P L D 1976 Karachi 1173 (PLP)

Dates of hearing : 12th, 13th and 14th May 1976. This appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is directed against the order of the Additional District Judge, Karachi dated 29-1-1970 confirming the order passed by the Rent Controller dated 22-10-1968 whereby the appellant was ordered to be ejected from the premises on account of default in payment of rent.

2. Briefly, the facts are that the appellant Muhammad Ellias son of Abdul Rehman is in occupation of the eastern portion of the residential premises on the ground floor of building on plot No. K-2/9, Lyari Quarters, Nawabad, Karachi, on a monthly rent of Rs.

12. Muhammad Hassan son of Yakoob, the applicant before the Rent Controller, claimed to be owner of the eastern portion of the building comprising the premises in dispute. (He will hereinafter be referred to as "the respondent'). He died pending hearing of this appeal, leaving the respondents Nos. 1 to 8 as his legal heirs. On 30-11-1966, the respondent filed an ejectment application against the appellant under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as "the said ordinance"), on the ground that the appellant had defaulted in payment of rent of the premises for the period from 1-10-1963 to 31-10-1966 amounting to Rs. 444 and also for failure to pay the balance of arrears of rent of Rs. 230 then due for the prior period. The appellant resisted the application and, in his written statement, submitted that as there were nine other co-owners who had` inherited the property from Yakoob, namely his widow, four sons and four daughters, the application filed by the respondent in his name alone, was not maintainable and was liable to be dismissed. The appellant did not however, dispute that he bad fallen into arrears, but pleaded that it was not due to', any fault of his own, because since 1963, family disputes arose between the landlords, as a result of which; none of the landlords turned up to collect the rent and whenever he tendered the rent to one of them, the others seriously objected.

3. The Rent Controller framed the following issues : Issue No. 1-Whether the applicant is the sole owner of premises in dispute or there are 9 (nine) other owners also besides the applicant ? If so, what is the effect ? Issue No. 2.-Whether the opponent has committed default under section 13 of the Ordinance and is liable to be ejected ? Only the parties examined themselves in support of their respective cases. On the first issue, the Rent Controller held that the respondent had produced an extract from the Property Register (Exh. P-1) showing respondent as sole owner of the eastern building of the property, as well as notice from the Excise and Taxation (Exh. P-4) and payment receipt (Exh. P-5), both of which corroborated his sole ownership of the property. On the other hand, no evidence was produced by the appellant to the contrary. That even otherwise, the legal position was that an application by any one landlord for ejectment of a tenant was competent. On the second issue, the Rent Controller held that the appellant had admitted that the rent had been in arrears for the period claimed, and that he had even failed to clear the arrears due earlier, not only in his written statement but also in the statement of account filed by him and that the appellant had led no evidence whatever to prove his plea that the default in payment of the rent was due to the alleged family disputes between the landlords. In the result, he held that the appellant was a habitual defaulter and allowed the ejectment application of the respondent.

4. The appellant preferred an appeal to the III Additional District Judge, Karachi, who by the impugned judgment dated 29-1-1970 agreed with findings reached by the Rent Controller on both the aforesaid issues. He accordingly, dismissed the appeal.

5. Mr. Nuruddin N. Ramzan, learned Advocate for the appellant submitted that the evidence on record showed that upon the death of Yakoob in the year 1937, the eastern portion of the property in which the demised premises are situate, had devolved upon his legal heirs who were as many as eleven persons. But the extract from the Property Register (Exh. P-1) mentions only the name of the respondent as owner "by gift" without mentioning particulars of the gift. That, as no notice under section 13-A of the Rent Ordinance was served upon the appellant at any time informing him of the transfer of ownership of the property to the respondent, the appellant could not be deemed to have defaulted in the payment of rent. When faced with the objection that such a plea cannot now be raised in second appeal for the first time as it was neither pleaded by the appellant in his written statement, nor was any issue framed thereon, Mr. Nuruddin N. Ramzan submitted that being a point of law; it could be raised for the first time in Second Appeal on the basis of admitted 'or proved facts on record. In this connection, he referred to Muhammad Amin v. Jamshed Ali (P L D 1967 Lah. 856). In that case the appellant/tenant was permitted to raise the plea of lack of jurisdiction of the Rent Controller for the first time in second appeal. The lack of jurisdiction alleged was on the ground that there was no averment in the ejectmeat application of the respondent landlord that notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been served on the appellant. Inwarul Haq, J. (as he then was) after referring to the case-law, observed as follows : "It is clear, therefore, that if the question of jurisdiction raised in this case on behalf of the appellant can be decided on the basis of admitted or proved facts, already on the record, then the question should be permitted to be raised in second appeal, even though it was not specifi cally raised in the Courts below." But, as rightly submitted by Mr. M. Hussain Adil Khatri, learned Advocate for the respondent. this case is distinguishable on its facts. In the first place, unlike in the case cited, the non-service of notice under section 13-A of the said Ordinance, is not a plea as to lack of jurisdiction of the Rent Controller. As observed in Sabu Mal v. Kika Ran alias Heman Das (1973 S C M R 185), section 13-A deals only with one situation, namely, the question of default in the payment of rent. An ejectment application on the ground other than that of default in the payment of rent, is not at all affected by the non-service of notice under section 13-A. In the second place, the question of transfer by the alleged gift, as well as the question of notice, are not pure questions of law or of jurisdiction, but rather, questions of mixed fact and law. Nor is there any evidence on record from which the facts can be said to have been admitted or proved beyond controversy, ;and if the plea of non-service of the required notice is allowed to be raised now, the case would have to be remanded to the Rent Controller for further evidence. In similar circum stances, a plea of wart of section 30 notice under the aforesaid Displaced Persons Act, was rejected by the High Court of Lahore and a petition far Special Leave to Appeal was refused in Mahmud Khan v. Mirza Muhammad Ahmed (1968 R C M R 351). Therefore, in my opinion, the plea cannot now be permitted to be raised for the first time in Second Appeal. I would therefore, reject submission of Mr. Nuruddin N. Ramzan.

6. On merits also, both the lower Courts have given a concurrent finding of fact that the appellant had acknowledged that the respondent was sole landlord of the premises in dispute under the letter of acknowledgement dated 31-12-1961 (Exh. P-2). That latter stood proved by the admission of the appellant that he bad signed it. Therein, he had promised and acknowledged that the rent due against him until 31-12-1961 was Rs. 440 which he would pay in monthly instalment of Rs. 15 each from January 1962 along with monthly rent of Rs. 12 and that if any two months instalments remained unpaid, the owner of the house had the right to get the house vacated. The letter of acknowledgment appears to have been adressed to the respondent, who is described as owner of the property "malik makan" and who ha i also signed it and from whose custody it was produced. It is thus clear that the appellant had accepted the respondent as landlord much prior-to the amendment of the Ordinance in 1975 when section 13-A was first introduced. The acknowledgment also is an admission of default on the part of the appellant prior to introduction of section 13-A. Therefore, the right to eject the appellant for default had already accrued to the respondent prior thereto.

7. In view of the admission of default in payment of rent for the period claimed as stated earlier, and in view of the concurrent finding of the fact of default thereon reached by the lower Courts, Mr. Nuruddin N. Ramzan cannot rightly challenge this finding.

8. No other argument was pressed. In the circumstances and for the foregoing reasons, I find no force in this appeal. It is accordingly, dismissed with costs. S. Q. Appeal dismissed.