1980 PLP 1454 (CLC)

S. 13-Ejectment-Appellant-tenant's plea as to his objection with regard to wrong description of property given in ejectment application by landlord-respondent being not decided by- Rent Controller-Appellant neither alleging in his reply to ejectment application as to portion of property sought to be ejected having belonged to him nor pleading relationship of landlord and tenant having not existed between parties in respect of entire property involved in ejectment proceedings-Plea of appellant relating to description of property, to circumstances, held, of little consequence. Noor Hussain Chaudhary for Petitioner. This second appeal is directed against an order for the ejectment of the appellant, Muhammad Din, from a shop. 2. The shop in dispute was transferred to one Nazir Ahmed, under the Displaced Persons (Compensation and Rehabilitation) Act, ' 1958, hereinafter referred to as the said Act. At the time of its'' transfer, the appellant, Muhammad Din, was in possession of the shop and, thus, be became a statutory tenant under its transferee. by virtue of the provisions of section 30, of the said Act. After sometime, the said Nazir Ahmed sold the shop to the respondent, Shaukat Ali. It was on an application filed by Shaukat Ali that the order of eviction was made against the appellant. In the application, as originally filed by the respondent ; he had asked for the vacation of the shop on the ground of personal need. The application was resisted by the appellant on various grounds. On 13th May. 1975, the Rent Controller who was seized of. the ejectment proceedings, made an order, under subsection (6) of section 13 of. the West Pakistan Urban Rent Restriction Ordnance, 1959, hereinafter referred to as the said Ordinance, directing the appellant to deposit arrears of rent for four months as also future monthly rent for each month before the 15th day of the next month. The appellant did not deposit :he monthly rent in time. . The respondent, therefore, made an applica tion for striking off his defence and ordering his ejectment. His plea, which Was opposed by the appellant, found favour with the learned Rent Controller with the result that he struck off the defence of the appellant and directed him to vacate the shop in question. On this. the appellant went in appeal before the Additional District Judge but in vain. Hence this second appeal by him. 3. Learned counsel for the appellant contended that the application or ejectment of the respondent was premature inasmuch as the respon dent had served notice, under paragraph (b) of the proviso to subsection (1) of section 30, of the said Act, on the appellant on 23rd November, 1974 but had taken out ejectment proceedings on 6th March, 1975, on the ground of personal need, before the expiration of six years after the service of notice. 1 am unable to agree with the learned counsel. The record reveals that initially the respondent had filed ejectment proceedings against the appellant alleging that the disputed shop was needed by him for his own occupation, Subsequently, however, he amended his petition, ith the permission of the learned Rent Controller, and pleaded default also. It was after this amendment that the learned Rent Controller had made order regarding the deposit of rent. According to clause (1) of subsection (3) of section 30, of the said Act, the ejectment` of a statutory tenant could be asked for before the expiration of the period of six years if he had not paid or tendered rent within three months of the service of notice requiring him to pay the rent. It was composite notice which was served by the respondent inasmuch as it gave him intimation regarding the transfer of the house and also required him to pay rent. It was served on 23rd November, 1974 and the eject ment application Was filed on 6th March, 1975, that is after three months of the service of notice. Thus, the application in the amended form, in which the ground of default was also pressed, was' competent both at the time when it was originally presented (6th March, 1975) as well when it. was re-submitted (8th May, 1975), in the amended form. It was, there fore, not premature, . 4. The next plea raised by the learned counsel for the appellant was that since the Code of Civil Procedure, which permits amendment of pleadings, did not apply to ejectment proceedings, the learned Rent Controller, had no jurisdiction to allow amendment of the ejectment application so as to enable the respondent to add the ground of default to that of the personal need for securing his ejectment.. It is that the Code of Civil Procedure is not strictly applicable to proceedings before the Rent Controller but as the procedural provisions contained in the said Ordinance are not exhaustive, no illegality is committed by the Rent Controller if he follows the principles of the said. Code in so far as 8 they do not offend against the provisions of the said Ordinance. It has not been laid down anywhere in the said Ordinance that amendment of pleadings shall not be allowed in any case. I am, therefore, unable to agree with the learned counsel for the appellant that the learned Rent Controller had no jurisdiction to allow the amendment in question. 5. One more point canvassed by the learned counsel for the appellant was that after the purchase of the shop by the respondent he had not served the appellant with notice, under section l3-A, of the said Ordinance and, therefore, the order of ejectment could not be passed against him. This plea was not raised by him in his reply to the ejectment application. It was presented by him, for the first time, while replying to the respon dent's application for striking off his (appellant's) defence due to his failure to deposit rent in terms of the direction of the learned Rent Controller. Thereafter, the respondent had no occasion to allege the service of such notice or refute the plea raised by. the appellant. Even if, the respondent had not served a notice under section 13-A, on the appellant it would not invalidate the order of eviction made by the learned Rent Controller. Such a notice has significance in regard to the default which is committed before the launching of ejectment proceedings and constitutes cause of action therefore but it has no bearing on the default made in the compliance of the direction of the Rent Controller for deposit of rent daring the course of those proceedings, the former having been dealt with in subsection (2) of section 13, of the said Ordinance and the latter in subsection (6) of section 13, thereof. 6. Lastly, it was urged by the learned counsel for the appellant that although the appellant had raised an objection that the description of the disputed property, as given in the ejectment application was not correct the Rent Controller had ordered his ejectment without deciding that objection. The argument proceeds that while seeking eviction of appellant. The respondent had not only asked for his ejectment from the property transferred to Nazir Ahmed and purchased by him ( respondent ) but also from some property owned by him ( appellant ). I have gone through the appellants reply to the ejectment application. No doubt in that reply he had objected to the description of the property in dispute but it was not alleged by the appellant that some of the property from which his ejectment was sought belonged to him ( appellant) and not the respondent . It was also not pleaded by him that the relationship of landlord and tenant did not exist between the parties in respect of the entire property involved in the ejectmenmt proceedings. In the circumstances, the plea of the appellant relating to the description of the property is of little consequence. 7. In the end learned counsel for the appellant prayed that in the event of the dismissal of the appeal in limine the appellant may be granted reasonable time to vacate the disputed shop. The respondent who is himself present in court alongwith his two Advocates namely Mirza Naseer Ahmed and Mr. Abdul Hafeez, in connection with a Civil Miscelianeous Petition made in the instant appeal; has no objection to his vacating the shop within a month. 8. Since there is no merit in this appeal, it is dismissed in limine. However, in view of the above concession by the respondent, I direct that the order of ejectment passed against the appellant shall not be executed for One month. M. Y M. Appeal dismissed.