1979 PLP 76 (CLC)

2. In paragraph 5 of this application it was stated that -on 2-10-1968 the applicant informed the opponents under the name and style of Messrs J. B. Saeed & Co. that the aforesaid building has been transferred to him by the Settlement Department, Karachi under Permanent Transfer Order No. KCY-12985 dated 17-9-1968 and required the opponents to pay the rent to him". In the written statement a preliminary objection was taken that the applicant had not served the opponents with a valid and proper notice as contemplated by section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 and as such this application was not maintainable and liable to be dismissed with cost. In relation to the copy of the notice dated 2-10-1968 the specific averment was that it was not in conformity with the provisions of said section

30. It was further alleged in paragraph 10 of the written statement that the oppo nents were protected under the said section 30 and this ground (i.e. personal use) was not available to the applicant for six years from the date of the notice of transfer. The learned Rent Controller was pleased to frame preliminary issue as to the validity of section 30 notice which was answered against the tenant. It may, however, be noticed here that the tenant's attack on section 30 notice was exclusively confined to two matters, namely, that the notice did not state the rent payable by the tenant and that the notice was addressed to the firm Messrs J. B. Saeed & Co., and not to its partners who were on the date of the transfer in possession of the subject property. On merits the defence of the tenant was that the tenant had on several occasions tendered the rent to the applicant personally but he refused to accept the same so much so that on 11th April, 1969 the tenant sent a cheque for Rs. 150 to the applicant account of the rent for January to June, 1969 which the landlord failed to acknowledge and as such on 1-5-1969 the tenant remitted Rs. 150 by money order which was received by the landlord but thereafter the landlord again avoided and refused to accept the rent and the opponents remitted another sum of Rs. 150 by money order which was refused by the landlord, leaving the tenant no other alternative but to deposit the same in Court which they have been paying regularly. Consequently, it was pleaded that there was no question of default as alleged by the applicant.

3. The Rent Controller dismissed the application on the ground that the evidence indicated a tacit approval on the part of the landlord in the form of an implied agreement to accept rent in lump sum and having accepted rent in lump sum on two occasions he could not turn round and say that rent had to be paid on monthly basis at the end of each calander month. He further held that the landlord by "his own expressed implied conduct accepted rent in lump sum for three and six months and had already condoned the earlier defaults of the opponents/tenants in this regard" and the tenant having deposited the rent in pursuance of the application made by him on 14-2-1970 there was no default on the part of the tenant.

4. The First Appellate Court has reversed this finding for in its view it was not even the tenant's case that rent was payable periodically and merely because late payment of rent was condoned on one occasion only it cannot be said that any practice was established or there was such a conduct on the part of the landlord so as to lead the tenant to believe that the tenant may make payment of rent periodically.

5. Mr. M. G. Dastagir. the learned counsel for the appellants raises three contentions in support of this second appeal. His first contention was that section 30 notice was given on 2-10-1968 and within three months thereof the rent in arrears was paid and, therefore, no default committed by the tenant. Assuming that the tenant had thereafter committed default, the learned counsel contended that he was entitled to another notice under clause (1) of subsection (3) of section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 198 in the absence of which the Rent Controller would have no jurisdiction to proceed with the eviction application. His second contention was that rent was to be paid periodically in lump sum as was found by the Rent Controller and; thirdly, that the tenant is entitled to exercise of discretion in his favour for he was led to believe by the landlord that he will accept the rent in lump sum from time to time.

6. On the first question of want of second notice the learned counsel for the parties have referred me to several decisions and it will suffice to say that the question is not free from doubt. Be that it may, it is unnecessary for me to decide this question for as was pointed out by Mr. G. Raymond, the learned counsel for the landlord that no such plea was raised in the written statement nor was it so contended before the Rent Controller and it was only before the First Appellate Court that such a contention was raised. Now as regards the plea not having been raised Mr. Dastagir to begin with was at pains to point out that such a plea was implied in the preliminary objection raised by the tenant that the application was not maintainable. The preliminary objection. I am afraid has to be read as a whole and it related to want of a valid and proper notice under section 30 and the allegation in the written statement that the notice given by the landlord on 2-10-1968 was not in conformity with the said section

30. As noticed above, a preliminary issue relating to notice was framed and argued and it was not contended on behalf of the tenant that the proceedings were not maintainable by reason of want of a second notice. Mr. Dastgir then went on to argue that the Rent Controller does not have the jurisdiction to proceed with an eviction application unless and until it is proved that a notice under clause (1) of subsection (3) of section 30 was given which had not been complied with by the tenant within three months and it was, therefore, incumbent upon the Rent Controller to go into this question being a pre-condition to the exercise of his jurisdiction.

7. Mr. Raymond the learned counsel for the landlord invited my attention to a Division Bench decision of the then West Pakistan High Court reported in Mohammad Amin v. Jamshed Ali (P L D 1967 Lah. 856) in which the contention related to section 30 notice, more particularly that there was no averment in the eviction application by the landlord that he had given any such notice and the argument, therefore, was that since the notice was a pre-condition to the exercise of jurisdiction by the Rent Controller and the same was no: pleaded the eviction application ought to have been dismissed on that ground alone. Mr. Anwarul Haq, J., who wrote the judgment held that the jurisdiction of the Rent Controller cannot be denied merely on the ground that the factum of service of the two statutory notices was not 'mentioned in the application and went on to observe as follows :- "The provisions of Order VII of the Civil Procedure Code do not strictly apply to proceedings before the Rent Controller, but even if the principle embodied in clause (d) of rule 11 of Order VII is invoked, it is clear that on the same analogy, under Order VI, rule 6, C. P. C . an averment for giving as such a notice must be implied in the petition and it was for the appellant, under Order VIII, rule 2, C. P. C. to have alleged in his written statement the fact of non-service of these notices to show that the petition was not maintainable. In this view of the matter we are fortified by the decision in Mehdi Hassan v. Ghulam Muhammad etc. P L D 1964 Lah.

648. It seems to us, therefore, that although it would obviously be desirable for transferee-landlords to make specific mention that they had served the statutory notices on the tenant concerned, yet the jurisdiction of the Rent Controller is not automatically ousted simply on account of an omission to make such mention." He also invited my attention to the Supreme Court decision reported in Khair Mohammad v. Aijaz Hussain (1971 S C M R 77). In this case the Supreme Court view not allowing the tenant to raise the plea that notice under section 30 was not served upon the tenant for such a plea had not be taken in the trial Court and was sought to be raised for the first time before the High Court. Now if the giving of the notice was a pure question of law then I would have had no hesitation in agreeing with Mr. Dastgir that he was entitled to raise it for the first time in this Court. The question whether a notice was given is a pure question of fact and since want of a second notice was neither pleaded nor questioned in the evidence I do not think that the tenant can be allowed to raise that plea for the first time in first appeal In fairness to Mr. Dastgir I must refer to the decision on which he relied upon is Jiando Khan v. Hakim Muhammad Ishaq (P L D 1964 Kar. 61) 1t is not clear from the judgment whether or not tenant had taken specific plea of want of notice under section 30 though the same was pleaded on behalf of the landlord, the question was allowed to be raised, for, as according to the view of the Court it was a pure question of law arising upon fact either admitted or proved. To the same effect are the observations in a case reported in Nizam Din v. Mst. Nawab Bibi (P L D 1970 Lah. 923). The learned counsel also relied upon certain observations of Noorul Arfin, J., in a case reported in Muhammad Rizwan v. Ashiq Ali (P L D 1966 Quetta 11), but Dorab Patel, J. has in Safdar Ali v. Muhammad Ali (P L D 1974 Quetta 1) strongly depricated the practice of the tenants to contend for the first time at the Appellate stage that defect or rather the orders passed by the Rent Controller are without jurisdiction and relying on the Supreme Court decision reported in Mahmud Khan v. Muhammad Ahmad (1968 S C M R 351), in which case the tenant had challenged the Rent Controller's order fixing tentative rent on the ground that the respondent landlord had not served statutory notice under section

30. Reliance was placed on the rule that the Rent Controller's jurisdiction was dependent on the service of statutory notice but the tenant's appeal was dismissed by the High Court on the ground that this objection was being raised for the first time in second appeal which order was affirmed by the Supreme Court in the following words :- "The High Court refused to allow the plea to be taken for the first time in second appeal since for determination of the question further evidence would be required. The same point is raised at the hearing of this petition. If the point had been taken before the Rent Controller evidence could have there been received, and the point of the correct amount that could be demanded as rent could have been determined. It was too late to raise it before the High Court in second appeal." In relation to Arfin, J.'s judgment referred to above, Dorab Patel, J., was pleased to observe that in these circumstances the same required reconsideration.

8. Lastly, reliance was placed on Shabbir Ahmad v. Mst. Kabirunnisa and others (P L D 1975 S C 58) in which the observations are :- "The service of the notice is essential for the maintainability of an application for ejectment if such ejectment is sought on the ground of non-payment of rent, because the protection, created by the statute, is not available until a breach is committed after the receipt of the notice. Therefore, an ejectment proceeding can only be instituted after a period of three months has elapsed since the service of the notice of demand." In the above case, however, the tenant had opposed the eviction application on the ground that section 30 notice was not valid.

9. In the present case if P L D 1967 Lah. 863 is to be followed then the principles embodied id Order VI rule 6, C. P. C. and Order VIII, rule 2, C. P. C. will be attracted with the result that assuming that a second notice is necessary, giving of such a notice on the part of the landlord will have to be implied, making it necessary for the tenant in his reply to allege the fact of non-service of such a notice in order to show that the application was not maintainable. This decision read with in the context of the observations of the Supreme Court reported in 1971 S C M R 77 clearly lead me to the conclusion that in the absence of an express plea raised before the Rent Controller of want of a second notice it was not open to the tenant to raise the same for the first time before the First Appellate Court.

10. It was next contended on behalf of the landlord by Mr. Raymond that in order to enable the tenant to raise such a plea, assum ing that he can so raise it before the First Appellate Court, it was necessary for him to file cross-objections in the appeal filed by the landlord under Order XLI, rule 22, C. P. C. The argument proceeded on the basis that the First Appellate Court is not a persona designata but a principal Court of ordinary civil jurisdiction and under section 4 of the Code of Civil Procedure while hearing appeals the procedure to be followed is the Code of Civil Procedure. In support the learned counsel relied on a case reported in M/s. Yusuf of, Co. v. Mst. Rasheeda Begum (P L D 1975 Kar. 684) which approved the principles laid down in Venkatla Rao v. Satnarayanmurthi (A I R 1943 Mad. 698) namely, that a decree under Order XLI, rule 22, C. P. C. can be supported without filing cross-objection, by traversing any ground which the Court may have found against him. The case was cited with a view to show that according to the learned Judge Order XLI, rule 22, C. P. C. was applicable to proceedings before the First Appellate Court under the Rent Ordinance.

11. Mr. Dastgir on the other hand invited my attention to two decisions reported in Muhammad Daud v. Abbas Ali (P L D 1975 Lah. 699) and. Humayun Zutfiqar Ismail v. Hamida Saadat Ali (1968 S C M R 828). The first decision clearly supports him. In this case it was held that by reason of the fact that the Code of Civil Procedure has been made expressly applicable to second appeals under subsection (4) of section 15, while the First Appellate Court has been given power under subsection (3) of section 15 of the Ordinance to decide the appeal after sending for the record from the Controller and after giving the parties an opportunity of being heard and if necessary after making such answer as it thinks fit, a contrary intent was available that the Code of Civil Procedure was not applicable to appeals before the First Appellate Court. The Supreme Court decision also supports the learned counsel inasmuch as the observation therein is that subsection (3) of section 15 is a complete code of procedure in itself for the purpose of an appeal under that section. Mr. Raymond sought to distinguish this observation by stating that the case which was before the Court related to the period prior to the Amending Ordinance XXI of 1966 which made it clear that the First Appellate Court was not a persona designata and the observation should, therefore, be understood in that light. I am, how ever, inclined to think that notwithstanding that the First Appellate Court was then a persona designata the observation referred to is wide enough to conclude that subsection (3) of section 15 provides procedure in itself to be followed by the First Appellate Court. It is unnecessary to determine this question for the earlier ground that no plea regarding second notice had been raised is good enough for the disposal of the first contention raised on behalf of the tenant.

12. Coming to the second contention of the learned counsel it will at once be noticed that there was no averment in the written statement that the rent was to be paid periodically in lump sum which ought to have been pleaded for that would be a departure from the legal obligation o the tenant to tender rent at the end of every calendar month. It was contended that such practice can be inferred from the evidence. To be practice it must be sustained for a reasonable period of time and consciously adopted. In the present case only on one occasion the landlord accepted in lump sum the arrears of rent for the period 1-1-1969 to 1-5-1969. Previous such occasion was following the notice under section 30 but is of no consequence for the law gave time to the tenant to pay rent within three months. The practice, therefore, has not been established.

13. Finally, I come to the discretion to be exercised in favour of the tenant. The tenant admittedly did not offer to pay rent for the period 1st July, 1969 until 3rd February, 1970 and there is in the evidence of the tenant nothing at all by way of an explanation for this long delay of nine months. In these circumstances I am of the view that I will not be justified in exercising the discretion in favour of the tenant.

14. The result, therefore, is that this appeal is dismissed with cost and the tenant will have three months time to vacate the premises. Appeal dismissed.