P L D 1964 (W (PLP)

Rahim Bakhsh v. Ch. Ahmad Bakhsh and others P L 'D 1964 S C 189 and Abdus Salam v. Waheed‑ud‑din P L D 1963 Lah. 517 mentioned. (i) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15 (4)‑Question of fact, not adjudicated upon by lower Tribunals‑‑Will not be decided in appeal by High Court. Rashid Masud for Appellant. Raja Muhammad Anwar for Respondents. Date of hearing: 5th May 1964. The facts which gave rise to this appeal are: that the respondent Ghulam Muhammad, in his own right and as an attorney of Ali Muhammad, filed a petition on the 1st of February 1963, for the ejectment of the appellant on the grounds that he had committed default in the payment of rent from the 1st of April 1962, to the 31st of December 1963, and that he needed the premises for his personal use. It was alleged therein that the appellant had executed rent deed in their favour on the 14th of March 1961, to pay rent at the rate of Rs. 12 p.m. The appellant in the written statement denied the relationship of landlord and tenant and further alleged that there was no valid power‑of -attorney executed by Ali Muhammad in favour of Ghulam Muhammad to file the petition and that, at any rate, the respon dent could not demand the rent from him at the rate of Rs. 12 p.m. The Rent Controller, by his order, dated the 20th of February 1963, framed a preliminary issue on the question whether there existed any relationship of landlord and tenant between the parties. Ghulam Muhammad appeared as his own witness and produced a copy of the Provisional Transfer Order, dated the 18th of April 1962, attested by an Oath Commissioner. He also proved the rent deed (Exh. P. 2) executed by the appellant on the 14th of March 1961. The appellant, as his own witness, deposed that on the date when he executed the rent deed, the respondent had not been issued the Provisional Transfer Order in respect of the property in his possession. The Rent Controller by his order, dated the 2nd of May 1963, held that the respondents were the landlords of the appellant, and as the appellant committed default in the payment of rent for nine months, he ordered his ejectment. The appellant preferred an appeal which was dismissed by the learned Additional District Judge on the 16th of September 1963. The appellant has come up in second appeal.

2. The learned counsel for the appellant assailed the finding of the lower Courts and contended that it has not been proved by the respondents that there existed any relationship of landlord and tenant between the parties. He admitted the execution of rent deed (Exh. P. 2) dated the 14th of March 1961, but it was argued that the rent deed was executed on the assurance of the respon dents that a P. T. O. had been issued in their favour on the 13th of January 1960, whereas the respondents had not been trans ferred the said portion on that day nor any P. T. O. had been issued in their favour on the 13th of January 1960. This conten tion needs some consideration to which I would be presently referring but for the purposes of the determination of the issue as to the relationship of landlord and tenant, it is sufficient to note that a duplicate of the P. T. O. had, in fact, been issued in favour of the respondents on the 18th of April 1962. It included the portion in possession of the appellant. By the fact that a P. T. O. had been issued, there came into being, by virtue of clause (1) of section 30, a statutory relationship of landlord and tenant between the appellant and the respondents. The respondents were not required to lead any other evidence to establish this relationship. The petition was filed on the 1st of February 1963, at a time when the appellant was a statutory tenant of the respon dents. In Akhtar Ali Parvez v. Altafur Rehman (P L D 1963 Lah. 390), it was held by the Full Bench, "that by a transfer of the property under the Settlement Law the tenancy is created between the transferee and the occupant by the operation of the statute." No exception, therefore, can be taken to the finding that the appellant was the tenant of the respondents.

3. It was next argued that the Rent Controller having decided the issue should have proceeded to decide the case on merits and not that he should have ordered ejectment of the appellant on the ground that he had failed to pay the rent for nine months. It may be noticed that the preliminary issue was framed with a view to deciding whether the Rent Controller could assume the jurisdic tion to pass an order as contemplated in clause (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). The Rent Controller on the first date of hearing or as soon as possible after that date has to direct the tenant to deposit all the rent due from him and also to deposit regularly, till the decision of the case, before the fifth day of each month, the monthly rent due from him. A Rent Controller, there fore, can order a respondent to deposit the rent only in case when either it is admitted that he is the tenant of the petitioner or when having been disputed, it is proved and decided that the respon dent was in fact, the tenant. It is obviously for this purpose that the issue was framed. The issue as held in Akhtar Ali Parvez v. Altafur Rehman was "an issue between the Court itself and the party (the appellant) over whom the Court is asked to exercise the power." It was further held in the said authority: "that a distinction exists between an issue as to the very existence of the authority to adjudicate and those other issues which arise as between the parties and which are to be deter mined by the authority that has the power to resolve them. An issue concerning the very existence of the power to decide, is not an issue between the parties, though the existence of that power may be asserted by one party and denied by the other." The Rent Controller, under the circumstances having decided the preliminary issue on which depended his competency under Ordinance (VI of 1959) should have passed an order under clause (6) of section 13, and taken further steps to frame issues on merit. In Muhammad Ismail v. Israr Ahmad (P L D 1961 Lah. 601) it was observed: "The risk of adopting a false plea of this kind by a tenant is manifest. For example, in an action for eviction for non-payment of rent the tenant will be precluded from pleading and leading evidence to the effect that he was not in default as the pleas that he was not a tenant under the petitioner and that he had been paying rent to him on due dates, will be mutually destructive. I am in respectful agreement with the observation of their Lord ships of the Division Bench. It, however, depends on the facts and circumstances of each case whether further enquiry in a case is called for or not. If a respondent does not deny an allegation made against him that he had failed to pay the rent and alleges, on the other hand, that he was not a tenant of the petitioner, he, of course, cannot be permitted to plead the payment of rent after it is held by the Rent Controller that he is, in fact, the tenant. These pleas in their context will be destructive of each other. He cannot be permitted to raise such pleas on the well‑established principle that no person can be permitted to approbate and reprobate. The present case, however, is not one of that nature) and I am of the opinion that on the decision of the preliminary issue the Courts below could not order the ejectment of the petitioner unless other issues arising in the case were enquired into and decided upon in due course of law.

4. Ghulam Muhammad filed the petition in his own right and as the attorney of his brother Ali Muhammad. He had not filed the original power‑of‑attorney on the record. The appellant had raised an objection about the execution and the validity of the power‑of‑attorney. Ghulam Muhammad could file the petition on behalf of his brother Ali Muhammad only if he, in fact, was his recognised agent. The learned counsel for the respondents contended that the provisions of Order III, rules 1 and 2, Civil Procedure Code, whereby an "appearance, application or act" in or to any Court may be done by a recognised agent of a party, were not applicable to the proceedings before the Rent Controller. Under rule 2 of Order III, C. P. C., before a person can be con sidered to be a recognised agent of a party to appear and act on his behalf, he has to hold a power‑of‑attorney authorising him to make and do such appearances, applications and acts. He relied on Khuda Bakhsh and others v. Fida Hussain and others (P L D 1963 Kar. 446), to contend that proceedings before a Rent Controller should not be judged strictly from the point of view of mere technicalities that are observed in Law Courts. This objection raised by the appellant is a mere technicality. The provisions contained in Order III of the Code of Civil Procedure can be pressed in service in cases arising under Ordinance (VI of 1959). A respon dent can always allege that a petition signed and presented by an authorised person for a, relief under Ordinance (VI of 1959) is not valid by reason of the petition not having been instituted with the approval and authority of the said petitioner. It is the duty of the Rent Controller to decide this question. Since an objection to the validity of power‑of‑attorney was taken, it was for the petitioner to have proved that it had been validly executed by Ali Muhammad. The Rent Controller, under the circum stances, could not order the ejectment unless this matter had been decided by him.

5. There is another objection to the order of ejectment. It is true that the appellant had not paid the rent from the 1st of April 1962, to the 31st of December 1963. He had, however, contended that the petitioner could not validly claim a rent of Rs. 12 p.m. from him. The precise argument on behalf of the appellant is that the respondents being the transferees and the appellant being the occupant of an evacuee property the relation ship between the parties had to be determined in terms of section 30 of Act (XXVIII of 1958). Under the said section, the occupant becomes a tenant of the transferee on the same terms and conditions as to payment of rent on which he held it immediately before transfer. It is, however, lawful for the trans feree to charge a rent on the basis of the latest assessment of the municipality or local authority as the case may be. It was for the respondents, therefore, to show that the rent so claimed was the same which the appellant was liable to pay before transfer or it was in accordance with the latest assessment of municipality or local authority. This question needed determination and if it had been proved that the rent demanded was more than the one which the respondents were entitled to charge, the appellant could in fairness invoke the direction of the Rent Controller in his favour because the non‑payment of the rent by itself does not result in the forfeiture of the tenancy. In the event he holds that a tenant is a defaulter, it does not become obligatory on the part of a Rent. Controller to order his ejectment. He can still take into con sideration the facts and circumstances of the case and notwith standing the default refuse an order of ejectment. In fairness to, the parties, the Rent Controller, therefore, should not ordinarily, order the ejectment on the decision of a preliminary issue. He can, however, minimise the scope of enquiry by examining the parties under Order X, rule 1 by eliciting from them the circum stances which they or any one of them may put‑forth to justify direction of the Rent Controller whether or not to order an ejectment. If the default is proved and there is no dispute as to the rent which the tenant is liable to pay for each month and the tenant is also not able to explain the default on reasonable grounds, the Rcpt Controller can proceed forthwith to order his ejectment.

6. The learned counsel for the respondents relied on rent deed, dated the 14th of March 1961, to contend that the appellant was estopped from taking a position contrary to the contents of the said deed. The tenor of the rent note shows that it was executed on a representation by the respondents that a Provisional Transfer Order had been issued in their favour on the 13th of January 1960. The basis for the rent deed was not an indepen dent contract between the parties. It was founded on the fact that the respondents had been transferred the property. The appellant was entitled to certain protections given in section 30 of Act (XXVIII of 1958). The parties could, undoubtedly, .enter into an agreement but such an agreement could not incor porate any provision contrary to the provisions of section

30. The appellant, therefore, notwithstanding any agreement to the contrary (rent deed), between him and the respondents is entitled to the safeguards and protections afforded to him under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. As held in Moti Chand and others v. Ikram Ullah Khan and others (AIR 1916 PC 59), the protec tion given to him could not be defeated by any ingenuous devices, arrangements or agreement. It was held that `all such devices, arrangements and agreements in contravention of the policy are illegal and void and could not be enforced by the vendee in any Civil Court or in any Court of Revenue. The provisions of the rent deed to the extent they may be proved to be inconsistent with Act (XXVIII of 1958) will be ineffective and without any lawful) authority against the appellant.

7. The learned counsel for the appellant strenuously argued that the appellant was entitled to protection against ejectment for a period of six years under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and this period had not commenced against the appellant for the reason that no registered notice acknowledgment due had been given to him intimating about the transfer. There is no reference to such a notice in the petition. Under Order VI, rule 6, C. P. C., a averment forgiving of such a notice must be implied in the petition. It was for the appellant under Order VIII, rule 2, C. P. C., to have alleged in his written statement the fact of non -service of notice to show that the petition was not maintainable. In re: Sumner v. Harris Calculating Machine Company ((1914) 1 Ch. 920), it was held, that `where a demand for payment to be made at Lloyds Bank was a condition precedent and it was not pleaded that no such demand had been made, Astbury, J., said that he was not at all satisfied that Order XIX, rule 14, did not apply to the case, that the defendants had not given the slightest warning that they were. going to take any such point in the pleadings and that it should have been done if a point of that character was going to be relied on'. In Gates v. Jacobs ((1920) 1 Ch. 567), where there was a question of the service on a lessee of the notice required by section 14 of the Conveyancing Act, 1881, Lawrence, J., held, that `the state ment of claim must be read as if it contained an allegation that the plaintiffs had given the necessary notice under section 14 of the Act before the commencement of the action'. These decisions are, in my opinion, applicable to the present case. It is no longer necessary for the plaintiff to plead the performance of a condition precedent. If the pleadings are silent they must be read as implying an allegation of performance.

8. The learned counsel for the respondents stated that if the appellant had taken this plea of non‑service of notice as required under Order VIII, rule 2, he would have proved the service of notice because, according to him, the notice had, in fact, been given on the 12th of April 1960. The case of the appellant is that even if such a notice be admitted to have been given by the respondents, it could not be deemed to be a valid notice, because this property was included in the P. T. O., only on the 18th of April 1962, and relying on Rahim Bakhsh v. Ch. Ahmad Bakhsh and others (P L D 1964 S C 189) and Abdus Salam v. Waheed‑ud‑din (P L D 1963 Lah.517), it was argued that statutory relationship between the parties came into being from that date, and the respondents, therefore, had to prove a notice subsequent to that. His precise case was that his liability to ejectment under clause (3) of section 30 can arise only if he fails to pay rent within three months from the date of receipt of a notice of demand sent to him by the respondents by a registered post (acknowledgment‑due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer. The contention prima facie is not devoid of force. It was, however, argued by the counsel for the respondents that although the portion of the appellant was transferred to the respondent by the order of the Settlement Commissioner, dated the 4th of January 1961, and was included in the P. T. O. on the 18th of April 1962, it was with effect from the 13th of January 1960. Whether or not it is so and what is its effect has still not' been adjudicated upon. I cannot take upon myself to decide this matter in appeal.

9. In the circumstances of the case, I accept the appeal, set aside the orders of the learned Additional District Judge, dated the 16th of September 1963, and the Rent Controller, dated the 2nd of May 1963, and remand the case to the Rent Controller who should decide the case after framing issues which arise in the case. The parties will bear their own costs. S. Q. Appeal accepted.