P L D 1979 Peshawar 5 (PLP)

(4) Whether the defendant has made any improvement in the suit shop, if so, to what extent and with what effect? (5) Whether the plaintiffs are estopped to institute the present suit? (6) Whether the suit is bad for non-joinder and mis-joinder of parties? (7) Whether the plaintiff's owe an amount of Rs. 652 to the defendant? (8) Whether the defendant is defaulter of rent? (9) Whether the plaintiffs are entitled to the decree prayed for? (10) Whether the plaintiffs are in need of the suit shop for their own use? (11) Whether the defendant is damaging the condition of the suit shop? (12) Relief. . The trial Court decided issues 1 to 3 in the affirmative ; 4 to 6 against the defendants ; and 7 and 8 against the plaintiffs. On issue No. 9 the finding was that defendants were defaulters even though they had deposited the amount for the plaintiffs. The issue No. 10 was disposed of with the remarks that Rs. 1,080 was the rent due. Accordingly decrees for ejectment and recovery of Rs. 1,080 were granted in both the cases. On appeal the District Judge reversed the finding of the trial Court on the questions of arrears of rent and requirement for the personal use of the respondents. He held that the rent due at the rate of Rs. 30 per month had been deposited but the respondents needed the shops for their own use. He maintained the decrees for ejectment. It is contended on behalf of the petitioners that Rent Restriction Ordi nance was applicable and that the Court also had no powers to direct ejectment because notice for the termination of the tenancy under section I 11 of the Transfer of the Property Act has not been given. It is true that by Regulation I of 1973 promulgated by the Governor of N.-W. F. P. the West Pakistan Urban Restriction Ordinance, 1959, has been extended to the Tribal Areas of Chitral, Dir, Kalam, Swat and Malakand Protected Areas (Paragraph 3 refers) but it should not be overlooked had that the Regulation extended the Ordinance "subject to the modifications that the expressions Urban Area in the Ordinance shall mean such area as Govern ment by notification in the official Gazette declare to be an urban area". When the learned counsel for the petitioner was asked to show the notifica tion under the Regulation whereby Sakhakot where the dispute shops are located has been declared as an urban area, he conceded that there was no such notification adding of course that this was an urban area since before the promulgation of the Regulation and it continues to be so. This reply is evidently not satisfactory for the language of Paragraph 3 clearly contemplates special notification for the purposes of the application of the Rent Restriction Ordinance to a particular place. Unless there is the required notification it will be difficult to contend that the Ordinance stands extended even to pre-existing urban area. If the intention was that for a pre-existing urban arca notification might not be necessary or to such areas the Ordinance stood automatically extended the Regulation would have said so. The Transfer of Property Act has no doubt been extended td the Provincially Administered Tribal Area of Malakand by Regulation II of 1974 and it is true that section 111 of the Transfer of Property Act provides for determination of lease inter alia on the ground that a notice to determine the lease has been issued but this condition is not inflexible as a reference to section 113 will show that a notice to quit can be waived. In the instant case there is not an iota of evidence and it is not even alleged by the learned counsel for the petitioner that his client resisted the ejectment during the trial on the ground that notices under section 106 or 111 of the Transfer of the Property Act had not been given. There is no issue on the point and the views expressed by the learned District Judge on the point appear to be unexcep tionable. No other point has been pressed and rightly so for Rent Restriction Ordinance is not applicable and the land owners have full discretion to evict the petitioners, more so when there is evidence to show that they require the shop for their own use. In this view of the matter both the petitions are hereby dismissed in limine. S. A. H. Petition dismissed.