P L D 1964 (W (PLP)

Rasool Bux A. Memon for Respondent. Dates of hearing : 6th and 13th January 1964. This is an appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959) against the judgment of the District Judge, Sukkur, upholding the order of the Sub‑Judge and Rent Controller, Sukkur, directing the appellant to vacate the premises in question and to put the landlady in possession thereof and also to pay enhanced rent at the rate of Rs. 26 per month to the landlady in respect of these premises in his possession from 1‑6‑1960 till vacant possession is handed over to her.

2. The brief facts giving rise to this matter are that on 30‑5‑1960 the respondent Mst. Satbai wife of Kazi Ghulam Dastagir purchased in an auction held by the Deputy Settlement Commissioner, Sukkur, property bearing S. No. B‑2111 in New Sukkur for the price of Rs. 15,

000. This property consisted of two floors with eight tenements on each floor. The appellant was in occupation of three tenements on the upper floor and one tenement on the ground floor for which he was paying a paltry rent of Rs. 2‑8‑0 per month for each tenement on the upper floor and Rs. 2 per month for his ground floor tenement thereby making in all the sum of Rs. 9‑8‑0 per month. On 29‑8‑1960 the respon dent Mst. Satbai served him with a notice through her Advocate enhancing the rent of the upper floor from Rs. 2‑8‑0 per tenement per month to Rs. 20 per tenement per month and of the ground floor from Rs. 2 to Rs. 15 as from 1‑6‑1960. In this notice the appellant was called upon to pay rent for three months from 31st May 1960 to 31st August 1960 at this enhanced rate. The total amount he was called upon to pay was Rs. 180 for the three upper floor tenements plus Rs. 45 for the ground floor tenement. In September 1960, the respondent Mst. Satbai filed an application under section 13 of Ordinance VI of 1959 but this application was later withdrawn by her. It is alleged by the appellant that he had arrived at a compromise with his landlady on this application filed by her and as a result of which compromise he surrendered to her as from the end of September 1960 two rooms one on each floor thereby retaining only two upper rooms. On 6‑12‑1960 the respondent landlady presented a second application under Ordi nance VI of 1959 against the appellant in the Court of the Civil Judge and Rent Controller, Sukkur, praying for ejectment of the appellant from the above‑mentioned tenements, for the recovery of Rs. 180 being the balance of rent and for the recovery of future rent from 1‑12‑1960 till possession is obtained by her. A lengthy written statement was filed to this application on behalf of the appellant but in the result the learned Sub‑Judge and Rent Controller held that the appellant having failed to pay rent to his landlady within three months of the date of the service upon him of her notice of 29‑8‑1960, had lost the protection of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) and that, therefore, the landlady was entitled to recover possession from him. In this order the learned Rent Controller had also held that the landlady was entitled to recover arrears of rent from the appellant at the rate of Rs. 14 per month for each tenement from 1‑6‑1960 till vacant possession is handed over by him to the landlady. An appeal against this order was preferred before the District Judge, Sukkur, which, as men tioned above, was dismissed by him. The present appeal is from this order of the District Judge, Sukkur.

3. Appearing on behalf of the appellant Mr. Nooruddin Advocate first contended that the Civil Judge and Rent Controller, Sukkur, had erred in his order in holding that the appellant had lost the protection of section 30 of Act XXVIII of 1958 without raising a specific issue on this point. The learned Advocate argued that the respondent landlady had approached the Rent Controller with her application for ejectment before the statutory period of three or six years as mentioned in section 30 (1) (b) of Act XXVIII of 1958 had elapsed. He further submitted that no default in payment of rent had been committed by his client and that, there fore, the provisions of subsection (3) of section 30 did not apply to this case. Examining this argument of the learned Advocate it is plain to me that his client had defaulted in the monthly payment of his rent to his new landlady and that he had not even cared to reply to her notice to him of 29‑8‑1960. This notice was admittedly received by him on 31‑8‑1960 and for three months from that date up to 30‑11‑1960 he had not paid or tendered the amount of rent or the arrears of rent due to her after the transfer of the said building to her and thus he came within the provisions of subsection 3 (1) of section 30 thereby depriving himself of the protection of section 30. 1, therefore, reach the conclusion that the Rent Controller was right in holding that the appellant had lost the protection of section 30 of Act XXVIII of 1958. Although A no specific issue was raised on this question, yet, it seems to me that this was not a matter of moment and that on Issues Nos. 4 and 5 as they were struck by the Rent Controller he could give al finding that the appellant had disentitled himself to the protection of section 30.

4. However, the next argument of Mr. Nooruddin was that even if his client had lost the protection of section 30 of Act XXVIII of 1958 and had thereby ceased to be a statutory tenant, he can yet fall back upon the ordinary relationship of land lord and tenant to be regulated in accordance with the law for the time being in force relating to such relationship as provided for by subsection (4) of section 30 of the same Act. The learned Advocate contended that on this basis his client could avail himself of such help as he could claim under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). The order of the Rent Controller was made against the appellant under section 13 of this Ordinance and Mr. Nooruddin submitted that before an order of ejectment can be made it is imperative for the Controller to first determine the quantum of rent due monthly from the tenant and then to direct the tenant to deposit all the rent due from him at that rate and also to deposit regularly till the final decision of the case before the 5th day of each month the monthly rent due from him. Mr. Nooruddin pointed out that in this particular case the provisions of section 13 (6) of Ordinance VI of 1959 which are mandatory had not been complied with by the learned Sub‑Judge and Rent Controller, Sukkur. The learned Advocate argued that this was an illegality which served to vitiate the order of the Rent Controller as well as the order of the District Judge, Sukkur.

5. Appearing on behalf of the respondent landlady Mr. Rasool Bux Memon first submitted that the two Courts below had arrived at concurrent findings of fact that the appellant had defaulted in the payment of his rent and that this being a concurrent finding by the two Courts below this High Court ought not in second appeal to disturb this concurrent finding of fact. He relied for this submission upon the case of Muhammad Ikhlas v. Muhammad Ismail (P L D 1963 SC 466), and upon the case of Abdul Majid v. Khalil Ahmad (P L D 1955 FC 38). With regard to the failure of the Rent Controller to comply with the provisions of section 13 (6) of Ordinance VI of 1959 Mr. Rasool Bux submitted that it was not necessary for the Controller to do so because under section 13 (2) (i) of the said Ordinance the appellant/tenant had not paid or tendered the rent due by him within sixty days from the period for which the rent is payable. Mr. Rasool Bux further submitted that it is not incumbent upon the Rent Controller in each case under section 13 of the Ordinance to give the tenant an opportunity of depositing the arrears of rent due by him and that if, for instance, the tenant is to be evicted for subletting the premises or for using them for a purpose other than that for which they were leased to him, in such cases compliance with section 13 (6) becomes wholly unnecessary.

6. Now, with regard to the contention of Mr. Nooruddin that even if it be held that his client the appellant had lost the protection of section 30 of Act XXVIII of 1958 he can yet fall back upon the Ordinary relationship of landlord and tenant there can be no dispute. In fact, subsection (4) of section 30 of Act XXVIII of 1958 is clear on this point. But, the further conten tion of Mr. Nooruddin that the order of the Rent Controller in this case is vitiated because of his omission to comply with the provisions of sub‑clause (6) of section 13 of Ordinance VI of 1959 is one that I am afraid I cannot accept. I observe that this con tention has not been raised in either of the two Courts below and has been pressed for the first time in this second appeal. Nevertheless, being a point of law I felt that I would not be justified in shutting out the appellant's Advocate from urging this legal con tention. Now, examining closely the provisions of section 13 of Ordinance VI of 1959 it is manifest that this section deals in the main with the eviction of a tenant. It lays down conditions on the satisfaction of which the Controller is empowered to make an order directing the tenant to put the landlord in possession of the building or premises in question. The very first of these con ditions which, if satisfied, would empower the Rent Controller to make an order of ejectment is that the tenant should have defaulted in the payment of his rent within sixty days from the period for which the rent was payable in the absence of any tenancy agreement. Other conditions empowering the Controller to make an order of ejectment such as the condition that the tenant has without the written consent of the landlord sublet the premises or used them for a purpose other than that for which it was leased or has committed acts likely to impair materially the value or utility of the building and so on are also set out in sub clause (2) of section

13. Therefore, sub‑clause (2) of section 13 makes it clear that if the Controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied that any one of these conditions has been violated, he may make an order of ejectment against the tenant. The scheme of section 13, in my opinion, is, in the first instance, to make provision for the circumstances in which the Controller may pass an order of ejectment and as, mentioned above, this section 13 is primarily intended to deal with eviction of a tenant.

7. Now, turning to sub‑clause (6) of section 13 I find that this sub‑clause deals solely with payment of rent by the tenant to the landlord. According to me, this question of payment of rent by the tenant to the landlord is something quite distinct and wholly different from the tenant's liability to eviction. It seems to me that this sub‑clause (6) has been introduced to ensure that while a landlord is pursuing his proceedings under section 13 for eviction of his tenant he may, at the same time, be ensured that during the pendency of these proceedings the tenant will pay him his monthly rent regularly and that it would not be necessary for him to have to file a separate suit to recover the rent that falls due during the pendency of the proceedings and the arrears of rent that may have accrued due before the institution of these proceed ings by him. This sub‑clause (6) then has nothing to do with the eviction of the tenant and I cannot, therefore, accept this argument of Mr. Nooruddin that because the Controller in this case has omitted to comply with the provisions of sub‑clause (6) of section 13 that, therefore, his order in this case is vitiated.

8. Mr. Rasool Bux has in the course of his arguments pointed out that the appellant/tenant has defaulted in the payment of his rent and that this has been found by both Courts below. On the basis of this concurrent finding of fact with which I am bound,? it seems to me, that the provisions of section 13 (2) (i) aptly t apply to this case, and that, therefore, the Controller was justified in passing his order of ejectment against the appellant in this case. I am also in agreement with the further contention of Mr. Rasool Bux that it is not incumbent upon the Rent Controller in each case under section 13 of the Ordinance to give the tenant an opportunity of depositing the arrears of rent due by him as con templated by subsection (6). The other conditions mentioned in subsection (2) of section 13 for which a tenant may be ejected such as, for example, subletting the premises without consent or using them for a purpose other than that for which they were leased or damaging the property are conditions to which subsection (6) of section 13 can have no application at all. Of course, in this parti cular case, the order of eviction against the tenant has been made because of the default committed by him in the monthly payment of his rent : but, even so, I cannot agree that subsection (6) necessarily applies to a case such as this and that because this subsection (6) has not been complied with by the Controller this omission vitiates his order. As pointed out above, subsection (6), of section 13 is only meant to ensure to the landlord the monthly recovery of his rent and it can have no concern and no application to the eviction of the tenant who has defaulted in the terms of sub‑clause (i) of section (2) of section 13 of this Ordinance. I must, therefore, reject the argument of Mr. Nooruddin that the failure on the part of the Controller to comply with the provisions of subsection (6) of section 13 vitiates his order in this case.

9. Mr. Nooruddin finally submitted that ever since the filing of this second appeal in this High Court his client has been most punctilious in the payment of his monthly rent to the respondent landlady at the enhanced rate of Rs. 26 as determined by the District Judge and that these sums of money are now lying deposited with the Nazir of this Court. In the first place, it is necessary to observe that these payments have only been made by the appellant in order to keep alive the order of interim stay that I had granted to him at the time of admitting this appeal to a regular hearing. Indeed, but for this order of mine, the appellant may well have continued further defaulting in the monthly pay ment of his rent to the respondent landlady. Secondly, a default in the payment of rent as contemplated by section 13 (2) (i) of the Ordinance having once been committed, such default cannot be wiped out or erased by subsequent payments of this rent. Nor, can the penalty of eviction that has been incurred by reason of such default be stayed off by subsequent payment of rent. Therefore, this last argument of the learned Advocate appearing on behalf of the appellant can, in no way, improve his case.

10. For these reasons, then, this appeal must be dismissed with costs and the orders of the two lower Courts upheld. K. B. A. Appeal dismissed.