1980 PLP 1159 (CLC)

S. 4-Pre-emption, right of -Pre-emptor to possess superior right not only at time of sale and on date of suit but, held, must retain such right at decree stage. Ibrahim v. Muhammad Hussain P L D 1975 S C 457 ref. Zakaur Rehman Khan Lodhi for Appellant. S. A. Saeed for Respondent. Date of hearing : 7th October, 1979. Property No. S.' VI-S. S. 4'(House No. 4, Bhagwan Street No. 3-S-4, Church Road, Old Anarkah, Lahore) was disposed of between the appellant and the respondent by the order dated 31st December 1959 passed by the Deputy Settlement Commissioner, Lahore. A portion of the said property was transferred to the appellant being a claimant on the basis of possession of is wife. On 27th November 1964 the respondent brought an eviction application under section 13 of the Urban Rent Res triction Ordinance stating that by virtue of P. T. O. dated 31st December 1959/15th January 1960 the appellant had become a statutory tenant in respect of southern portion of the house and that the appellant was a tenant for courtyard, two rooms and one-half of garage, etc. in the ground floor of the said property. The respondent denied the relationship of landlord and tenant and also that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been served as him. These two issues were decided against the appellant by the learned Rent Controller vide his order dated the 4th of June, 1966. Consequent upon this order the learned Rent Controller vide his order dated the 15th June, 1966 ordered the appellant to pay arrears of rent from 31st December 1959 to 30th June 1956 (78 months) @ Rs. 5 p.m. amounting to Rs.390 on or before the 12th of July, 1966 and future lent. before 15th of the month at the same rate. This order was challenged in appeal and the learned Additional District Judge, Lahore vide his order dated 12th January, 1971 dismissed the appeal. The finding on the aforesaid two issues was upheld and also the order passed under section 13(6) of the said Ordinance. The present appeal was admitted on 4th February 1971 to consider the point that the petition for eviction having been filed on 27th November 1964 and the order to deposit of rent having been passed on 15th June, 1966, the appellant could not be ordered to deposit the arrears of rent from 31st December, 1959. On the last date of hearing the learned counsel for the appellant made an application dated 29th September, 1979 appris ing the fact that the P. T. O. on the basis of which the eviction petition was filed by the respondent had been cancelled under Deputy Settlement Commissioner Lahore-II's order dated 20th April, 1971. A copy of the same has been placed on record. It was further contended that Permanent Transfer Deed No. 7521 had been issued in the name of the appellant's wife Mst. Bilqees Khatoon on 14th September, 1978. The learned counsel for the appellant wants that this additional fact be taken note of and the appeal decided in terms thereof. A copy of this application was given to the respondent on 2nd October 1959 and he was at liberty to file the reply to the said application. He has not chosen to file a reply nor this fact has been contradicted. It has only argued by the learned counsel for the respondent that this appeal having been filed against interlocutory order, therefore, the appeal was incompetent, and as such, the question of taking note of the additional fact does not arise. The learned counsel for the respondent has relied on Ibrahim v. Muhammad Hussain (P L D 1975 S C 457), in which the Lordships of the Supreme Court have held that an interlocutory order passed under section 13(6) of the Urban Rent Restriction Ordinance was not appealable unless it is visited by the penalty of the eviction under section 15(1) of the said Ordinance. In view of the dictum of the Hon'ble Supreme Court this appeal in held to be not competent and therefore, the question of taking cognizance of the subsequent event does not arise. The learned counsel for the appellant has submitted that since the order of eviction had been passed therefore, he is left with no remedy. It is not for me to suggest the remedies but I feel that the order of the Rent Controller by which the appellant has been ordered to be evicted having become unenforceable, the same may be challenged before a competent civil Court or an objection to the same effect be taken before the Executing Court. As this is not the point before me, therefore, the appellant shall be at liberty to take any appropriate action under the law and the Court taking cognizance of the matter shall deal with it according to law. However, this appeal is dismissed as being not maintainable in view of the dictum of the learned Supreme Court quoted above, There will be no order as to costs. Appeal dismissed.