P L D 1971 Lahore 495 (PLP)

This second appeal by the tenants has arisen out of an order made by the learned Rent Controller on the 4th of April 1970, directing them to deposit rent for a period of three years from the date of the institution of the landlord's application, and tentatively fixing the rate of rent at Rs. 30 per mensem. As the application for ejectment of the appellants was dated the 13th of February 1967, the learned Rent Controller directed that the rent should be deposited from the 13th of February 1964. This order has been upheld by the learned District Judge, Multan, in first appeal.

2. It is contended by the learned counsel that the order passed by the Rent Controller is illegal and invalid for the following reasons:‑ (1) That no issue was framed regarding the jurisdiction of the Rent Controller which had been challenged on two grounds,‑ (a) that the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (herein after referred to as the Act) had not been served upon the appellants, and (b) that there had been no contravention of the terms of the notice, nor any default in the payment of rent, with the result that for the period of six years from the date of the transfer of the house the appellants were protected and could not be brought before the Rent Controller ; (2) that, in any case, the mention of the latest municipal assessment in the notice as commencing from July 1963, was illegal as under the rules framed in this behalf by the Provincial Government in 1962 the Municipal Committee was under an obligation to adopt the assessment carried out by the Excise and Taxation Department as held in The Punjab Association Club v. The Corporation of Lahore etc., P L D 1963 Lah. 380, but the respondent landlord had relied on the municipal Assessment, and (3) that the learned Rent Controller could not order the deposit of rent for three years from the date of institution of the landlord's application, as this period had to be reckoned from the date of his order which was the 4th of April 197.

3. There is no merit in any of these submissions. It is true that the question of jurisdiction had to be determined in the first instance, as under subsection (4) of section 30 of the Act the relationship of landlord and tenant between the transferee and the tenant was to be regulated in accordance with the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) only on the expiry of the period of six years as mentioned in proviso (b) to subsection (1), or on the contravention of any of the provisions of subsection (3), whichever was earlier. In the present case the contravention alleged by the landlord was that in spite of the service of notice the tenants had failed to pay rent at the rate of Rs. 30 per mensem, which was the latest municipal assessment. The learned Rent Controller did not framed any specific issue on the question of default as alleged by the landlord but the finding is implicit in his order dated the 4th of April 1970, that rent had not been paid at the rate of Rs. 30 per mensem as demanded. This fact is also conceded at the Bar, as the tenants contend that they have been paying rent at the rate of Rs. 6 per mensem only as previously fixed by the Rent Controller in litigation between the parties. On the tenants' own admission, therefore, there had been default in the payment of rent at the rate demanded by the landlord.

4. I may state here that the question whether the notice was in fact served upon the tenants or not does not appear to have been contested before the first appellate Court and accordingly I will not permit this point to be raised in second appeal. I am, therefore, proceeding on the assumption that the notice had indeed been served and the only question was whether there had been any contravention of the provisions as contained in section 30 of the Act.

5. The argument that the landlord could not demand rent at the latest municipal assessment and that he had to mention the assessment of the Excise and Taxation Department is clearly misconceived. In terms of proviso (a) to subsection (1) of section 30 of the Act the landlord is entitled to demand rent' at the latest assessment of the municipality or the local body concerned. It is not for the landlord to ascertain what the assessment of the Excise and Taxation Department is. Under the relevant rules, as interpreted in the case of the Punjab Association Club already referred to, it is undoubtedly for the Municipal Committee to arrive at its assessment in accordance with those rules, which lay down that the assessment of the Excise and Taxation Department shall be adopted. In the present case, no averment was made before the two Courts below, nor in the grounds of appeal before me, that the Municipal Committee has not acted in accordance with law while fixing its own assessment. There is thus no merit in this submission and I must hold that there has been a contravention of the terms of the tenancy as contemplated by the provisions contained in section 30 of the Act. The appellants were, therefore, liable to be dealt with by the Rent Controller.

6. As regards the period of limitation, the learned counsel has placed reliance on Ashfaq‑ur‑Rahman v. Ch. Muhammad Afzal (P L D 1968 S C 230) in which it was held that a Rent Controller, acting under section 13(6) of the Ordinance, cannot direct the tenant to deposit rent in respect of which the legal remedy to recover has become barred under the statute of limitation. The precise question before their Lordships was whether the Rent Controller could order the deposit of rent for a period beyond three years from the date of the institution of the landlord's application, and the question was answered in the negative. The contention now raised on behalf of the appellants is that the effect of the judgment of the learned Judges of the Supreme Court is that the period of three years has to be counted from the date of the Rent Controller's order and not from the date of the institution of the landlord's application. It seems to the learned counsel that it is only on the date of the order that the rent. becomes payable and, therefore, the period of three years has to. be counted from that date.

7. The argument is clearly misconceived, for on the analogy of a suit for the recovery of rent the learned Judges of the Supreme Court have clearly observed that the Rent Controllers could not direct the deposit of that rent which could not be legally recovered. In all cases where the statute of limitation has to be applied, the relevant date is the date on which the plaintiff invokes the legal remedy, and not the date on which the Court decides his case or passes any other appropriate order. As the jurisdiction of the ordinary Courts has been barred under them Ordinance and the relationship of landlord and tenant has to be regulated by the provisions of this Ordinance, the relevant date for purposes of limitation, in the light of the dictum of their Lordships of the Supreme Court in the case of Ashfaq‑ur‑Rehman will be the date on which the application was instituted. On this view of the matter, the two Courts below were acting rightly id' directing the deposit of rent from the 13th of February 1964, as the application of the landlord was instituted on the 13th of. February 1967.

8. For the foregoing reasons, the appeal fails and is hereby dismissed in limine. K.B.A. Appeal dismissed.