1980 PLP 1329 (CLC)

Abdul Sayeed v. Abdul Salant Farooqui P

1. D 1971 Kar. 217 held not applicable. Masood Hassan Khan for Appellant. Date of hearing : 6th November, 1979. The appellant is the transferee of House No. C/932, Hyderabad under the Settlement Scheme. The house was admittedly in possession of the respondent and had earlier been transferred to him on his L. H. Form under Settlement Scheme No. 1, but the transfer was cancelled on account of his default to pay the evaluation price. Thus the property being available was transferred to the appellant under Settlement Scheme No. Vill on 29th November, 1966. Subsequently, on 2nd January, 1967 a P. T. D. was issued in his favour. Since the respondent was in occupa tion of the property the appellant served a notice under section 30 of .the Displaced Persons (Comp. & Rehab.) Act, 1958 which was received by the respondent on 17th April, 1967. By his reply dated 17th May, 1967, however, the respondent demanded the copies of the documents of transfer which were supplied to him through letter dated 24th June, 1967. Notwithstanding the above, the respondent failed to pay rent within the statutory period of three months from the date of receipt of the notice of demand. The appellant, therefore, filed application for his ejectment on 28th November, 1967. The respondent appeared before the learned Rent Controller and denied the relationship of landlord and tenant between the parties on the ground that proceedings were pending before the Settlement Authorities to determine the entitlement of the respondent for the transfer of the property. On this plea the Rent Controller framed the issue regarding the relationship of landlord and tenant between the parties and the maintainability of the application. On 19th September, 1969 the Rent Controller passed orders whereby he decided the issue regarding the relationship of landlord and tenant between the parties, in favour of the appellant and at the same time ordered ejectment of the respondent in view of the fact that no rent was admittedly tendered by hire. This order was set aside in appeal and the case was remanded to the Rent Controller so far as the question of default is the payment of rent by the respondent was concerned. The respondent did not further pursue his contention that no relationship of landlord and tenant existed between the parties.

2. On remand the appellant examined his attorney in evidence and produced certain documents, but respondent made a statement declining to produce any evidence. By his order dated 12th March, 1973 the Rent Controller decided the issue of default against the respondent and ordered his eviction. The respondent appealed against the aforesaid order which was disposed of by the learned III Additional District Judge, Hyderabad. In appeal the learned Judge was persuaded to hold the view that the notice under section 30 although served on 17th April, 1967 remained suspended in its operation until 23rd October, 1968 when the pending revision petition filed by the respondent before the Settlement Commissioner was finally dismissed. In this view of the matter the learned Judge has taken the view that since the ejectment application eras instituted on 28th November, 1967 during the period the notice under section 30 remained suspended, no opportunity was available to the respondent to comply with the notice by tendering rent within the statutory period and, therefore, he was not a wilful defaulter in the payment of rent within the meaning of section 30 of the Displaced Persons Act. As a result, the learned Additional District Judge accepted the appeal and set aside the order of ejectment. The appellant has now come up in second appeal against the aforesaid judgment.

3. Before considering the submissions of the learned counsel for the appellant. it will be necessary to mention some further facts. It appears from the orders passed by the learned Additional Settlement Commissioner and the Settlement Commissioner that the petitioner had filed a L. H. Form for the transfer of the premises in 1960 in consequence of which the house was transferred to him and the P. T. O. was issued in his name. But he did not pay the price in spite of a demand notice sent to him in June, 1966. His P. T. O. was accordingly cancelled on 30th September, 1966. Without paying the dues under the first order of transfer on the basis of his L. H. Form he submitted a fresh Form under Settlement Scheme No. VIII on 29th October, 1966 but the house was transferred to the respondent in lieu of a house transferred under the earmarking scheme. The respondent was, however, given time to pay the price when he filed appeal before the Additional Settlement Commissioner but he failed to avail the opportunity. Consequently, his appeal was dismissed on 7th October, 1967. He then filed a revision petition No. 7 of 68 before the Settlement Commissioner which was also dismissed on 23rd October, 1968.

4. For the proposition of law that the pendency of litigation before the Settlement Authorities has the effect of suspending the operation of a notice under section 30 of the Displaced Persons Act, the learned Additional District Judge placed reliance on Abdul Sayeed v. Abdul Salam Farooqui (P L D 1971 1Car717), In this case Ghulam Rasool K. Shaikh, J. (as he then was) repelled the contention that where notice was served during the pendency of appeals and revision it ipso facto lost its force so that a fresh notice after the final order was passed by the Settlemernt , Department was imperative and made the following observation :-- "The notice as required by section 30 was given and it held good for all purposes. At the most it remained suspended during the pendency of the appeals and revision and could be taken as a circumstance in favour of the appellants for non-payment of rent till the final order was passed and the default could not be attributed to them but to say that its effect was completely washed off or the notice was thereby rendered infructuous or invalid cannot be accepted." The above passage does not in my opinion lay down that the pendency of appeal or revision before the Settlement Authorities against an order of transfer necessarily suspends the effect or operation of a notice served under section

30. The use of the words "at the most" clearly indicate that the learned Judge was not expressing final opinion on the aforesaid question of law. It is well recognized that mere filing of appeal of revision does not operate as a stay of the order challenged in such proceedings unless the authority entertaining such proceedings by order stays the operation of the order under challenge. Under section 30 of the Displaced . Persons Act as soon as an evacuee house or shop has been transferred, the transferee is entitled to charge rent from the person occupation of such property who will be liable to be ejected if he fails t pay or tender the rent after notice of demand within a period of the months. The rights conferred by the statute upon a transferee cannot I taken- away as long as the transfer subsists in his favour. I am, therefore, of the opinion that unless the order of transfer in favour of the appellant was stayed by higher Settlement Authorities the appellant was entitled to demand payment of rent and the respondent was liable to be evicted for non-payment of rent after service of notice under section

30. However, in appropriate cases the pendency of such proceedings may be a relevant consideration for exercise of discretion in favour of the tenant. In the present case in spite of opportunity given to the respondent, he did not appear in evidence to say that he did not tender rent because of the pendency of proceedings before the higher Settlement Authorities. The question of exercise of discretion in absence of any evidence led by the respondent to- establish circumstances for such exercise of discretion, therefore, does not arise.

5. For the foregoing reasons, I allow this appeal and set aside the order passed by the lower Appellate Court. 1n the result, the order of eviction passed by the Rent Controller shall be restored. The respondent is, however, allowed to hand over possession of the premises to the appellant within a period of three months from today. S. Q. Appeal allowed.