P L D 1966 (W (PLP)

2. Briefly, the facts leading to this appeal are: That House No. 164/1, situated in Hirabad Mirpurkhas is in occupation of the appellant since before 1947, as tenant of the evacuee owners. After 1947, the property in dispute was treated as evacuee and the appellant had to pay rent to the Custodian Department for this reason. The property in dispute alongwith other evacuee properties was acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the Central Government for disposing of in accordance with the above‑‑men tioned provision of law. On 15th October 1959, the Settlement Authorities provisionally transferred it to the respondent. The Final Transfer Order was passed in his favour on 1st May 1961.

3. The appellant was in arrears of rent from October 1959 to April 1961 and from 1st May 1961 to 31st May 1962. On 8th June 1962, the respondent served a notice under section 80, C. P. C. on the appellant demanding from him rent for the first period at the rate of Rs. 40 (Rupees forty) per month and for the second period at the rate of Rs. 100 (Rupees one hundred) per month as mutually agreed upon between the parties. This notice was not complied with. Consequently, on 29th March 1963, the respondent instituted Rent Application No. 24 of 1963, in the Court of the Rent Controller, Mirpurkhas for the ejectment of the appellant on two‑fold grounds, namely, that the appellant was in. default and that the property was required by the respondent for his personal use. On 28th May, 1963, the Rent Controller fixed Rs. 40 (Rupees forty) as tentative rent. The appellant was directed to deposit rent from 1st July 1960 to 1st July 1963, in terms of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. On merits, the learned Rent Controller by order dated 7th December 1963, upheld the respondent's claim that the appellant committed default within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and passed an order for ejectment against him on that ground. From this order the appellant filed Civil Appeal No. 26/1964, in the Court of the District Judge, Tharparkar at Mirpurkhas, which was dismissed by judgment dated 9th May 1964. The learned District Judge upheld the finding of the Rent Controller that the appellant had committed default and was liable to be evicted under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The appellant has challenged these orders in this Second Appeal.

4. Mr. S. M. Nurul Hasan, the learned counsel for the appellant has urged three points in support of the appeal. Firstly, that the finding that the appellant had committed default was not based on proper appreciation of evidence. Secondly, that the respondent had claimed rent at Rs. 100 (Rupees one hundred) per month which was not the latest assessment and, therefore, the alleged agreement was void in law. He contended that the appellant was not bound to pay rent at Rs. 100 (Rupees one hundred) and, therefore, it cannot be said that he was guilty of default. Thirdly, that the premises in dispute belongs to a class of buildings which are exempted from the operation of the West Pakistan Urban Rent Restriction Ordinance, 1959. I propose to discuss these points separately.

5. In support of the first point the learned counsel was unable to draw my attention to any fact or evidence worth consideration which would show that the appellant was not in default for the period referred to above. The appellant's counsel had to concede that his client was in default towards the arrears rent from 1st July 1960 till 30th June 1963. His only contention is that the Rent Controller has not given due consideration to the fact that the appellant is a Public Officer and the non payment of rent was beyond his control as it depended on budget allocation. He contended that under section 13, the power to evict a tenant wholly rests within the discretion of the Rent Controller. It was a fit case in which he should not have exercised his discretion in favour of the respondent. In this connection I would like to reproduce the observations of the learned District Judge which are as under:‑-- "It appears that the appellant, who happens to be public servant feels that since the property in his possession, he is immune from all the implications of law. He is reminded that law makes no distinction between individuals, however, highly placed a person might be on the contrary a public servant should see that he respects law more than other persons. If there is any impression that the Courts of Law cannot eject a public servant, who is occupying a property, the ownership of which has been conferred upon another individual according to law, it is high time that such impression should be removed at once." The learned counsel for the appellant has not been able to satisfy me as to why the Court should make discrimination between the private parties and public parties. The law is to be applied on the same principle against each of these parties. The contention of the learned counsel that no budget allocation was made by the Government or the appellant was not bound to pay the rent out of his own pocket has not impressed me in the least. If the Government takes any property on lease or any of its Public Servant takes any property on lease from a private person, it is their duty that they should also be regular in the payment of rent just as a private party is expected under the ordinary law. In my view the learned District Judge was perfectly justified in observing that this impression which is wrongly held by the Public Servants should be removed at once. The learned Rent Controller was perfectly justified in exercising the discretion in favour of the respondent because the appellant was in arrears of rent for more than three years. The appellant's counsel has not satisfied me that the learned Rent Controller has not exercised the jurisdiction vested in him on judicial considerations.

6. In support of the second contention that the alleged agreement by which the appellant agreed to pay Rs. 100 (Rupees one hundred) per month is void being against Public Policy, the learned counsel referred to a decision by the Supreme Court in E. V. Evans v. Muhammad Ashraf (P L D 1964 S C 536). In that case their Lordships repelled the contention that since there was nothing in the Act which expressly prohibited the landlord or the transferee of the premises from charging‑ rent at a higher rate or that because the Act does not say that. it shall not be lawful for the landlord to accept a higher rent the landlord is not necessarily debarred from doing so. On the contrary, their Lordships held that‑ "The provision in the section that it shall be lawful for the transferee to charge rent on the basis of the last assessment by necessary implication makes it unlawful for him to charge rent at a different rate upon the well known principle of expressum facit cessare taciturn. If a doing of a particular thing is made lawful the doing of something which is in conflict with that will be unlawful. We are of the view, therefore, that a person protected by section 30 of the Act of 1958 could not lawfully contract out of the protection, for, such a contract would be void being against public policy." In view of these observations the contention of the appellant's counsel that the agreement to pay rent at Rs. 100 (Rupees one hundred) per month is not binding on the appellant is well founded. But this would not in any way effect the decision of this case because the rent at Rs. 100 was claimed only in respect of the period beginning from 1st May 1960 to 31st March 1963. It is not disputed that the arrears of rent from 1st July 1960, to 30th April 1961, at the rate of Rs. 40 was not paid by the appellant before the ejectment application was instituted in the Court of the Rent Controller, Mirpurkhas on 29th March 1963. It is, therefore, perfectly clear that the appellant at the time when the ejectment application was filed had committed default in respect of the rent for the above‑mentioned period which was claimed at the ordinary rate and to the payment of which the appellant could possibly have no valid objection. I would, therefore, hold that the appellant was in default and on that basis the learned Rent Controller was fully justified in passing an order for eviction from the property in dispute in favour of the respondent.

7. Mr. S. M. Nurul Hasan lastly contended that the premises in dispute belongs to a class of buildings which are exempted from the operation of the West Pakistan Urban Rent Restriction Ordinance, 1959. In this connection he referred to a Notification of the Government of West Pakistan dated 16th March 1959. It reads as under:‑ "No. HG‑10‑2/59, 12th March 1959, (Gazette Extraordinary, 16th March 1959 In exercise of the powers conferred by section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to direct that the provisions of the said Ordinance shall not apply to buildings and rented land vested in the Central or Provincial Government." The learned counsel contended that since the property in dispute vested in the West Pakistan Government it was exempt from the purview of the West Pakistan Urban Rent Restriction Ordinance 1959. In support of his contention he relied on Dymock v. Showell's Brewery Company Limited (79 L T R 329). It was held in that case that if a lessee had sub‑let the premises held by him on lease to a tenant from year to year, this is an act whereby the demised premises became vested for part of the term in the sub‑tenant, within the meaning of the proviso, and that a forfeiture had been incurred. This decision has no bearing on the facts of the present case. In that case the learned Judges were interpreting a term in the lease deed and it was in that connection that the above observations were made. The Notification under consideration was considered by a Full Bench of this Court in Abdus Salam v. Waheeduddin (P L 15 1963 Lah. 517). It was held by the Full Bench that the scope of the notification under section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959, must be restricted to such property vested in the Central or the Provincial Government, which was leased out by them to tenants and to no other property. I am also of the view that it applies only to such buildings. The word "vest" in this Notification means only those properties which under the provision of any statute vested in the Central or Provincial Government. Qadeeruddin Ahmed, J., in the above case has referred to the various Articles of the Constitution, by which the property would vest in the Government. It seems to me that if any property is leased out to a Public servant or even to the Government the property cannot be said to vest in the Public servant or the Government. The Public servant or the Government may have a vested right in it but certainly the property cannot be considered to be vested in the Public servant or the Provincial Government.

8. After careful consideration of the arguments advanced on behalf of the parties, I am satisfied that both the Courts below were justified in holding that the appellant had committed default and was liable to be evicted. Mr. S. M. Nurul Hasan has asked that four months time may be granted to vacate the premises. The respondent has no" objection to it. I would, therefore, allow the appellant to vacate the premises in dispute within four months from the date of the passing of this judgment. On the expiry of this period he would be liable to be evicted from it.

9. In the result, subject to the above remarks the appeal is dismissed with costs. S.Q. Appeal dismissed.