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Second Appeal from Order No. 153 of 1961, decided on 2nd November 1964.

S. 13 (6) read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30 (3) (i)‑Relationship of landlord and tenant created under S. 30 (3) (i) of Act cannot, by itself, warrant action under S.13(6) of Ordinance‑Rent Controller has jurisdiction to direct payment of rent only if it is proved that transferee had given notice and tenant had failed to pay rent within three months‑Petition for ejectment filed before lapse of three months from receipt of notice‑Held, premature‑Order of Rent Controller directing payment of rent, in circumstances of case, without jurisdiction.

The fact that a relationship of landlord and tenant was created between the parties under clause (i) of section 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958, by itself, could not warrant an action under clause (6) of section 13, West Pakistan Urban Rent Restriction Ordinance, 1959 against the appellant. The Rent Controller could ask the tenant to deposit the rent only if he had jurisdiction in the case. He could have jurisdiction only if it was proved that the transferee had given a 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. Where the notice was given on the 7th of March and the application for ejectment was filed on the 25th of March and three months had obviously not elapsed between the receipt of notice and the filing of the petition:

Held, that the tenant had not contravened the provisions of sub‑clause (i) of clause (3) of section 30. The petition was, therefore, premature. The Rent Controller had no jurisdiction in the case at all. The order passed by him was one without jurisdiction and hence a nullity.

Aziz Ahmad Bajwa for Appellant.

Qazi Muhammad Ashraf and Gul Muhammad for Respondent.

Dates of hearing: 13th, 14th May, 19th October and 2nd November 1964.

The appellant is in possession of Shop No. P. 222 Bhawana Bazar, Ward No. 6, Lyallpur, of which the respondent is the transferee under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The respondent by a registered notice, dated the 6th of March 1961, informed the appellant of the transfer in his favour and stated that the Municipal Committee 'has assessable the annual rent of the shop as Rs. 1,512. He, therefore, asked the appellant to pay a sum of Rs. 1,008‑within fifteen days as rent of the premises for ‑a period from the 8th of July 1960, to the 7th of March 1961. It was also indicated in the notice that in case of default by the appellant he would render himself liable to legal proceedings. The appellant acknowledged the receipt of this notice by his letter dated the 20th of March 3960. He stated that he was an old tenant of the shop under the non‑Muslim and had been paying Rs. 8 as its rent to the Rehabilitation Department. He showed his ignorance about the assessment of the Municipal Committee. He further expressed his willingness to pay rent to the appellant at the rate of Rs. 8 p.m. and informed the respondent that he had remitted Rs. 64 as the rent for eight months. The reply of the notice was not filed with the petition and the learned counsel for the respondent, however, voluntarily produced it before me to be placed on the record. The respondent admitted the notice to be his and had no objection to the notice being placed on the record.

The respondent filed a petition on the 25th of March 1961, under section 13 of the Ordinance VI of 1959, against the appellant for ejectment on the ground that he had failed to pay the rent for eight months at the rate of Rs. 126 from the 8th of March 1960, to the 7th of March 1961. He filed a copy of the assessment of the Municipal Committee for the year ending 1960‑61. In it the annual rental value of Shop No. P. 222 was assessed at Rs. 1,512 with monthly rent of Rs. 126. The appellant tenant in his written statement, dated the 25th of April 1961, reiterated what he had earlier, alleged in his reply to the notice and said that the rent of the premises was Rs. 8 p.m. The Rent Controller acting under clause (6) of section 13 of the Ordinance determined the rent at Rs. 126 p.m., and ordered the appellant to pay to the respondent the arrears of rent amounting to Rs. 1,512 before the 6th of June 1961. He further directed the appellant to pay future rent to the respondent before the fifth of each month. The. appellant failed to pay the rent and was ordered to be ejected. The appeal preferred by him was dismissed by the learned District Judge on the 15th of September 1961. This is a second appeal.

2. The learned counsel for the appellant attacked the orders of the District Judge and the Rent Controller and argued that the orders of ejectment passed 'against the appellant were without jurisdiction, and that the determination of rent on the basis of the municipal assessment for the year 1960‑61 was not valid.

As to the second contention that the assessment for the year 1960‑61 was without lawful authority, the case of the petitioner is that the Municipal Committee had no power of re‑assessment because the provisions empowering them to make re‑assessment were contained in sections 65 to 68 of the Municipal Act, 1911, and after the repeal of the Act by the Municipal Ordinance (Municipal Administration Ordinance X of 1960) of 1960, no corresponding provision was made in the latter statute and the municipal committee was again empowered on the 1st of July 1962, by West Pakistan Municipal Committees (Buildings and Land Tax) Rules, 1962, to make re‑assessment. On these premises it was urged that the re‑assessment made for the year 1960‑61 was without any legal basis and was, therefore, of no consequence and that the liability of the petitioner to pay rent could be determined only with reference to the earlier assessment. The point raised is worth consideration, but it is not clear from the record as to when the assessment for the year 1960‑61 made, whether it was before or after the repeal of Municipal ACS; 1911. The fact, no doubt can be easily ascertained by recording additional evidence under Order XLI, rule 27, Civil Procedure Code, and this being necessary for effectively deciding the appeal, I would have done it, but I did not think it necessary to do because the appeal merited to be accepted on other grounds.

3. The objection taken on behalf of the appellant that the Rent Controller had no jurisdiction to pass an order under clause (6) of section 13 is a formidable one. Admittedly, the appel lant is in possession or the premises which have been transferred to the respondent. By virtue of section 30 (1) of Displaced Persons (Compensation and Rehabilitation) Act, 1958, the appellant will be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer. It was lawful for the respondent to charge rent on the basis of the latest assessment of the Municipality (this provision has since been changed by Act XII of 1963, whereby the transferee can charge a rent on the basis of the latest assessment carried out by the Municipality for other properties in the locality generally). Under proviso (b) to clause (1) of section 30, the appellant had a right to stay in the premises for three years (it is now six years by the amendment of 1963). Proviso (b) to clause (1) of section 30 reads as follows:‑‑

"It shall not be lawful for the transferee to eject ‑ such persons from the house or shop, 'industrial concern, cinema house or printing press for a period of six years from date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment‑due)."

The notice in this case was not given by the transferee within one month of the transfer. It was given on the 7th of March 1961. That being so, the prescribed period will run against the appellant from the date of such notice. It, however, does not mean that such a tenant cannot be ejected before the expiry of six years. He renders himself liable to ejectment in certain cases an action can be taken against him under clause (4) of section 30 which reads as:‑

"On the expiry of the period of three years, mentioned it proviso (b) to subsection (1), or on the contravention of any of the provisions of subsection (3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship."

It is thus clear that although‑a statutory relationship of a landlord and a tenant is created between a transferee of evacuee property and its occupant, but none of them can resort to ordinary law for regulating their relationship as such, unless one of the condition specified in clause (4) of section 30 is proved to exist. The prescribed period of six years has not expired and it still subsists. The ordinary law, therefore, could be invoked by the respondent only if the tenant had contravened any of the provisions contained in subsection (3). The subsection reads as:‑

"(i) who has not, within three months from the date of receipt of a ‑notice of demand sent to him by the trarsferee by registered post (acknowledgment‑due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer ;" or

"(ii) who after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press, or any part thereof, or has committed acts which are destructive of or injurious to the property."

The petitioner has not alleged anything in his petition as may attract the application of any of the provisions .of clause (3) of section 30. All that was alleged against the appellant in the petition was that he had not paid rent for eight months from the 8th of July 1960, to the 7th of March 1961. The non‑payment of rent for any period, howsoever long, does not attract the application of the ordinary law to regulate the relationship as a landlord and tenant between the transferee and the occupant. It is only after a notice of demand is given to the tenant and he fails to pay or tender within three months the amount of rent or arrears of rent due for any period after the transfer that the transferee can apply under Ordinance VI of 1959, for the ejectment of his statutory tenant. The tenant can make payment or tender the amount of rent within three months from date of receipt of a notice of demand. If he does so, the Court, under the ordinary law, cannot assume jurisdiction. The ordinary law comes into operation only if the occupant fails to pay the amount within three months of the receipt of notice. It was, therefore, necessary for the respondent to establish this fact before the Rent Controller could assume jurisdiction in the case.

6. The fact that a relationship of landlord and tenant was created between the parties under clause (i) of section 30, by itself, could not warrant an action under clause (6) of section 13 against the appellant. The Rent Controller could ask the tenant to deposit the rent only if he had jurisdiction in the case. He could have jurisdiction only if it was proved that the transferee had given a 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 present case, the notice was given on the 7th of March 1961. The application for ejectment was filed on the 25th of March. Three months had obviously not elapsed between the receipt of notice and the filing of the petition. The appellant, therefore, had not contravened the provisions of sub‑clause (i) of clause (3) of section 30. The petition was, therefore, premature. The Rent Controller had no jurisdiction in the case at all. The order passed by him was one without jurisdiction and hence a nullity. The order of the District Judge as an appellate authority based, as it is, on the order of the Rent Controller, is equally bad in law, and, as such, of no legal consequence.

7. The orders of the Rent Controller and the District Judge are set aside and petition being premature is rejected. The petitioner, if so advised, can file a fresh petition. The appeal is accepted with costs.

S. Q. Appeal accepted.

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