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S. II & O. IX, r. 9 Res judicata‑Dismissal of ejectment application for want of prose cution‑Does not bar second application‑Principles of res judicata underlying O. IX, r. 9 and‑ S. 11, Civil Procedure Code, held, not applicable to proceedings under West Pakistan Rent Restriction Ordinance, 1959‑West Pakistan Rent Restriction Ordinance (V of 1959), S. 13.

The provisions of C. P. C. are invoked in the proceedings under the Ordinance on principles of justice, equity and good conscience only. That this is so is sufficiently clear by section 14 of the Ordinance which empowers the Rent Controller to sum marily reject an application under subsections (2) and (3) of section 13 which raise substantially the same issue as has been finally decided in a former proceeding under the Ordinance. The incorporation of section 14 in the Ordinance was futile if section 11, C. P. C., in the terms or on general principles under lying that provision of law had been applicable in their own force to the proceedings under the Ordinance.

Khadim Mohyuddin v. Rehmat Ali P L D 1965 S C 461 rel.

S. 30---‑Notice addressed to minor personally and not through his guardian‑--Not wholly vitiated-- Person under disability cannot claim protection from general law in absence of express protective provision to that effect‑General :Clauses Act (X of 1897), S. 3(39).

It is wrong to suggest that a notice addressed to the minor personally is wholly vitiated. It is not disputed that "a person" as defined under section 3 (39) of the General Clauses Act, 1897 includes a minor and is subject to all laws of the land like any other person unless there exits a specific protective provision in his favour. Whenever the Legislature in its wisdom thought it fit to afford protection to a person under disability it always made an express provision to give effect to that intent.

M. Pervez Akhtar for Appellant.

This second appeal under section 15 of West Pakistan Ordinance VI of 1959 is by Ghulam Muhammad whose ejectment was ordered by the Rent Controller from shop bearing Property No. 2253, Ward 8 (Muslim) Multan City, on the ground of non‑payment of rent and whose appeal against that order before the learned District Judge, Multan also failed.

2. The respondent‑landlord is transferee of the property under Act XXVIII of 1958. After the transfer in his favour, he issued notice under section 30 of the Act informing the appellant of the transfer of the property in his favour and demanding rent from him. The notice was not acknowledged by the appellant nor did he otherwise pay rent to the respondent‑landlord. Accordingly, the latter applied under section 13 for the ejectment of the appellant. The application was resisted on the pleas which led to the following issues between the parties:‑

(1) Whether the respondent is a tenant of the petitioner in the house in dispute O. P. P.

(2) Whether the petitioner has served a notice upon the respondent as required by law If not, what is its effect O. P. P.

(3) Whether the petitioner filed an application for the ejectment of the respondent before the present application If so, what is its effect on the present application

(3‑A) Whether the respondent was a minor at the time of the service of notice If so, with what effect

(4) Relief.

3. The learned Rent Controller, vide his order dated 14‑3‑1968, found he first two issues in the affirmative. On the 3rd issue, his finding was that the earlier application by the respondent‑landlord for the ejectment of the appellant from the premises in dispute was dismissed for want of prosecution and not on merits and, therefore, did not affect the maintainability of the second application. On issue No. 3‑A, the finding was that the appellant was about 19 years of age when the notice under section 30 of the Act was issued to him, but he had not attained majority because of the appointment of guardian of his person and property by the Guardian Court: nevertheless, the learned Rent Controller found the notice to be valid, for the purpose of the 1958‑Act. The above findings were maintained by the learned District Judge, on first appeal by the appellant.

4. Learned counsel for the appellant canvassed the following two points in support of this second appeal:‑

(1) That the dismissal of the first ejectment application against the appellant for want of prosecution bars the second application on the principle underlying rule 9 of O. IX, C. P. C.

(2) That the appellant was under a disability in that he had not attained majority under the Majority Act, 1875 (Act IX of 1875) and, therefore, the notice not being issued to him through his guardian was invalid in the eye of law.

5. As to the first proposition, it is well‑established principle and it was not controverted by the learned counsel either, that the provisions of the Code of Civil Procedure in terms do not apply to the proceedings under the Ordinance. As pointed out by their Lordships of the Supreme Court in Khadim Mohyuddin v. Rehmat Ali (P L D 1965 S C 461) proceedings before Rent Controller under the 1959 Ordinance are quasi judicial and the Rent Controller is not a Court. The provisions of C. P. C. are invoked in the proceed ings under the Ordinance on principles of justice, equity and good conscience only. That this is so is sufficiently clear by section 14 of the Ordinance which empowers the Rent Controller to summarily reject an application under subsections (2) and (3) of section 13 which raise substantially the same issue as has been finally decided in a former proceeding under the Ordinance. The incorporation of section 14 in the Ordinance was futile if section 11, C. P. C., in terms or on general principles underlying that provision of law had been applicable in their own force to the proceedings under the Ordinance.

6. The second proposition rested on the facts that a guardian of the appellant was appointed by the Guardian Court under the Guardians and Wards Act and, therefore, at the relevant time he had attained, the age of about 19 years, and therefore had not become sui juris under the Majority Act. On the basis of these facts, the appellant's learned counsel argued that the notice given by the respondent‑landlord to the appellant not having been addressed to the appellant's guardian was wholly vitiated. Learned counsel argued with a degree of earnestness that the appellant enjoyed "absolute protection" under the law and it was his "inherent right" to have the notice served upon him through his guardian and since that was not done, the notice served on him personally because of his disability was a dead letter and would not satisfy the requirements of section 30 of the 1958 Act, learned counsel, however, was unable to cite any authority to support his rather sweeping proposition. In my opinion, it is wrong to suggest that a notice addressed to the minor personally is wholly vitiated. It is not disputed that "a person" as defined under section 3(39) of the General Clauses Act, 1897 includes minor and is subject to all laws of the land like any other person B unless there exits a specific protective provision in his favour. Whenever the Legislature in its wisdom thought it fit to afford protection to a person under disability it always made an express provision to give effect to that intent. Section 11 of the Contract Act, 1872, is an instance on the point. Similarly O. XXXII of the Code of Civil Procedure provides for the institution of a suit on behalf of or against a person under disability including a minor either by a next‑friend or through a guardian as the case may be. These provisions, in my opinion, are in the nature of exceptions to the general law and these exceptions cannot be extended beyond the purpose for which they were intended. It is noteworthy that sub‑rule (4) of rule 3 of O. XXXII itself envisages a notice to a minor personally with regard to the appointment of his guardian ad litem for the purpose of defending the suit. This clearly negatives the proposition canvassed by the learned counsel for the appellant that a notice to a minor personally unless it is addressed to or through his guardian is wholly vitiated. Similarly, section 19 of the Punjab Pre‑emption Act, 1913 provides for a notice through court by a person of his intention to sell agricultural land or immovable property to all the poten tial pre‑emptors. No exception is made in favour of a minor who may also be among the potential pre‑emptors, nor the normal period of limitation for the institution of the suit for pre‑emption extended by reasons of the minority of a person. This also negatives the proposition that under the general provi sion of law, no notice can be addressed to a minor.

7. For the foregoing reasons, there is no merit in this appeal, which is hereby dismissed in limine.

8. Towards the conclusion of his argument, learned counsel requested for a certificate for appeal under Letters Patent of this Court. In my opinion, the legal proposition urged by the learned counsel may have the merit of novelty but is not sound in law. I, therefore, refuse certificate.

Appeal dismissed in limine.

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