P L D 1975 Karachi 444 (PLP)

4. Respondent No. 2 on 3‑8‑1961 served a notice on the petitioner intimating him about its transfer and calling upon him to pay the rent. This notice was replied by the petitioner on i2‑8‑1961 (copy of notice and the reply are on the tile) whereby the petitioner accepted the appellant his land lord, but asked him to furnish certified copy of the P. T. O. and certificate of rent from Sukkur Municipality. The relevant portion of the reply given by the petitioner is as under: "That when you informed me that you have purchased the above‑said property in open auction held by the Settlement Authorities, and demanded monthly rent of Rs. 100, I then told you to supply me a true copy of the P. T. O. so that I may be assured that you have got it in auction and you are the owner of the building and entitled to receive the rent. I also told you that you legally cannot get any more amount of the rent than that fixed by the Sukkur Municipality. Therefore you supply me a Rent Certificate issued by the Sukkur Municipality and accordingly I am prepared to pay the rent for the Lower portion from the date of issue of P. T. 0. but from that day, I will deduct the amount of money spent by me over the repairs. But up to this time you have neither supplied me a true copy of the P. T. O. nor given me the Rent Certificate issued by the Sukkur Municipality, and has sent me the Notice unnecessarily. That in your notice, whatever you have written about damaging the house, is absolutely wrong. I have done nothing and on the contrary, I have carried out repairs, and it is not dangerous. That since I have refused to pay Rs. 100 as monthly rent to you as per your demand, you have started mischiefs with both the upper portions only for that, I may pay you Rs. 100 monthly rent as desired by you and also vacate the premises. Therefore I write to you not to play any mischiefs with both the upper parts of the building and make it strong by repairs, otherwise you will be responsible for my life and property and of others. Furthermore I write to you that I ire the above‑mentioned circumstances ant ready to pay you the rent of the portions of the above‑said property in my possession according to Sukkur Municipality Assessment and as such you cannot eject me from the above‑said house for three years. But in spite of all this you took any measure against me you will be responsible for all the risks, costs and losses and for the expenses of this notice too." It seems that the petitioner, in fact, paid rent for some time to the respondent but when he defaulted the respondent filed an application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the Court of Rent Controller, Sukkur, whereby he claimed that the petitioner, in fact, paid him mutually agreed rent at the rate of Rs. 40 p.m. from 25‑7‑1961 to 24‑12‑1961, but later on defaulted he may be ejected. The petitioner before the Rent Controller filed a written statement in which he has clearly stated that to was willing to pay the rent at .he rate of Rs. 40 p m. for the entire house bearing both the numbers. (Certified copies of the plaint as well as the written statement are on the file).

5. During the pendency of the eviction proceedings the petitioner, however, filed an application under Rules 6 and 7 of the P. T. D. Rules, 1961 on 25‑6‑1963 before the Additional Settlement Commissioner who accepted the application by his order dated 27‑7‑1963 and ordered that the petitioner was entitled for transfer of Sr. No. C‑221 against his N. C. H. Form. He, however, did not disturb the entitlement of the other portion C‑222 of respondent Badruddin.

6. Respondent No. 2 challenged the above order by an appeal before the District Judge‑cum‑Settlement Commissioner, Sukkur who dismissed the same by his order dated 20th March 1965, which order was challenged before this Court by Writ Petition No. 223/65. My learned brother Mr. Justice Noorul Arfin accepting the writ petition of respondent No. 2 remanded the case to the Additional Settlement Commissioner by his judgment dated 2‑4‑1969 on the following points:‑ "(1) Whether the cancellation of the Provisional Transfer Order issued in favour of the respondent No. 3 was without notice and consequently void. (2) Whether the respondent Roshan Ali accepted the cancellation of the Provisional Transfer Order of premises C‑222 by his conduct or otherwise, and if so whether this cancellation can be treated as void? (3) What is the effect of this respondent's failure to pay the instalments of the price at which these premises were transferred to him? (4) Whether, if it is found that the respondent accepted the cancellation of the Provisional Transfer Order, the auction of the premises to the petitioner should still be held invalid."

7. When the case went before the Additional Settlement Commissioner on remand he instead of giving clear decision as per direction of this Court stated above. remanded the matter to the Deputy Settlement Commissioner for disposal by very lengthy order dated 12th March 1971, Annex. H, and set aside the original N. C. H. Form and L. H. Form filed by the parties and as well as the entire proceedings in the process.

8. Respondent No. '2 challenged the above order before the learned Settlement and Rehabilitation Commissioner. Sukkur who by his order dated 7‑1‑1972 accepted the revision, set aside the order of remand of Additional Settlement Commissioner and held that the transfer documents including P. T. D. of the properties bearing Nos. C‑211 and C‑222 issued in favour of respondent No. 2 were valid and should hold the field. The petitioner being aggrieved of this order filed the present Constitutional Petition.

9. I have heard Mr. Maroof Ali Khan, Advocate for the petitioner and Mr. Akhtar Mahmood, Advocate for respondent No.

2. Counsel for the petitioner has challenged the impugned order mainly on the grounds that respondent No. 1 Settlement Commissioner has not applied his mind to the provision of section 30 of the Displaced Persons (Comp. & Rehab.) Act, 1958, that he has not considered the unreported judgment of this Court in Writ Petition No. 150/63 "Haji Ghulam Jilani and others v. Settlement Commissioner and others" and that mere willingness of deposit of the rent by the petitioner in favour of the respondent No. 2 could not disentitle him of his right and that no notice of cancellation of P. T. O. was given to the petitioner, there fore; the subsequent issuance of P. T. O. and P. T. D. in favour of respondent No. 2 are void ab initio and that the auction proceedings in favour of respon dent No. 2 was void as the house was not available for disposal by way of auction.

10. Mr. Akhtar Mahmood, Advocate for respondent No. 2 on the other hand submitted that after issuance of P. T. D. in favour of respondent No. 2 as long ago as on 3‑10‑1962, Additional Settlement Commissioner has no power left in him to cancel the same as he had become functus officio, therefore, the learned Settlement Commissioner was right in setting aside the order of the Additional Settlement Commissioner in revision. He further argued that apart from the above, the petitioner, as a matter of fact, accepted respondent No. 2 as his landlord who was duly served with notice under section 30 of the Displaced Persons (Comp. & Rehab.) Act, 1953, and paid him rent for some time which is not in dispute, therefore, the petitioner is, even otherwise, barred under section 116 of the Evidence Act. He relied in this regard on S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others (P L D 1971 S C 669) as well as Mohammad Han f v. Ch. Muzaffar Hussain and 2 others (P L D 1970 S C 583). I see sufficient force in these arguments of the learned counsel for the respondent.

11. In my opinion reliance of the counsel for the petitioner on unre ported judgment in Writ Petition No. 150/63 is misplaced because in that judgment a portion of the house in dispute was transferred to respondent No. 3 which was in his possession as an independent unit with separate access and amenities although he had paid the rent to the petitioner and executed an agreement in this regard. In the present case the P. T. O. of the petitioner was cancelled as long ago as 1960 and both the properties were auctioned which were purchased by respondent No 2 whose hid had been accepted and P. T. D. issued to him in the year 1952. Therefore the judgment relied upon by the counsel for the petitioner is distinguishable and, in no way, in my opinion advances the case of the petitioner. On the other hand, learned Settlement Commissioner in the impugned order came to a finding, as a matter of fact, after hearing the parties and perusal of the record that notice of cancellation dated 12‑12‑1960 of the petitioner's P. T. O. was at page 19 of the transfer file, wherein the word `issued' initialled by some clerk is also inscribed. He went on to observe that although there is nothing to show that this notice was served on the petitioner but as the petitioner had accepted respondent No. 2 as his landlord vide his reply dated 12‑8‑1961 and the written statement in the Court of Rent Controller, there was strong indication that the notice was received by him and he had accepted the cancellation. Besides the reply by the petitioner to the notice is also clear that he did not agitate the cancellation of the P. T. O. issued in favour of the respondent No.

2. He, therefore, did not accept the plea that notice of cancellation was not served on him. I, therefore, viewing the matter, in its broad prospective, see no reason to interfere with this finding of fact of the Settlement Commissioner because when notice was given to the petitioner under section 30 of the Displaced Persons (Comp. & Rehab.) Act, 1958 for payment of rent he should have known that the property had been transferred to the respondent instead of agitating his right. He on the other hand insisted that the copy of P. T. O. issued in favour of respondent No. 2 be furnished to him. This very request goes to show that he should have known that the property had been transferred to the other side. Not only this the petitioner, as observed by the Settlement Commissioner, has not paid any part of the price pursuant to the appendix issued to him till such time that his P. T. O. was cancelled and the property was put to auction. He, therefore, in the circumstances cannot claim to have any vested right accrued to him by mere issuance of P. T. D. without even payment of any price. Therefore, in my opinion, learned Settlement Commissioner was right to set aside the order of the Additional Settlement Commissioner.

12. Apart from the above,. the judgment of their Lordships o the Supreme Court in Anwar Hussain Sani's case clinches the matte f wherein, amongst others, it was held that the Settlement Authorities become functus officio when once P. T. D. had been issued in favour of a party. Furthermore in Mohammad Hanif' v. Muzaffar Hussain and 2 others, the applicability of section 116 of the Evidence Act as a bar to question the relationship of landlord and tenant, which was once accepted was also considered and leave for appeal was granted.

13. For the reasons given above, I see no force in this Constitutional Petition which is hereby dismissed with costs. K. B. A. Petition dismissed.