P L D 1976 Karachi 202 (PLP)

The short question of law, in this second appeal which has been raised and on which learned counsel for the parties have addressed me, is whether the tenant can plead the bar of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as Act XXVIII of 1958) against his failure to comply with an order for deposit of tentative rent.

2. The factual background of the case may be briefly stated. The tenement in dispute is a shop bearing No. SB 4/58.G/1 situated at Belkins Street, Saddar, Karachi, which was transferred under the Settlement Scheme to the respondent's father Atta Hussain Nisar. through a P. T. O. dated 3-3-1962 and it appears that on the transferee's death the respondent and other heirs succeeded to the ownership of the same by inheritance. On 30-4-1969, the respondent for himself and as attorney for the remaining heirs instituted an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, on two grounds, firstly, that the tenant had committed default by not paying rent for the tenement in spite of oral demand as well as registered notices last of which was sent through an advocate on 26-12-1965, which was refused by the appellant ; secondly that the appellant had committed acts which have materially impaired the utility of the premises. In response to the notice the appellant appeared before the learned Rent Controller and filed his written statement and besides controverting the factual allegations made in the application for ejactment, also raised the plea of non-maintainability of the proceedings. He further expressly denied the receipt of the notices allegedly served upon him and contended that he had no knowledge with regard to the transfer of the property in favour of the respondent's father. On 22-8-1969, learned Rent Controller passed an order under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 directing the appellant to deposit rent arrears from 30-4-1966 to 31-1-1969 at the rate of Rs. 13 per month within a period of one month and further directed him to deposit current and future rent before 15th of every calendar month. Although the appellant duly deposited the arrears of rent in terms of the said order, the admitted position is that the appellant failed to comply with the afore said order in regard to the future rent, inasmuch as, the rent for the month of August, 1969, was not paid at all and for the months of October and November, 1969, the rent was deposited on 16-10-1969 and 18-11-1969 respec tively. Accordingly, on 28-11-1969, the respondent moved the Rent Controller for striking off the defence of the appellant and in response to that the appellant advanced the plea of his illness. But the learned Rent Controller rejecting the said plea passed an order dated 26.3-1970 striking off the defence of the appellant and directing him to put the respondent in possession within two months. 2-A. Aggrieved by the aforesaid order the appellant preferred an appeal before the District Judge, Karachi and challenged the order of ejectment mainly on the legal ground, that in the face of denial by the appellant of the service of notice, as required by section 30 of the Act XXVIII of 1958, the learned Controller had no jurisdiction to pass the tentative order for deposit of rout without fife; deciding the preliminary issue regarding the service of notice. However, learned IIIrd Additional District Judge, Karachi, before whom the appeal was finally placed for disposal rejected the contention by taking the view that the plea of non-service of notice under section 30 of Act XXVIII of 1958 was waived by the appellant. In this regard, the learned IIIrd Additional District Judge relied upon the fact that the appellant himself had moved an application dated 20-5-1969, much before the order of tentative rent, seeking the deter mination of the period for which be would be liable to pay the rent and the rate of rent, on the basis of facts alleged therein. On this view of the matter, the appeal of the appellant was dismissed by the IIIrd Additional District Judge, Karachi, and now the appellant has filed this Second Appeal against that judgment.

3. I must express my deep regret about the laxity with which the pleadings of the parties have been drafted although they were represented by Advocates. The application for ejectment does not, in specific terms, plead the service of notice as required by section 30 of Act XXVIII of 1958 but leaves the matter at only alleging demand of rent through registered notices. Likewise in the written statement also no specific plea based on non-service of the statutory notice has been taken although, as stated above a plea has been taken to the effect that the appellant had no knowledge regarding the transfer of the property in favour of the respondent's father. However, I find from the record of the Rent Controller that on 16-9-1969 draft issues were submitted on behalf of the appellant which contained the following two issues; (1) Whether service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, XXVIII of 1958 can be said to have been served on the opponent? (2) Whether any notice under section 13-A, West Pakistan Urban Rent Restriction Ordinance, 1959 was served on the opponent?" Thus, it is quite clear that before the final order striking off the defence of the appellant the specific issues touching the jurisdiction of Rent Controller were sought to be raised before the Rent Controller.

4. In support of this appeal, Syed Hassan Asghar Rizvi, learned counsel appearing for the appellant contended that the issue with regard to the jurisdiction of the Rent Controller to entertain the ejectment proceedings having been raised by the appellant, it was incumbent upon him to frame the preliminary issue on the question of service of the statutory notice under section 30 of the Act XXVIII of 1958. He further argued that in the absence of such determination, all further proceedings taken by the learned Rent Controller including the tentative order for deposit of rent were without jurisdiction and a nullity in law. Consequently, the order of ejectment founded on such illegal and void order was not sustainable in law. Learned counsel placed reliance on the case of Akhtar Ali Pervalz v. Altaful Rehman (P L D 1963 Lah. 390), Muhammad Shafi' v. Abdul Hai (P L D 1965 Lah. 681) and Mian Rahmat Ali v. Khadija Hakim (P L D1967 Lah. 856). The first mentioned case is the celebrated decision of the Full Bench of the West Pakistan High Court where, in similar circumstances the tenant had denied the relationship of landlord and tenant on the ground of invalidity of notice under section 30 of Act, of 1958 and it was held that the provisions contained in subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 seem to be attracted only when proceedings in fact fall under' section 13 and not when they only purport to allege to fall under that section. It was further held that if on whatever ground it may be, one of the parties to the proceedings under section 13 of West Pakistan Rent Restriction Ordinance claims that those proceedings cannot validly be sustained or proceeded with under section 13, it will be incumbent upon the Rent Controller to decide that issue before he can exercise any of the powers mentioned in that section. The judgment further lays down the procedure to be adopted by the Rent Controller in. such an eventuality where the jurisdiction of the Tribunal is challenged and it has been held that such objection must be treated as a peliminary objection and resolved before taking further action. In the second mentioned case, the following pertinent observations were made at page 684 of the report: "Now that a relationship of landlord and tenant was created between the parties under clause (1) of section 30, by itself, could not warrant an action under clause (6) of section 13 against the appellant. The Rent Controller would ask the tenant to deposit the rent only if he had jurisdiction in this case. He could have jurisdiction only if it was proved that the transferee had given notice and the tenant had failed to pay or tender the amount of rent within three months. The Rent Controller had, therefore, to determine this issue before he could direct payment under clause (6) of section 13." In the third mentioned case, the first two cases cited were followed and the same dictum was laid down. Thus the consensus of opinion has consistently been that in case of contest with regard to the service of the statutory notice, the issue hag to be decided as a preliminary issue, before the Rent Controller can proceed further to pass an order under subsection (6) of the section. Accordingly, I have no doubt in my mind that in this case also, it was the duty of the learned Rent Controller, under the law to have first disposed of the aforesaid preliminary issue.

5. Mr. Kazi Mehfooz Ahmed, appearing for the respondent, however strongly relied upon the application made by the appellant on 20-5-1969 referred to in the judgment of the first Appellate Authority. He contended that by this application the appellant had waived his plea with regard to the jurisdiction of the Rent Controller. But I do not find any substance in the contention. As rightly pointed out by Syed Hassan Asghar, relying on the case of E. A. Evans v. Muhammad Ashraf (PLD 1964SC536) that consequences of non-compliance with the requirements of section 30 sub. section (1) proviso (b) of Act 28 of 1958 cannot be wiped off by waiver on B the part of the tenant and give jurisdiction to the Rent Controller to entertain ejectment proceedings. In the aforesaid Supreme Court case, their Lordships considered the question whether the occupant of an evacuee house could contract or apt out of the protection given to him by section 30 of Act 28 of 1958 and held that the provisions of that section, were not intended to protect private rights but were designed as a matter of public policy, to give general protection to the occupants not only as to irrevocability for a reasonable period but also as to occupation upon payment of reasonable rent. It was, further, held that a person protected by section 30 of the said Act could not validly contract out of that protection, for, such a contract would be void being against public policy. Applying the principle enunciated in the said precedent case of the Supreme Court, I am of the view that the learned IIIrd Additional District Judge misconceived the legal position in holding that the plea of maintainability for want of jurisdiction by the Rent Controller, was waived. The stage for framing of issues had not yet arrived, so that it could be said that any issue arising out of the pleadings was by implication waived. But in this case as stated above, the draft issues sub mitted on behalf of the appellant specifically raised the issue in question. Further, it is well settled, that consent cannot confer jurisdiction.

6. Replying to the argument advanced by the learned counsel for the appellant, Mr. Kazi Mehfooz Ahmed, learned counsel for the respondent submitted that the service of statutory notice was not necessary as the appellant was otherwise aware of the fact of transfer. But this contention has not impressed me because the mode of service of a notice under section 30 of Act 28 of 1958 is clearly prescribed there, to be through registered post. It was held in the last mentioned case of the Supreme Court that the language of the section clearly contemplates an express notice and that implied notice or information received aliunde cannot be sufficient compliance with the section. It was next contended by the learned counsel for the respondent that having committed breach of the tentative order under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, the tenant was not entitled to be heard, even with regard to the question of jurisdiction and would totally lose the right of defence, even if that be based on the fundamental question of jurisdiction. For this purpose he relied on cases reported in P L D 1969 S C 424, P L D 1975 S C 457, P L D 1971 Lah. 107, and P L D 1967 Lah.

29. But I find nothing in the cited case3 in support of the contention of the learned counsel. None of the cases has dealt with the proposition of law canvassed by the counsel. It is quite obvious that the burden of the authoritative opinion is that the Rent Controller cannot pass an order under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance in a case where his jurisdiction is challenged. In the instant case also the respondent could invoke the jurisdiction of the learned Rent Controller for the purpose of evicting the appellant only if in consequence to a notice served by him under section 30 of Act 28 of 1958, the appellant failed to pay the rent within the prescribed` period of 3 months. Therefore, if the service of such notice was denied and was in issue, obviously the question related basically to the jurisdiction of the Rent Controller.

7. For all the above reasons I am convinced that the appellant cannot be ejected from the premises in consequence of his failure to comply with the terms of the order for deposit of tentative rent and can plead the bar of section 30 of Act XXVIII of 1958 in his defence. But the question as to what' would be the appropriate order to be passed in the present appeal has to be considered. If the order for deposit of tentative rent itself is set aside and the case remanded to the learned Rent Controller to frame preliminary issue and determine the same, in the event of the respondent succeeding in proving the service of notice of section 30 of Act 28 of 1958. the appellant will have gained an unjustified advantage in so far as his non-compliance with the original order for deposit of tentative rent will be wiped off, for no fault of the respondent. For these reasons I find no justification to set aside the order for deposit of rent passed by the learned Rent Controller dated 22-8-1969, at this stage. This conclusion is further re-inforced by the consideration that it has already taken more than six years to come up to this stage and if the proceedings are, recommended from almost the beginning the interests of the respondent are likely to suffer.

8. I am, therefore, of the opinion that the order of eviction passed against the appellant could only be held invalid in the light of the finding on the issue with regard to service of notice, which could be remitted for trial to the Rent Controller. The appeal could then be disposed of after receiving the finding on the issue from the Rent Controller. In my view such procedure would be according to law and no exception could be taken to it. In the Full Bench case of Akhtar Ali Pervaiz mentioned above also, their Lordships after holding that it was incumbent upon the Rent Controller to decide the preliminary issues with regard to the jurisdiction first, did not, Ipso facto, strike down the order of eviction following the default committed by the tenant in the observance of the order under West Pakistan Urban Rent Restriction Ordinance but proceeded to examine the question whether challenge to the jurisdiction was justified or not. After examining the question their Lordships held that the rule laid down by them was not attracted in that case as the notice was in fact validly served on the tenant. Accordingly, respectfully following procedure adopted by their Lordships in the cited case, and specially in view of the particular circumstances of this case as mentioned above, I am of the view that in this case it would be proper to set aside the judgment and order passed by the learned III Additional District Judge, Karachi and remand the case to the Court with the direction that the issue with regard to service of statutory notice be remitted to the Rent Controller for trial and decision.

9. In the result, I would allow this appeal and set aside the judgment and order passed by the III Additional District Judge, Karachi, dated 4-11-1970, and would remand the case to him for disposing of the appeal according to the procedure laid down in Order XLI, rule 25, Code of Civil Procedure. When the records reach the Court of the III Additional District Judge, Karachi, the appeal shall be re-admitted under its original number. The Court should pass an order according to Order XLI, rule 25, Code of Civil Procedure and refer the issue set forth below to the Rent Controller, with the direction to take additional evidence in regard to that issue. After the Rent Controller has tried the issue the additional evidence together with his findings thereon and the reasons therefor will be returned to the Court of III Additional District Judge, Karachi, and then the latter Court will dispose of the appeal according to law. The issue to be referred to the trial Court is as under :

"(1) Whether the applicant served notice under section 30 of the Dis placed Persons (Compensation and Rehabilitation) Act, 1958 ? If not to what effect?"

10. With these directions the appeal is disposed of as above with costs. S. A. H. Appeal allowed.