P L D 1966 (W (PLP)

3. On 15th February 1962, the appellant brought to the notice of the Controller that there was default on the respondent's part in complying with the order made under section 13(6) of the Ordinance. On this, the Controller struck off the respondent's defence. The respondent's appeal from this order was rejected by the First Appellate Authority, i.e., the District Judge, by order dated 4‑5‑1962. On 28‑5‑1962, the respondent filed Second Appeal No. 28 of 1962 in this Court. An order was made in this appeal on 31‑8‑1962 remanding the case to the Controller with the direction that he should frame and decide a new issue to the effect whether the respondent had failed to comply with the provisions of section 30(3) of the Act. The Controller's order in remand was made on 11‑2‑1963 whereby, it was held that the respondent had complied with this provision of law. On this basis, the Controller dismissed the appellant's application for eviction of the respondent. The appellant's first appeal having been dismissed by the District Judge on 25‑4‑1963, he came to this Court in Second Appeal No. 14 of 1963.

4. The Second Appeal No. 14 of 1963 was heard on 15th June 1964, by my learned brother, Jamil Hussain Rizvi, J., who held that the questions between the parties had not been satisfactorily adjudicated upon by the order of the Controller on remand and, therefore, remanded the case again to the Rent Controller with the direction to record evidence on the two issues which had been framed on 31st October 1961 and to submit the case to the High Court with the evidence so recorded and his opinion thereon.

5. The case thus went again ‑to the Court of the Rent Controller but for the limited purpose of recording evidence on two issues. The appellant applied to the Controller on 22‑8‑1964 for stricking off the respondent's defence on the ground of the alleged defaults in complying with the order under section 13(6) of the Ordinance. The application was rejected by the Controller in September 1964, because in his view, he was not seized of the case which was pending in the High Court and he had merely been directed to record evidence on the two issues which were framed in 1961. The appeal from this order was rejected by the District Judge on 7th September 1964. It is against these two orders that the present appeal is directed.

6. On these facts, the short question which arises for consideration in this case is whether after the second remand of the case by the High Court to the Controller, the latter rightly rejected the appellant's application. I have no hesitation in agreeing with the trial Court and the lower appellate Court that no order under section 13(6) of the Ordinance could be made by either the Controller or the District Judge in First Appeal. Since the filing of Second Appeal No. 14 of 1963, the case has been pending in the High Court. This Court remanded the case to the Controller for the limited purpose of recording evidence on two issues: It could not, therefore, be said that the Controller or the District Judge were seized of the case so as to be competent to make orders for striking off the respondent's defence.

7. On the above conclusion alone, the appeal before me is liable to be dismissed. But the learned counsel for the appellant, Malik Muhammad Ashraf, has contended, on the basis of the Full Bench decision in Muhammad Hussain v. Mehraj Din (P L D 1965 Lah. 179), that the power under section 13(6) of the Ordinance to strike off a defaulting tenant's defence is available to the appellate Courts also. He has urged that the appellant made an application to this Court in the present appeal on 9‑8‑1965 for this purpose and, therefore, I should examine whether the respondent had failed to comply with the order under section 13(6) and, if my finding is in the affirmative, I should make an order striking off the respondent's defence. But this contention raises another question, which is, can action under section 13(6) of the Ordinance be taken without first determining whether the tenant has lost the protection extended to occupants of properties transferred under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 ?

8. The house in question was obtained by the appellant in transfer from the Settlement Authorities. The respondent, therefore, is protected from eviction under section 30(1) of the Act. The material provisions of this section are contained in subsections (1), (3) and'(4) which read as under:‑-- "30.‑(1) Where any person is in possession of any evacuee house, or shop, or has been declared, on or before the twentieth day of December 1958, by a Custodian to have tenancy rights from a date prior to the fourteenth day of August 1947, in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer: Provided that‑

(a) it shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the municipality or local authority, as the case may be, for other properties in the locality generally; and (b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years, and from the industrial concern, cinema house or printing press 'for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknow?ledgment due). (3) Nothing in proviso (b) to subsection (1) shall apply to a tenant‑-- (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 (acknowledgment 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 who, 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 subsection (1), or on the contravention of any of the provisions of subsection (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."

9. The scheme of section 30 of the Act may be summarised as under:‑

(i) On transfer of a property, the tenant or the occupant is to be deemed to be the tenant of the transferee. (ii) Such tenant or occupant cannot be ejected for a period of six years in the case of a house or a shop or for a period of three years in the case of an industrial concern, cinema house or printing press. (iii) Such tenant or occupant looses this protection if‑ (a) he fails to pay the amount of rent or arrears of rent within three months from the date of receipt of the, notice of demand sent by the transferee; which notice is', different from the notice of transfer required to be given under proviso (b) of section 30(1) of the Act: (b) He, after the transfer of the property to the transferee, has sublet or otherwise parted with the possession of the house or shop, etc., or any part thereof, or has committed acts which are destructive of or injurious to the property. (iv) On cessation of this protection the relationship between the transferee and the tenant is to be regulated in accordance with the law applicable to landlords and, tenants.

10. The law which at present is applicable to the relationship between the landlord and tenant is in the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). Section 13 of this Ordinance is material for the purpose of this case. Subsection (1) protects the tenants from eviction except in accordance with the provisions of this section. Under subsection (2), the Controller is empowered to make an order of eviction against the tenant if he is satisfied of the existence of any of the conditions stated therein. These conditions include the tenant's failure to pay rent within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable. Subsection (6) provides that in proceedings under section 13 for the eviction of the tenant, the Controller shall, on the first date of hearing or as soon as possible thereafter and before framing issue, direct the tenant to deposit the arrears due from him and to deposit regularly till the final decision of the case before the fifteenth day of each month, the monthly rent due from him. The Controller is empowered to fix tentatively the amount of arrears and the amount of monthly rent and in case of default by the tenant to comply with the orders made under subsection (6), to strike off his defence and to put the landlord in possession of the property.

11. The question is whether the provisions of section 13 of the Ordinance apply to tenants or occupants of properties transferred under the Act. I am of the opinion that the application of this Ordinance is attracted to such tenants or occupants only if subsections (2) and (3) of the Act have come into operation. It is only when any of the events enumerated in subsection (2) of section 13 of the Act have happened that the general law relating to the relationship of landlord and tenant came be applied. Therefore, before proceeding under the Ordinance or to make any order under section 13 thereof, it will first have to be determined whether there is default on the tenant's part to pay the rent within the period prescribed by clause (i) of subsection (2). A finding to this effect is the condition precedent to confer jurisdic?tion on the Controller to prove under the Ordinance against tenants and occupants of properties under the Act.

12. In the present case, it is to be noted that no final determination has yet been made as to whether the respondent has committed default within the meaning of subsection (2)(i) of section 30 of the Act. This point will be determined in Second Appeal No. 14 of 1963 after the evidence recorded by the Controller on the two issues mentioned above is transmitted to this Court. In the absence of such determination, the appellant is not entitled to apply for proceedings being taken under section 13(6) of the Ordinance. In this view of the matter, it is not possible to accede to the appellant's request that his application for striking off the respondent's defence be considered by this Court in the present appeal.

13. In view of the conclusions I have reached, I am of the opinion that the present appeal and the application under section 13(6) of the Ordinance are not maintainable and are liable to be dismissed. . I order accordingly. The appellant will pay the respondent's costs of these proceedings and the proceedings before the District Judge: S. A. H./S. Q.????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.