P L D 1984 Karachi 135 (PLP)

This is a second appeal against the orders, dated 20-6-1978 and 29-11-1980 passed by the learned Rent Controller, Khairpur and the learned Second Additional District Judge, Khairpur respectively in Rent Application No. 54 of 1973 and Civil Appeal No. 41 of 1978, respectively. The brief facts leading to the filing of the above appeal are that the respondent filed the aforesaid rent application, on 26-10-1970, which was transferred and re-numbered as Rent Application 54/1973 on the ground of default- The above application was resisted by the present appellant. The learned Rent Controller framed six issues on the basis of the pleadings of the parties but three of the above issues were treated as preliminary issues. After recording the evidence and hearing of the parties, the learned Rent Controller b5, his order, dated 1'?-5-1972 passed an ejectment order. The appellant being aggrieved by the above order filed Rent Appeal No. 9 of 1972, which was allowed and the case was remanded back to the learned Rent Controller for taking further evidence. After the above remand order, the learned Rent Controller passed tentative rent order on 23-12-1975 against which an appeal was filed, which was dismissed as having become infructuous on 14-5-1977. The appellant bad not complied with the tentative rent order and, therefore, the learned Rent Controller passed the aforesaid order dated 20-6-1978 ordering ejectment of the appellant. The appellant being aggrieved by the above order filed Civil Appeal No. 41 of 1978, which was dismissed by the learned Second Additional District Judge, Khairpur, by his above order, dated 29-11-1980. The applicant being aggrieved by the above two orders has filed the present second appeal.

2. In support of the above appeal Mr. Muhammad Hanif Mangi, learned counsel for the appellant has urged that since no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (herein after referred to as the Act) was served upon the appellant, the respondent's application for ejectment was not competent and all the subsequent proceeding and the orders passed therein ate also of no legal consequence. On the other hand Mr. Ali Aslam Jafferi learned counsel for the respondent. has contended that factually the respondent's attorney, who had appeared before the Rent Controller in support of preliminary issues had deposed that a notice under section 30 of the Act .was served on the appellant before the filing of the rent application and since this statement was not challenged in the cross-examination nor even in the examination-in-chief by the appellant, the plea of want of service of notice cannot be raised in second appeal. He has further submitted that even otherwise since the ejectment order was passed it 1978 when admittedly the Act was repealed in 1974 this plea was not available to the appellant on the date of passing of the Rent Controller's order.

3. As regards the first contention of Mr. Ali Aslam Jaferi that the respondent's attorney's statement as to the service of notice was not challenged in the cross-examination and also by the appellant in his examination-in-chief, 1A it may be mentioned that since the appellant had denied the service of notice in his written statement, it was incumbent upon the respondent to have produced the copy of the notice and also the acknowledgment receipt in terms of section 30 of the Act. This leads us to the second contention) of the learned counsel, for the parties. Mr. Maugi has referred to the case of E. A. Evans v. Muhammad Ashraf (P L D 1964 S C 536) the case of Muhammad 1qbal Ahmed Quresht v. Mst. Jalees Begum (P L D 1980 Lah. 443) and the case of Muhammad Ramzan v. Ch. Bashir Ahmed (P L D 1981 S C 340). On the other hand Mr. Ali Aslam Jafferi has relie upon the case of Mst. Amina Begum and others v. Mehar Ghulam Dastagir (P L D 1978 S C 220). In the above 1964 Supreme Court case (which is a celebrated case) it was held that under section 30 of the Act, notice is mandatory and that the parties cannot contract out of the same and that the tenancy commences on the service of the notice. In, the Lahore case a learned Single Judge of the Lahore High Court has held that in view of section 6 of the General Clauses Act, 1897, protection of occupants under section 30 of the Act still subsists and continues even after the repeal of the Act. As regards the cases reported in P L D 1981 S C 340; it may be observed that in the above case the ejectment case was filed according to the tenant without service of the notice in April, 1980, after the repeal of the Act. It was contended by the tenant that since no notice under section 30 of the Act was served, the protection period of six years had not commenced and that the application was not competent. The above contention was rejected by the Supreme Court, and it was held that the rent application was competent and the approach of the Lahore High Court that no purpose would be served by remanding the case on the question of protection after the repeal was proper. In the above Supreme Court case reference was also made by the Supreme Court to its earlier judgment in the case of Mst. Amina Begum and others v. Mehar Ghulam Dastigar relied upon by Mr. Ali Aslam Jafferi, in which a rent application was filed prior to the repeal of the Act and somewhat similar objection was canvassed before the Supreme Court which was repelled in the following words.-- Now reverting to the facts in the instant case before us, to start with the ejectment application was filed by the respondent against the petitioners on the grounds that they had committed default in the payment of rent and impaired the value and utility of the premises and also because he wanted to reconstruct the shop in question, On these allegations therefore, this application as laid was competent and could be enquired into. During the pendency of the application even the statutory period of protection against the ejectment of the petitioners, under proviso (b) to subsection (I) of section 30 had also elapse and the Nigh Court in exercise of the discretion vested in it found that the shop in dispute was old and dislapidated one. Actually on a complaint the condition of the structure had been declared as dangerous and in that connection Municipal Committee had also launched proceedings against the landlord and the tenants. In the opinion of the High Court there was overwhelming evidence available on the record to arrive at the finding that the landlord reasonably required the premises in good faith for reconstruction and that there was no justification for interference with the concurrent findings of fact recorded by the authorities below in that behalf. In this d- connection the Court further observed that the ejectment application was filed in the year 1966 and was eventually decided by the Rent Controller after six long years in the year 1972. If the case were to commence fresh after the 11 years of this litigation by the 28th of February, 1977, when the impugned order was passed by the High Court, the result on account of the accepted position on the merits of this issue would not be any different." In the instant case as admittedly the ejectment order against the present appellant was passed on 20-6-1978 i. e. after the repeal of the Act, in my! view the ratio decidendi of the above Supreme Court case 1978 on all fours is applicable. The case was filed in 1970 at the time when the Act was not repealed and if it would not have been repealed by the time of passing of the ejectment order, the above objection raised by Mr. Mangi would have been fatal to the rent application. Furthermore, we are now in 1983 i. e. nearly 13 years have expired from the date of filing of the above rent application and, therefore, it will not be just and proper to dismiss the above rent application on the above ground as admittedly the appellant's defence was struck off for non-compliance of the tentative rent order which order was upheld by the first appellate Court.

4. It may also be mentioned that it was also contended by Mr. Mangi that the first appellate Court had no jurisdiction on the date when it disposed of the rent appeal, on 29-11-1979 as the late West Pakistan Urban Rent Restriction Ordinance was repealed by Sind Rented Premises Ordinance, 1979, which came into force on 21-11-1979. It may be mentioned that originally section 27 was not provided in the form in which it now exists. Subsec tions (3) and (4) were added by Sind Rented Premises (Amendment) Ordi nance, 1980, which was promulgated on 21-1-1980. The above section reads as follows:-

27. Repeal.-(1) The Sind Urban Rent Restriction Ordinance, 1959, is hereby repealed (2) All appeals, and such cases before a Controller as are fixed for argu ments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance. (3) All other cases instituted under the Ordinance mentioned in subsec tion (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any order made otherwise by the Controller, be continued and disposed in accordance with the provisions of this Ordinance and any proceeding taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance. (4) Notwithstanding the provision of subsection (2) all orders made in pursuance thereof and any order made under the Ordinance mentioned in subsection (1) in any proccedings before the commencement of this Ordinance shall be deemed to have effect as an order under this Ordinance and be executed in accordance with the provisions of section 22." It may be noticed that under subsection (2) all appeals and such cases before a Controller which were fixed for arguments or judgment, and which had been filed under the Ordinance mentioned in subsection (1) were to be t disposed of notwithstanding the repeal, in accordance with the said Ordinance. The above Rent Appeal No. 41 of 1978 was saved as all the pending appeals were saved. Furthermore, even if- it is to be conceded for the sake of argument that only those appeals were saved which were fixed for arguments or judgment, in that event also the above rent appeal was saved as it was fixed for arguments on the date when the above Sind Rented Premises Ordinance, 1979, was promulgated.

5. For the aforesaid reasons the appeal is dismissed with no order as to costs. However, I grant six months' time on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's order, failing which the respondent shall be at liberty to file execution applica tion before the expiry of the above period of six months. Furthermore, in case the appellant fails to hand over the vacant possession on the expiry of the above period of six months, the Rent Controller shall issue writ of ejectment without further notice to the appellant. Appeal dismissed.