1980 PLP 886 (SCMR)

SHAFI UR REHMAN J‑The petitioner, a tenant of a shop, seeks leave to appeal against an order of ejectment maintained by the Lahore High Court.

2. House No. 1/111, South Circular Road also described as Iqbal Road, Rawalpindi, was allotted to the Superintendent of Industries Rawalpindi Circle for office‑cum‑residence in 1948. A dispute arose with regard to its transfer between Khalifa Asghar Hussain respondent who was in occupation of it and another person who held a conditional allotment order and was out of possession. The Additional Settlement Commissioner on appeal transferred the house to the respondent who obtained E P. T. O. for the same in the year 1960. The other contestant filed revisions and second revisions against the transfer and did not succeed. A Constitutional petition was filed thereafter on which the High Court passed an order remanding the matter to the Settlement Authorities for re-determining the entitlement of the other party. The Supreme Court on 18‑12‑1967 accepted an appeal against that decision and dismissed the Constitutional Petition. Hence the respondent emerged as the successful transferee and obtained P. T. D. on 8‑8‑1969. While this dispute was going on, it was claimed by the respondent that, he had let out the disputed shop to the house in favour of the petitioner at a monthly rent of Rs.

325. A petition was moved before the Rent Controller in June 1971 claiming that the petitioner had not paid the rent with effect from 10‑2‑1971 and was liable to ejectment. The petitioner raised a number of preliminary objections relating to the jurisdiction of the Rent Controller, the absence of the relationship of landlord and tenant, the non- application of the West Pakistan Urban Rent Restriction Ordinance and the want of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. These preliminary issues were all decided in favour of the landlord and as the tenant could not appeal against such findings he waited till the regulatory order of deposit of arrears of rent was passed against him. He appealed and ultimately succeeded in obtaining a reduction in the rate of rent from Rs. 325 to Rs. 175 p. m. Thereafter, when the proceedings re started before the Controller an application was moved by the landlord claiming summary ejectment of the petitioner on the ground that not only he had denied unsuccessfully the existence of the relationship of landlord and tenant, he had also not claimed to have paid any rent. This was found to, be a true statement of facts and the ejectment was ordered. The appeal of the petitioner failed before the District Judge and so did the second appeal in the High Court

3. The learned counsel for the petitioner has taken up two main grounds for challenging the decisions. Firstly, it has been contended that the High Court's decision in the Constitutional petition remanding the question of transfer for re‑decision had the effect of obliterating from the scene the Provisional Transfer Order issued to the respondent in 1960 an the basis of which he was claiming rent and till the P. T. D. was issued on 8‑8‑1969 there existed no relationship of landlord and tenant between the parties notwithstanding the decision of the appeal in the Supreme Court on 18‑12‑1967. In this context he has also by reference to interpretation of section 29 of the Displaced Persons (Compensation and Rehabilitation) Act urged that the word "possession" as used in section 30 of the Act should be interpreted in the context of its dictionary meaning and not the one provid ed in the definition clause of the Act. On this view of the matter it is claimed that the respondent became a transferee for the first time on 8‑8‑1969, that a statutory relationship of landlord and tenant then came into existence with all the constraints with regard to the rate of rent, the service of notice and the period of protection available to a statutory tenant under that provision. On the basis of such an argument the findings on the preliminary issues, which reflected these submissions are being challenged. The second ground taken up by the learned counsel for the petitioner is that in any case as the petitioner had, at various stages of the litigation, pleaded that he had paid rent and was not in default it was not a case where simply because the relationship landlord and tenant had been denied ejectment should have followed. As a matter of fact, the Rent Controller should have gone into the question of default and determined it before passing the ejectment order.

4. We asked the learned counsel for the petitioner to point out from the record the observation of the Court to sustain the assumption that the transfer in favour of respondent stood cancelled after the High Court, decision in the Constitutional petition. There is nowhere a direct reference to any such finding or decision. On the contriry, in the Supreme Court's judgment the following observations have been made "Dr. Hamid Musa moved a writ petition before the High Court and succeeded in obtaining an order for a remand of the case to the Settlement Department for determination of the question. Whether the petitioner is entitled to the benefit of notification No. F. 3(3) 60‑S. I., dated 11th August 1960, i. e. by reason of a Rehabilitation Authority having issued an order of ejectment." Keeping in view the history of that litigation the assumption of fl, learned counsel does not necessarily follow and could not legally follow. The Deputy Settlement Commissioner had transferred the house to Dr. Hamid Musa which order was upset by the Additional Settlement Commissioner. Thereafter Hamid Musa had participated in the earmarking, bad preferred a revision against that order and a second revision. By calling upon the Settlement Authorities to examine a particular, aspect of the case at best the transfer in favour of respondent was kept in suspense, abeyance subject to such re-determination and not removed from the scene altogether. Be that as it may, the effect of the Supreme Court's decision was of totally effacing the effect of the High Court's decision and restoring the full legal effect and vigour of the transfer made in favour of the respondent. To contend that a second P. T. O. should have followed the decision of the Supreme Court the earlier having been totally obliterated is something which cannot be legally countenanced either on the plane of logic or consistency. The relationship of landlord bad come into existence with the grant of the P. T. O. and remained uninterrupted unless of course any interim regulatory order had been passed with regard to its legal effect and operation. As a fact it has been held by all the Courts that the petitioner was not a tenant in the premises when the P. T. O. issued to the respondent. The parties had contractual tenancy. This is significant for the, next plea taken up by the learned counsel for the petitioner. He had denied the title and interest o the landlord and the relationship of landlord and tenant between the parties. There was nothing, .in the reply filed by the petitioner to the. ejectment application filed by the respondent which may suggest that be denied specifically and pointedly that default which was ,alleged against him an which was made the ground for obtaining his eviction. Undoubtedly, he has been taking convenient pleas in his appeals at various stages, at times, contradictory. There being no denial to the allegation of default and the status of the respondent as a landlord having been disputed so 'long and so thoroughly there was no more inquiry to be held on the pleadings as such. As regards the convenient pleas, suffice it to say that at one stage when S. A. O. No. 235/74 was being heard as noted in para 3 of that judgment he denied having paid rent at the rate of Rs. 325 ever. Now in para 7 of the petition before us an attempt has been made to make out a case of excess payment of rent on what was earlier repudiated. This appears to us to be an indefeasible position.

5. We find no merit and dismiss this petition. As the petitioner is occupying commercial premises we allow him three months' time to make alternate arrangement and hand over the vacant possession of the property subject to his meanwhile observing the terms of tenancy including these with regard to the payment of rent. Petition dismissed.