1980 PLP 500 (CLC)

(i) who has not within three months from the date of receipt of a notice of 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 sublet 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 subsec tion (1) or on the contravention of any of the provisions of sub section (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."

7. Subsection (1) makes it clear that tenancy between the transferee and the occupant is created by the factum of the transfer. The moment property in the Pool is transferred, the occupant becomes tenant of the transferee by operation of the law and the notice contemplated in proviso to this subsection has nothing to do with the creation of this relationship. The notice, however, is relevant for the purpose of computing the period o protection provided in proviso (b). If the notice is served within a month of the transfer, the period would commence from the date of transfer, but in the notice is served later, then from the date of receipt of such notice.

8. Section 30 of the Displaced Persons (Compensation and Rehabilita tion) Act, in fact, contemplates two notices, one under proviso (b) to sub section (1) intimating the factum of the transfer and the other under clause (i) to subsection (3) incorporating a demand of rent. Both the notices can be combined in one, as has been done in the instant case. Notwithstanding the protection of six years, the tenant will, however, be liable to ejectment under subsection (3) if he (i) defaults in the payment of rent within three months c of the date of receipt of the notice "sent to him by the transferee by registered post (acknowledgement due)", or (ii) has sublet or otherwise parted with the possession of the house, or (iii) has committed acts which are destructive of or injurious to the property.

9. The contention is that as the tenant had paid rent then due within three months of the receipt of the notice, his ejectment could not be ordered on account of a future default in payment of rents, until the expiry of the period of the protection, unless a fresh notice by registered post (acknowledgement due) had again been served on him. In other words, once rents had been paid within the period of three months from the receipt of the initial notice, the landlord, it is submitted, was required to serve a fresh notice in the same manner for any and every subsequent default to enable the tenant to clear the dues within three months from the receipt of such subsequent notice before the landlord could apply for ejectment. Such question had arisen in Jiando Khan v. Hakim Muhammad lshaq (P L D 1964 Kar. 61) in which a learned Single Judge had expressed the view that "The notice of demand contemplated in clause (i) of subsection (3) is only one notice for the arrears relating to the period after the transfer, and does not appear to me to relate to every successive default. It is clear that the intention of the Legislature was to provide for allowing a reasonable time to the tenants to clear the arrears of rent accruing in favour of the transfer, and not to so materially alter the relation ship of landlord and tenant that even in cases of monthly tenancies every time a default accrues, a notice of three months has to be given." The Supreme Court in E. A. Evans v. Muhammad Ashraf (P L D 1964 S C 536) bad referred to this authority and had laid down the same principle of ruling that : "It is, of course, possible that both these notices may be combined into one, as, for example the same notice while giving intimation of the transfer might also demand the rent and or arrears of rent, if any, due for any period after the transfer. But where no such combined notice has been issued, it would, in order to take a tenant out of the protection from eviction granted to him by proviso (b), be necessary to serve upon him a second notice of demand as contemplated by clause (i) of subsection (P L D 1965 Lah.82). It may not be necessary to serve such a notice of demand each time there is a default but, at any rate, at least one notice of demand has of necessity to be served to deprive the tenant of the protection."

10. In Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. (3) a Division Bench had, however, expressed a contrary view in the words "On the contrary, if after the notice, the tenant has paid the rent, the landlord is left with no cause of action to proceed against the tenant under Ordinance VI of 1959. If subsequent to this, a default is committed by the tenant, the landlord again must give him a notice because if he does not do so and files a petition, the petition is liable to be dismissed on the ground of lack of jurisdiction for the reason that the Rent Controller under the ordinary law can assume jurisdiction in such cases only if it is proved that the provisions of section 30 (3) (i) have been contravened." 1t may be noted that although this case had been decided on 15-7-1964, yet it makes no mention of E. A. Evans's case decided on 14-5-1964 or even of Jiando Khan's case decided on 1-6-1963 which both had preceded it. The view taken in Malik Abdul Aziz's case was, however, dissented from in Saeed Ahmad v. Mst. Zait-un-Nissa (P L D 1967 Lah. 196.) where a learned Single Judge followed the authority in E. A. Evans's case, observing "I feel bound by the dictum of their Lordships of the Supreme Court in E. A. Evans v. Muhammad Ashraf and without entering into the controversy raised in the Full Bench decision A. M. Khan Leghari v. Government of Pakistan P L D 1965 Lah. 214 1 hold that no second notice of demand under section 30 of Act XXVIII of 1958, was necessary in the case.

11. The matter came up again before a Division Bench of the Sind High Court in Afaquz Zubair v. Muhammad 1dris (P L D 1978 Kar. 984). The Bench came to the view that the opinion expressed by the Supreme Court in E. A. Evan's case "was explicitly tentative and the true interpretation of clause (1) of subsection (3) of section 30 of the Act was left open". The reasoning was "This is clear from the use of the word `may' and the words `at any rate, at least one notice of demand' in the underlined portion of the observations. At the end of the quotation once again their Lordships have used the words `one notice of demand is at least necessary for the protection to be lost'. The word `may' imports possibility but cannot be deemed to express absolute opinion. Similarly `at least' means at all events or even if a wider statement is disputable or it means at the lowest computation. Having regard to the language used by their Lordships the clear import of the observations is that their Lordships did not rule out possibility of the interpretation to the effect that more than one notice of demand may be necessary in case of successive defaults by a statutory tenant." The Division Bench, therefore, disagreed with the view taken in Saeed Ahmad's case and followed the one in the aforecited case of Malik Abdul Aziz in coming to the following conclusion that :- "Unless, therefore, a fresh notice of demand was served by the landlord and default was committed by the respondent in the payment of arrears within 3 months from the date of receipt of such notice, obviously the condition precedent for bringing the case within the ambit of normal law could not be fulfilled."

12. The Division Bench had also relied on Muhammad Amin v. Jamshed Ali (P L D 1967 Lah. 8876) though the point in this cited case was not whether a fresh notice in respect of a subsequent default is necessary but whether the question of payment of rent within 3 months of the notice is to be decided as a prelimi nary issue before assumption of jurisdiction by the Controller. Here in an ejectment petition brought on the ground, inter alia, that the tenant had defaulted in payment of rent for more than two months after receipt of notice under section 30, an order for deposit of rent had been passed under sec tion 13(6) of the Ordinance by the Controller and while the order was subject matter of appeal in the High Court, the tenant's defence wan struck out for non-compliance of the order. It was held "The position which emerges from the foregoing discussion is that before ordering action under section 13(6) of the Ordinance it was incumbent upon the learned Rent Controller to determine whether the appellant had committed a default in the payment of the arrears of rent in terms of clause (i) of subsection (3) of section 30 of the Act. If be comes to the conclusion that there has been default on the part of the tenant, he can then assume jurisdiction to deal with the case under the various provisions of the Ordinance." In reaching the' above conclusion, the learned Judges had approved the authorities in Muhammad Shoji v. Abdul Hayee (P L D 1965 Lah. 681) and Muhammad Rizwan v. Ashiq All (P L D 1966 Quetta 11). In the former, it had been held "He (the Controller) could have jurisdiction only if it was proved that the transferee had given a notice and the tenant had failed to pay or tender the amount of rent within three months. The Rent Controller had, therefore, to determine this issue before he could direct payment under clause (6) of section 13." In the second authority it had been held "The application of the Ordinance is directed to such tenants or occupants only if subsections (2) and l3) of section 30 of the Act have come into operation. It is only when any of the events enumerate in subsec tion (2) (sic) of section 30 of the Act rave happened that the general law relating to the relationship of landlord and tenant can be applied "

13. Muhammad Amin's case therefore makes it clear that proof of service of the notice under section 30 is not enough to confer jurisdiction on the Controller and that useless the default in payment of rent within three months of the notice has also be proved as a jurisdictional fact, the ordinary law could not apply and the Controller could not assume jurisdiction, The ruling Muhammad Amin s had been followed in Nizarn Din v. Nawab Bibi (P L D 1970 Lah. 923) and it had been observed : "Before assuming the jurisdiction, the learned Rent Controller was required to record his finding as to whether the tenant had in fact failed to pay or tender the rent within the period prescribed by clause (i) of subsection (3) of section 30 of the Act." These authorities, however, seem to go contrary to an earlier Pull Bench decision in Akhrar Ali Parver v. Altajur Rehman (P L D 1963 Lah. 390) where the tenant's ejectment had been sought on the ground of default in payment of rent in response to the notice and on account of damage to the property and although the tenant had challenged the notice as -being unsigned and had denied the receipt of any notice of demand and bad also denied the allegation of damage, the Controller hail, before proceeding ire the matter, passed an order of deposit of rent. On the tenants failure to comply, his defence had been struck out and his ejectment ordered. The contention that the Controller should have determined the question of service of notice as a preliminary issue before ordering deposit of rent was .not accepted. The Full Bench did not find any fault with the order and dismissed the appeal with the observation "His defence was struck off after the full period of three months and another two and a half months had gone by."

14. Section 30 has provided the tenant a protection for six years from ejectment except on the three grounds enumerated therein. It reiterates that within the period of the protection the law for the time being governing the relationship of landlord and tenant between the transferee and the tenant shall not apply unless any .rtf the grounds specific exists. If the ruling that a fresh notice is not required for a subsequent default is to be followed then there is no yardstick by which to apply the first disqualification, that is default in payment of rent within three months from the date of receipt of "a" notice of demand. It is difficult to visualize how in the absence of such a notice, a subsequent default can be dealt with unless eve invoke the ordinary law but that cannot be done during the period of the protection of six years. Again, if we follow the dictum in Muhammad Amin's case that the question of default in payment of rent within three months of the notice is to be decided as a preliminary issue, then the other two disqualifications, namely, subletting and causing damage to the property, which cannot but be treated, for the purpose, to he par with the one of non-payment of rent within three months of the not ought also to be determined as a jurisdic tional fact by framing a preliminary issue and until, such issue has been found, no order of rent can be passed. This would in other words mean that the provision of section 13(6) cannot be invoked within the period of the protection unless party of the three contraventions, leading to a forfeiture of the protection, had been fully established. In this view of the law, the question of passing an order under section 13(6) can hardly arise for in the event of day of the contraventions as having proved, the tenant's ejectment has to follow while in the contrary event, the landlord's application for ejectment has to he dismissed. No tribal issues would remain thereafter. On the other band, if the breaches are to be tried not as preliminary issues but as merit issues, then an order under section 13(6) has to be passed first. This would, in the event of a non-compliance of the order, entail the striking out of the tenant's defence and his ejectment, before an actual proof of a breach of any of the conditions under section 30 which alone could deprive the tenant of his protection ass yet cane on record. Can it be said that ejectment of the tenant for non-compliance of order made under section 13(6) of the Ordinance without proof of any of the contraventions is contemplated by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, which rules it the applicability of the ordinary- law within the period of the protection except upon proof of such contravention.

15. I have, therefore, grave doubt in my mind that during the period ref the protection the question of a subsequent default can be dealt wit under the ordinary law without insisting upon proof in strict terms of clause (1) of subsection (3) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act or that the provision of section 13(6) of the ordinary law can be invoked without first requiring proof of a violation of one of the conditions of section 30(3). However, 1 must dispose of the matter in hand in the light of superior and binding authorities available in the field. I must first hold, on the author it of Evan's case that a fresh not is not required for a subsequent default. This will mean that the question of a subsequent default will be dealt with under the ordinary law even during the period of the protection initially a notice under section 30 had been served and rents had been tendered within three months' thereof. I also hold by implication of the authority of Ghulam Hassan v. Muhammad Hayat (P L D 1971 S C 573) that a direction to deposit rent can be made pending adjudication on the question of tenant having incurred any of the disqualifications. In this cited case, although the ejectment application had been contested on the ground that the Controller had no jurisdiction as the property was Evacuee Trust Property land that the notice sent was not valid, the Controller had made an order for deposit of rent and after resolving the question of quantum of the rent payable, the Supreme Court had directed the Controller to make a fresh order for deposit of arrears of rent at the rate of Rs. 50 p. m. as required by sec tion 13(6). No direction had been giver: tab the Controller t:) decide, before passing the order of deposit of rent, the question of default in payment of rent which had been one of the grounds before him for reeking the ejectment

16. The appeal, therefore, fails and is accordingly dismissed with no order as to costs. M. A. K Appeal dismissed.