hold :‑ "No evidence of such an intention is seen in the Ordinance and it would be legitimate to interpret the words: "all the rent due" as the rent lawfully , due. On the contrary if the interpretation placed on the words by the Courts below is to prevail, anomalous results would follow."

10. In the light of the above discussion I am ref the opinion that the( two Courts below acted against law laid down by the Honourable Supreme By Court in applying the principle of forfeiture as laid down in 'F. P. Act and, thus holding that before tenant could claim relief against forfeiture of his tenancy rights he ought to have remitted or tendered the arrears of rent including the amount which had become time‑barred. Relying upon the principle laid down by the Honourable Supreme Court in the case of Ashfaq ur‑Rehman the words 'rent due' for any period after the transfer could not be given any meaning other than `rent due' in law or recoverable in an action at law. Accordingly the rent tendered by the appellants by money order sent on 30th April, 1973 for 38 months from March, 1970 to April, 1973 on receipt of notice dated 26th March, 1979 under section 30: was a valid tender. . In the circumstances the appellants could‑ not be considered as defaulters in payment of rent within the meaning of section 13 (2) (i) of the Ordinance of 1959.

11. As regards the plea of alleged subletting of the portion of the house in question by the appellant No. 1 to the appellant No. 2 without the permission of the landlord, I would like first refer to the notice on 26th March, 1973 (Exh. 28) and (Exh. 30) referred to above wherein the respon dent had expressly admitted the joint possession of the house in dispute by the appellants, and whereby he further had called upon both the appellants to pay him rent of the said house at the rate of Rs. 2.50 per month. He demanded arrears of rent from the date of the P. T. D. upto November, 1973 and future rent as well jointly from both the appellants. It is significant to note here that pursuant to this demand made by the respon dent, the appellants did send the rent which however was refused not on the ground that it was tendered by person persons other than the tenant but on the ground that it was not tender of rent for the entire period (including time‑barred claim but and it was only for a period of 38 months. Another important factor to be taken note of is that in para. 6 of the ejectment application the respondent has expressly stated as follows :‑ "The petitioner sent copies of P. T. O. and P. T. D. also alongwith the notices, and he again intimated them that he has purchased the said house and demanded rent from them" ("i. e. appellants)." In the face of the above statement in the application itself as well as the demand made in notices under section 30 (Exh. 28 and Exh. 30) it hardly lies in the mouth of the respondent to claim that the appellant No. 2 was a sub‑tenant of the appellant No. 1 or that he was occupying any portion of the house in his possession without the written permission of the landlord. Apart from the above facts perusal of the evidence led in the case reveal that there is nothing like subletting or parting with possession of the property in any manner whatsoever by the appellant No. 1 in favour of appellant No. 2 as alleged. We have already noted above that the respon dent landlord had examined himself as Exh. 21 and had also produced one Juno as his witness. The evidence of the respondent/landlord (Exh. 21) shows that he had not said a single word in his entire deposition in support of his allegation that the appellant No. 1 sublet the premises to the appel lant No. 2 or that without his written consent the appellant No. 1 sublet the entire building or any portion thereof to the appellant No.

2. On the contrary the facts which have emerged from the evidence are that the appel lant No. 2 is married to the only daughter of the appellant No. 1 and that he is residing with the appellant No. 1 since his marriage as member of the family. The residence of the appellant No. 2 with his wife in the circumstances in the house of her father in no manner can be treated as a Subletting or parting with the possession of the house or any portion hereof. I may also note here the fact that Allah Wasayo appellant No. 2 who was examined as Exh. 38 had deposed that he is married to the daughter of the appellant No.

1. However not a single question in,the cross‑examination was put or suggested that any portion of the property has been parted with by the appellant No. 1 or that appellant No. 2 was a sub‑tenant of appellant No.

1. Significant to note is also the fact that in the application filed under section 13 there is no plea that any portion of the property has been parte with or was sublet unauthorisedly and without the consent of the landlord by the appellant No.

1. The findings of the two Courts below to the effect that the property or portion thereof has been sublet by the appellant No. 1 to his son‑in‑law in the circumstances are against the law perverse and liable to be set aside as based upon no evidence.

12. For the reasons stated above this appeal succeeds. The impugned orders passed by the two Courts below are set aside and the appeal is allowed. There shall however be no order as to costs. M. Y. H.