1983 PLP 3251 (CLC)

Ali Ahmad Taqvi for Appellant. Raja Khan for Respondents. Date of hearing : 22nd December, 1982. This second appeal is filed against the impugned judgment dated 26‑2‑1977 of learned IVth Addl. District Judge, Hyderabad, whereby appeal filed against the order of ejectment passed by learned Rent Controller has been dismissed. Briefly stated that relevant facts are that appellant is in occupation of shop No. G/4096/2 in Phulali Bazar, Hyderabad and subsequently he received notice under section 30 of Displaced Persons Act from transferee Fakir Muhammad who claimed to have purchased the property in question. Transferee sent first notice on 21‑7‑1965 and also 'filed ejectment application. This notice was relied and it was pointed out that tenement mentioned in the notice was different from one in occupation of applicant. Transferee approached the Settlement authorities and withdrew ejectment application. Necessary correction was made in the P. T. D. and the property was shown as bearing No. G/4096/2, which is in occupation of the appellant. Second notice was issued by the transferee on 22‑41967 claiming rent from 19‑11‑1963, which is the date of issue of P. T. O. in favour of transferee. The ejectment application was filed in the Court bf Rent Controller on 8‑1‑1968. Appellant contested the proceedings before the Rent Controller and filed written statement and raised objections inter alia that he had filed revision application before Settlement Commissioner and that revision application is pending, hence till the disposal of the application, he is not liable to pay rent. Several issues were framed, in view of pleadings of the parties and after recording the evidence ultimately ejectment was granted on the ground of default, against the decision of the Rent Controller. Appellant went in appeal which was also dismissed as stated above. Second appeal has been admitted in this Court to regular hearing for consideration of the point whether non‑payment of rent during the period when the question of ownership was under consideration by the Settlement authorities will amount to default within the meaning of section 13 (2) of the West Pakistan Urban Rent Restriction Ordinance, 1959. . Mr. Ali Ahmed Taqvi counsel for appellant has contended before me that after the correction in P. T. D. appellant did receive notice but be had filed revision application before the Settlement authorities and status quo was ordered, hence the title of transferee was disputed and the Rent Controller had no jurisdiction to entertain application for ejectment filed by the transferee. I have gone through the written statement filed before the Rent Controller in which in para. No. 1 it is stated that appellant is in lawful occupation of shop and the alleged subsequent change of shop in P. T. D. is illegal ultra virus and in contravention of provisions of Settlement Laws. It is further stated in that para. of written statement that appellant preferred revision petition against the change of number before Settlement Commissioner, Hydgrabad which has been admitted and is pending for final disposal. In this written statement there is no mention of stay order and Mr. Taqvi submitted that later on a separate application was filed on which the order of status quo was passed by the revisional authority. It appears from the record that memorandum of revision petition filed before Settlement authorities by appellant has not been filed before the Rent Controller. Application for stay as submitted before the Settlement authorities also has not been filed. Only copy of order by the Settlement Commissioner has been filed in which it is stated as under "Heard Mr. Ali Ahmad Taqvi counsel for the appellant. Issue show‑cause notice to the respondent. Status quo be maintained in the meantime." It is obvious from the averment made in the written statement before the Rent Controller that Revision petition related to challenge of change of number in P. T. D. and in that context order of status quo could be interpreted to be meaning that the things are to remain as they were at that stage. Mr. Raja Khan bad contended that this order of status quo was not favourable to the appellant but was favourable to the respondent as at the time when this order was passed transferee was already in possession of P. T. D. with number of shop duly corrected. Be that as it may, it is to seen that when application for ejectment was filed, the Rent Controller was competent and had jurisdiction in law to entertain application for ejectment. The Rent Controller was not competent to go into question of title between the parties. The Rent Controller has jurisdiction if question of title is no involved and there is admittedly relationship of landlord and tenant between the parties. In the instant case the landlord filed an application for ejectment after service of notice under section 30 of the Displaced Persons Act and produced alongwith P. T. O. and P. T. D. These documents are sufficient in law to confer title of ownership and to give a right to the owner to receive rent from the occupant of the property in question. So far the Rent Controller is concerned it was perfectly competent for him to act upon these documents in favour of transferee to entertain application for ejectment. Appellant also did not dispute or deny the title of transferee as such but only disputed it in a limited manner by saying that mistake in number of the premises could not be corrected by the department concerned and in that context he had filed revision application before the authorities, which was pending, hence no action could be taken by the Controller till revision application was finally disposed of. Not only that but the appellant voluntarily surrendered himself before the jurisdiction of the Rent Controller and participated in the proceedings and after tentative rent order was passed by Rent Controller ; appellant complied with it in toto. It may be pointed out that the said revision application was dismissed on 16‑10‑1968, ejectment application was filed on 8‑1‑1968, tentative rent order was passed on 2‑8‑1968, which was complied with. After necessary correction in P. T. D. which was made on 17‑3‑1967, second notice was issued on 22‑4‑196'. The question that arises for consideration is whether appellant could have any justification for not paying rent to the landlord after receipt of second notice dated 22‑4‑1967 after correction of number of property in P. T. D. on the ground that he bad filed revision application before Settlement authorities which was pending. Mr. Raja Khan Advocate for the respondents has referred me to the case of Ishfaque v. Muhammad Tahir P L D 1977 Kar. 853 in which it is held that mere pendency of dispute in Settlement Department between landlord and tenant would not condone default by tenant in payment of rent. On the other hand it is contended by Mr. Taqvi that not only his revision application was pending but there was order of status quo also. I had adverted to the interpretation of status quo in earlier paragraph of this judgment. Mr. Taqvi has cited the case of Mst. Karam Bibi v. Mir Muhammad Hassan and others P L D 1962 Quetta 67 in which the facts are different and distinguishable inasmuch as the tenant also has been issued P. T. O. by Settlement authorities and she had filed appeal against the issue of P. T. O. in favour of landlord. There were two P. T. Os. one in favour‑4t4ehant and other in favour of landlord. Hence the question of title was involved. In the instant case the facts are different as stated above. I do not find an fault with the finding of the learned Rent Controller that the appellant was liable to pay rent from the date of correction of number of premises in P. T. D. which was communicated in second notice issued on 24‑4‑1967. Application of ejectment was filed on 8‑1‑1968 and till the passing of tentative order on 2‑8‑1968, no rent was paid by the tenant to the transferee. Appellant cannot use cover of pendency of revision application for refusing pay rent after service of notice on him on the basis of corrected .P. T. D. Findings of two Courts below are concurrent on this point and I do not find any reason to interfere with the same. Appeal is therefore dismissed with order as to costs. Appellant is directed to hand over vacant possession to the respondents within four months from today. M. Y. H. Appeal dismissed.