P L D 1967 Lahore 1025 (PLP)

2. The facts which gave rise to this case are these. Muhammad Ishaque, respondent, was transferred House No. 3, Prem Street No. 62, Krishan Nagar, Lahore, by an order of the Settlement authority, on the 24th of September 1960. The present appellant is in occupation of a part of the house. Muhammad Ishaque respondent, filed a petition before the Rent Controller, Lahore, for the ejectment of the appellant, on the allegations that he had sent a registered notice to the appellant who had refused to receive it, and that three months' period having elapsed since the despatch of the letter, no rent had been paid to him. The respondent claimed that he had in his posses sion the notice which had not been received by the appellant. He did not attach with the petition that notice or a copy thereof. It was also alleged that the appellant was damaging the building.

3. The appellant in his written statement denied that he had received any notice or that he had refused to receive any notice. He alleged that the petition for ejectment deserved dismissal for lack of notice. It was also denied that the property had been trans ferred to the respondent, and on the basis of this denial, it was alleged that the Rent Controller had no jurisdiction to proceed with the case.

4. By an application dated the 6th o f February 1963, the appellant amended his written statement and admitted therein that the property had been transferred to the respondent, and that according to law he had become a tenant under him. The learned Rent Controller, thereupon, passed an order on the 12th of March 1964, directing that since the tenancy was admitted, the appellant should deposit rent in terms mentioned in para 1 of this judgment.

5. Aggrieved by the order of the Rent Controller, dated the 12th of March 1964, the appellant filed an appeal in the Court of Sardar Muhammad Amir Akbar Khan, Additional District Judge, Lahore (Appellate Authority under Ordinance VI of 1959). A contention was raised before the Appellate Authority that in the absence of a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Rent Controller had no jurisdiction to make the order under appeal. This contention was repelled on the ground that an order under section 13(6) of the Ordinance could be passed if the relationship of landlord and tenant existed between the parties. The Appel late Authority observed that the tenancy had been created by the operation of law and the order under appeal passed by the Rent Controller for deposit of rent was competent. The appeal was consequently dismissed. The appellant then filed the present appeal in this Court.

6. Mr. Ahmad Hasan Khan, the learned counsel for the appellant submitted that in the absence of any proof on the record that a notice under section 30 of Act XXVIII of 1958, had been served on the appellant, the Rent Controller had no juris diction to pass an order under section 13(6) of the Ordinance. He submitted that, in any case, the question of jurisdiction should have been first decided and the Court before passing the impugned order should have determined whether it could or could not take the cognizance of the matter. He, in this connection, referred to the case of Akhtar Ali Pervaiz v. Altaf‑ur‑Rehman (P L D 1963 Lah. 390), where a Full Bench of this Court held that the deposit of arrears of rent by a tenant should not be ordered where the tenant objects to jurisdiction of Rent Controller; such objection being based on the non‑existence of the relationship of landlord and tenant. The Full Bench observed that the question of jurisdiction should be` decided first.

7. Dealing with the observations of the Courts below with regard to the admission made about the existence of the relation ship of landlord and tenant between the parties, the learned counsel for the appellant submitted that the provisions of section 30 of the Act, are imperative and as a matter of public policy a person cannot be permitted to contract himself out of these provisions of law. He, in this connection, referred to the case of E. A. Evans v. Muhammad Ashraf (P L D 1964 S C 536 ). It was held in that case that notice contemplated under section 300)(6) or under section 30(3) of .the Act, was not an implied notice or informa tion received aliunde. On the other hand, the law required that there must be an express notice in writing and served in the manner prescribed. On the basis of these observations of the majority, the learned counsel submitted that the admission in the amended written statement with regard to the creation of statu tory relationship of landlord and tenant did not override the specific and imperative provisions of law. The learned counsel for the appellant specifically referred to the following portion of the judgment:‑(page 538). "It is difficult to accept upon the wording of this section that such a notice could even be implied notice or information received aliunde. In the face of the language of the proviso, which requires that the notice should be served `by registered post (acknowledgment due),' such an interpretation is not possible. To hold that, notwithstanding such clear and unam biguous words, even implied notice would be sufficient would be to render the words `by registered post (acknowledgment due)' in the proviso redundant, which cannot be done. Every word in a statute has to be given a meaning and the only (1) P L D 1963 Lah. 390 (2) P L D 1964 S C 536 meaning that these words are capable of bearing is that express notice in writing must be given in the manner prescribed. The scheme of the section, furthermore, appears to be to leave nothing to doubt; hence even the manner of the service of the notice is clearly provided for and the extent of the protection accurately defined. Even the circumstances in which the tenant would be deprived of this protection have been specified and not left in doubt. Furthermore, subsection (3) firstly provides that a tenant must pay or tender rents payable under the said section to the transferee within three months from the date of the receipt of a notice of demand sent to him again 'by registered post (acknowledgment due)'. Secondly, since the protection in a personal protection, the tenant must not sublet or otherwise part with the possession of the premises and thirdly, he must not commit acts of waste and must not be in possession of similar premises in the same town or city. It is thus clear from the language of the section that the notices contemplated there under must be of two kinds; (1) giving intimation of the transfer and (2) containing a demand. It is, of course, possible that both these notices may be combined into one, as, for example the same notice while giving intima tion of the transfer might also demand the rent and or arrears of rent, if any, due for any period after the transfer. But where no such combined notice has been issued, it would, in order to take a tenant out of the protection from eviction granted to him by proviso (b), be necessary to serve upon him a second notice of demand as contemplated by clause (1) of subsection (3). It may not be necessary to serve such a notice of demand each time there is a default but, at any rate, at least one notice of demand has of necessity to be served to deprive the tenant of the protection." The learned counsel for the appellant also referred to the case of Muhammad Shafi v. Abdul Hayee (P I.D 1965 Lah. 681), wherein it was observed that the Rent Controller could have jurisdiction only if it was proved that the transferee had given a notice and the tenant had failed to pay or tender the amount of rent within three months. The Rent Controller has, therefore, to determine this issue before he could direct payment under section 13(6) of the Ordinance.

8. The learned counsel for the respondent relied upon the case of Mehdi Hassan v. Ghulam Muhammad, etc. (P L D 1964 Lab. 648). It was held in that case that the Rent Controller can order a tenant to deposit the rent only in case where either it is admitted that he is a tenant of the petitioner or when the relationship having been disputed, it is proved and decided that the respondent was in fact a tenant. I am afraid, these observations are not helpful to the respondent. It has been held in the same case that a tenant was entitled to safe‑guards and protections afforded by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, notwithstanding any agreement to the contrary. A rent deed which was inconsistent with the provisions of section 30 was held ineffective and without lawful authority. The observations relied upon by the learned counsel, therefore, would apply in a case where the requirements of law under section 30 has been fulfilled. Service of notice under the above section in the pre scribed manner is a sure qua non for entertainment of a petition, ejectment against a tenant, who is occupying a building transferred to a displaced person.

9. I may also observe here that in para. 3 of the petition for ejectment, there is only a vague reference to a notice and it is not at all clear whether the alleged notice, even if sent, was a notice as contemplated by clause (b) of the proviso to sub section (1) of section 30, or a notice of demand as contemplated in clause (i) of subsection (3) of the same section. Under the law two notices have to be sent, but there is no prohibition against combining them into one. It has to be shown, however, e that the notices contemplated by section 30 were sent to the tenant and were served in the prescribed manner. The plea of the appellant, therefore, prevails and the appeal has to be allowed.

10. I may mention that I heard this appeal on the 22nd of February 1967, and had indicated that I would accept the appeal and remand the case back to the Rent Controller for striking a preliminary .issue regarding the service of notice. However, while dictating the judgment I discovered that subsequent to the passing of the impugned order, the Rent Controller had, on the 8th of April 1964, ordered the ejectment of the appellant for his failure to deposit the rent for the month of April 1964, before the 5th of March 1964. The appellant deposited the rent one day later, i.e., on the 6th of March 1964. This fact was not brought to my notice during the arguments and, therefore, I fixed this case for rehearing on the 28th of February 1967, in order to find out as to what would be the effect of my order of remand on the subsequent order against which no appeal has been preferred. The learned counsel for the appellant submitted that Since the order from which the subsequent order flowed had been Found to be without jurisdiction, the subsequent order itself will be rendered a nullity and there was no need for the appellant to take any formal proceedings to have it set aside. He in this connection, referred to the case of Yousaf Ali v. Muhammad Aslam Zia (P L D 1964 S C 104), where the Supreme Court has observed that if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole aeries of such orders together with superstructure of rights Obligations built upon them, must fall to the ground, because such Orders have as little legal foundation as the void order on which they are founded.

11. The learned counsel for the respondent, however, asserted that it was necessary for the appellant to have formally 'roved for setting aside the subsequent order and his failure to 'to so would render the present appeal infructuous. He was, however, not able to cite any authority to support his contention.

12. I am, therefore, inclined to the view that in view of my findings with regard to the impugned order, the subsequent order dated the 8th of April 1964, passed by the Rent Controller, is of no legal value. The case will, therefore, go back to the Rent Controller for striking an issue on the preliminary ground as to whether notices as required by law have been sent to the appel lant and whether the Court has or has not the jurisdiction to hear C the case under Rent Restriction Ordinance, 1959. The parties will bear their own costs throughout. A. H. Appeal allowed.