1984 PLP 2183 (CLC)

‑‑ S. 13‑A‑Notice, service of‑Plea as to non‑service of notice not taken in memorandum of appeal and question appearing to have not been raised even before appellate Court‑Such plea otherwise not available in view of evidence produced by landlord‑Held, it was not open for tenant to contend that notice under S. 13‑A was not served on him. ‑‑ S. 13‑Transfer of Property Act (IV of 1882), S. 53‑A‑Ejectment, protection of‑Document executed by previous owners neither absolving tenant's liability to pay rent nor his possession over shop in dispute turned into one under alleged agreement Courts below, held, right in not extending principle contained in S.53‑A. This Constitution Petition is directed against the order of ejectment passed by the learned Rent Controller which was also affirmed on appeal by the learned Additional District Judge, Sialkot, vide judgment, dated 22nd February, 1982. The ejectment from the shop in dispute was re sisted by the petitioner‑tenant on the averments that a notice under section 13‑A of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred to as "the Ordinance") was not served and that no relationship of landlord and tenant existed between the parties as Nazir Ahmad and another, the previous owners, had sold the shop in dispute to him prior to the sale in favour of Muhammad Ramzan, respondent, and that since then he is in possession of the same as owner.

2. The shop in question was admittedly owned by Nazir Ahmad and Mst. Inayat Begum, the brother and sister inter se. They sold the shop in dispute in favour of Muhammad Ramzan vide registered sale‑deed dated 24th September, 1978. A notice under section 13‑A of the Ordinance was sent on 11th November, 1978. The service of this notice is, however, disputed before me by the learned counsel for the petitioner. As indi cated above, the petitioner set up sale in his favour on the basis of receipt Exh. R.W. 1/1 alleged to have been executed by Nazir Ahmad after having received a sum of Rs. 10,

000. The execution of this receipt and the agreement to sell the said shop was disputed by the respondent landlord. The learned Rent Controller framed the issue on the question of existence of relationship of landlord and tenant and after recording the evidence of the parties held that the relationship exists and as the non‑payment of the rent is admitted, directed ejectment of the petitioner. On appeal, the learned Appellate Authority affirmed the aforesaid finding of the learned Rent Controller, It was further added that in any cast; the document Exh. R.W. 1/1 did not contain any stipulation exempting the petitioner from the payment of monthly rent of the disputed premises to the owners/landlords and, as such, under the law, he was bound to pay monthly rent to them. The learned Appellate Authority further observed as under "This is an admitted and proved fact that Muhammad Ramzan petitioner‑respondent purchased the disputed premises from its owners through a registered sale‑deed, dated 24th September, 1978, whereafter he served a notice under section 13‑A of the Ordinance V1 of 1959 as amended uptodate upon the appellant requiring him to pay up the monthly rent to him. Muhammad Rafique appel lant as R. W. 3 clearly asserted that he did not pay up the monthly rent to the petitioner‑respondent, because he did not admit him to be the landlord of the disputed premises." (i) that both the impugned orders are liable to be quashed as both the Courts below have not considered the question of non -service of notice under section 13‑A of the Ordinance ; (ii) that the petitioner was entitled to invoke protection of section . 53‑A of the Transfer of Property Act, and (iii) that both the Courts below had exceeded their jurisdiction by making unwarranted criticism respecting the document Exh. R. W. 1/l. Learned counsel further added that the suit for specific performance filed by the petitioner being pending, the Courts of limited jurisdiction should have restrained themselves from making the unwarranted observation and criticism.

3. Having heard the learned counsel for the parties, I am of the considered view that none of the submissions made by the petitioner has any merit. No doubt a plea of non‑service of notice under section 13‑A of the Ordinance was taken in reply filed by the petitioner but the said plea appears not to have been reiterated thereafter. The sole plea pressed before the learned Rent Controller as well before the Appellate Court appears to be that he, having agreed to purchase the disputed shop, is in possession of the same in the capacity of an owner and hence the question of paying or tendering the rent did not arise. The notice as well as its service was otherwise established on the record by the respondent‑land lord by producing evidence. The plea as to non‑service of notice was not taken in the memorandum of appeal and the said question does not appear to have been raised even before the Appellate Court. May be that this plea was not otherwise available in view of the evidence produc ed by the respondent‑landlord on record. Moreover, from the para quoted above of the judgment of the Appellate Court. It appears that the service of notice was taken as an admitted and proved fact. For all these reasons it is not open for the petitioner to contend that notice under section 13‑A of the Ordinance was not served on him, as he resisted the ejectment application on the basis of the receipt Exh. R.W. 1/1. Coming to the next submission, it will be seen that assuming that the document Exh. R.W. 1/l was executed by one of the previous owners, still on the basis of this document, the petitioner cannot invoke the principle contained in section 53‑A of the Transfer of Property Act. Neither be was absolved of his liability to pay the rent nor his possession over the shop in dispute was turned into one under the said alleged arrangement. The learned Courts below were, therefore, right in not extending the principle contained in the said section to the case of the petitioner. As regards the grievance that the document Exh. R. W. 1/1 should have been criticised in the manner that it was done. Suffice it to say, that the petitioner having himself relied on the said document the Courts had to deal with the same. It is true that the observations made are for the purpose of disposing the case before these Courts and that the suit filed by the petitioner will be decided on its own merits and on the basis of the evidence produced by the parties in the said suit.

4. The upshot of the above discussion is that this petition is without merit and the same is dismissed with costs. The petitioner is given two months' time to vacate the shop in dispute. M. B. A. Petition dismissed.