1975 PLP 19 (SCMR)

ANWARUL HAQ, J.

‑This appeal, by the leave of the Court, is directed against an order made by a learned Single Judge of the Lahore High Court on 6‑11‑1972 in Second Appeal No. 82 of 1968, preferred by tire tenant against the appellate order of the learned District Judge of Gujranwala, whereby he upheld a preliminary order made by the Rent Controller on 3‑5‑1967 holding that the relationship of learned and tenant existed between the parties, and that the statutory notice order section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) had been served by the transferee on the tenant. The dispute relates to an evacuee shop bearing property No. B‑21‑IS‑177 situated in Adda Qilla Didar Singh, Hafizabad Road, Gujranwala. It was transferred to the appellant Ishrat Hussain through a provisional transfer order issued or, 31‑5‑

60. He served on the respondent a notice under section 30 of the Act on 6‑9‑65, and a second notice on 28‑7‑66, claiming rent at the rate of Rs. 6 per month from 31‑5‑60 to the 30th of June 1962, and at the rate of Rs. 30 per-month from 1‑7‑62 onwards in accordance with the latest assessment. On the respondent failing to pay any rent in response to this notice, the appellant filed an ejectment application in the Court of the Rent Controller, Gujranwala, on 4‑11‑

66. Apart from the ground of default in the payment of rent, the landlord also alleged that the tenant, namely, respondent No. 1, Subedar alias Suba, bad sublet the property to respondent No. 1, Subedar Rahim, and caused damage thereto. The application was resisted by respondent No. 1 by denying the existence of relationship of landlord and tenant between the parties, and also by contending that no notice under section 30 of the Act had been served on him. The allegations a‑, to subletting the property and causing damage thereto were also controverted. Finally, it was asserted that the property number of the shop in dispute had not beers correctly entered in the ejectment petition. On these pleadings the learned Rent Controller framed the following issues :‑-- (i) Whether there exists relationship of landlord and tenant between the petitioner Ishrat Hussain and respondent No. 1, Subedar, regarding property No. B‑21‑1 S.-177 ; and (ii) Whether the respondent was served with a valid registered notice as contemplated by section 30 of the Act. The first issue was merely of a technical nature, having a bearing on the correct number of the property in dispute. Tile learned Rent Controller found that the correct number was B‑21‑1S.‑177 and not B‑21‑1S.‑

177. He further observed that any clerical mistake as regards the number of the property in the notice served by the landlord had no bearing on its validity, on the second issue, he held that the service of the notice was not relevant to the allegations of subletting and causing damage to the property, and that the question of the validity of the notice with regard to tire point of default in the payment of rent would be considered on merits later on. He concluded his order by saying that the relationship of landlord and tenant was found to exist between the parties and, therefore, the petition shall proceed on merits. The learned Rent Controller passed of consequential order tinder sub section (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, directing the tenant to deposit rent at the rate of Rs. 6 per month from 31‑5‑60 to 31‑6‑62 and at the rate of Rs. 30 per month from 1‑7‑

62. He also directed that the arrears amounting to Rs. 1,890 should be deposited before the 27th of June 1967 and the future monthly rent at the rate of Rs. 30 per month should be deposited before the 15th of each succeeding month. Aggrieved by this order the tenant filed an appeal which was, however, dismissed by the learned District Judge of Gujranwala by his order dated the 11th of January 1968. He held that the notice served by the landlord under section 30 was legal, and that it was not necessary for the Rent Controller to frame a separate issue on the question of default, as it was an admitted position on behalf of the tenant that he had not paid any rent to the landlord since the transfer of tire property. Having failed in first appeal, the tenant filed a second appeal in the High Court which was accepted by a learned Single Judge by his order dated the 6th of November 1972, and the case was remanded to the Rent Controller for determining the validity of the notice and also for fresh calculation of the arrears of rent due from the tenant, after taking into account all the deposits which had been made by him consequent upon the orders of the High Court. The learned Judge also directed that "after the deficiency in court‑fee has been made up, appellants' possession over the property shall be restituted, as his dispossession was consequential to the order passed by the Rent Controller under subsection (6) of section 13 of the Ordinance, which order is being set aside". It may be stated that it appears that the tenant did not comply with the orders of the Rent Controller regarding the deposit of rent, with the result that his defence was struck off on 19‑3‑68 and he was ejected from the property on 9‑5‑1971. Leave to appeal was granted in this case to consider whether the order of remand passed by the High Court was justified in view of the finding recorded by the High Court itself to the effect that the grounds urged against the validity of the statutory notice under section 30 of the Act were not tenable. At the time of the hearing of the appeal, the learned counsel for the appellants has raised an additional pint, namely, that the defence of the tenant having been struck off on 19‑3-68, and that order not having been appealed against, no relief could be given to the tenant by the High Court after his eviction in May 1971. As the operation of the High Court order was suspended by this Court, the tenant is still out of possession. After hearing the learned counsel for the parties, we have reached the conclusion that this appeal has to be allowed. The absence of the relationship of landlord and tenant in respect of the property in dispute was pleaded by the respondent on two grounds :‑

(a) That the property number of the shop in the possession of the tenant had not been correctly indicated in the ejectment application ; and (b) That no valid notice under section 30 of the Act had been served by the transferee. The first plea was rightly rejected by all the Courts below, as being merely of a technical nature. As regards the second ground, a concurrent finding of fact has been recorded by the Rent Controller as well as the District Judge in first appeal, a finding which has not been disturbed by the High Court, that the statutory notice was duly served on the tenant by registered post acknowledgement due. The only question, therefore, is about the validity of the said notice. The notice was contended to be invalid on the following grounds :‑

(i) The matter of transfer was not finally settled ; (ii) The rent demanded was excessive and even for the period barred by limitation ; and (iii) The eviction petition was instituted before the expiry of three months of the notice. The High Court repelled of these objections by observing that a provisional transfer order having been issued in favour the petitioner before the Rent Controller, he was entitled to claim rent front the statutory tenant and move for his ejectment if necessary. It was observed that merely because on the Settlement side the question of the transfer of the property under appeal or revision, would not by itself make any difference to the accruing to the transferee. It was also held that the validity, of the notice of demand was not affected by the fact that excessive rent was demanded, and in this behalf reliance was placed on two decisions of the High Court reported as Man Rehmat Ali v. Khadeja Khanim (P L D 1967 Lah. 29) and Mazhar Ali Azhar v. Dr. Inzarul Islam Qureshi (P L D 1971 Lah. 104). Finally, it was conceded that the first notice of demand having been served on the tenant on 9‑9‑6 5 and the second on 28‑7‑66, and the appellant having made no payment of rent for more than three months from the date of the second notice, the ejectment application filed on 13‑11‑66 was fully maintainable. It will be seen that the learned Judge in the High Court had himself repelled all the objections raised by the tenant as to the validity of the notice served by the transferee under section 30 of the Act, and accordingly there was no question of the case being remanded to the Rent Controller for any fresh decision on this point. To this extent, therefore, the order of remand was clearly untenable. It appears, however, that the learned Judge was influenced by the fact that before assuming jurisdiction under section 13 (6) of the Urban Rent restriction Ordinance and directing deposit of arrears and of future rent the Rent Controller had also to decide the question whether the tenant was in default, for if he was not, then the relationship between the parties as not to be governed by the ordinary law for a period of six years from he date of the notice of transfer. The proposition is undoubtedly correct, but the learned Judge had himself observed that no rent had been paid within a period of three months after the service of the notice of demand as required by section 30 of the Act. Such being the case, it is not possible appreciate what further enquiry was needed in this behalf. The learned District Judge had also commented upon this aspect of the matter, by stating that the tenant had admitted that he had never paid any rent to the transferee. In these circumstances, no occasion arose for remanding the case to the Rent Controller for determining whether there had been default on the part of the tenant. The only point made by the High Court, to which no exception could be taken, was that as the application for ejectment had been filed on 13‑11‑66, the Rent Controller could not order the deposit of the arrears of rent for a period beyond three years of the date of the application, as ld by this Court in Ishfaqur Rehman v. Majid & Co. (P L D 1971 SC 766). However, this aspect of the matter could not detract from the fact that the tenant had not paid any rent at all since the service of the notice of transfer and demand, nor had he made any deposit in compliance with the order made by the Rent Controller under section 13 (6) of the Ordinance. As a result, we would accept this appeal, set aside the order of remand made by the High Court, and restore the order of the learned Rent Controller subject to the modification that arrears of rent beyond three years from the date of the institution of the ejectment application cannot be demanded from the tenant. Costs in the appeal shall abide the final result of the ejectment application. As the appeal stands disposed of on merits, we do not feel called upon comment upon the submission made by the learned counsel for the appellant that the defence of the tenant having been struck off by Controller's order dated 19‑3‑68, and he having been ejected on no relief could be given to him by the High Court by way of restitution of possession. Appeal accepted.