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Second Appeal from Order No. 423 of 1966, decided on 15^th October 1970.

S. 30 read with West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑Ejectment on ground of default in payment of rent‑Notice of transfer and notice of demand of rent under S. 30 of Act o f 1958‑Held, sine qua non for seeking eviction of a tenant on ground of default of rent‑Agree ment having effect of violating provisions of S. 30‑Null and void.

The statutory tenancy is a creation of the Displaced Persons (Compensation Rehabilitation) Act and cannot be contracted out. Any agreement which has the effect of violating the provisions of section 30 of the Act, will be null and void. It is well settled that under the Act two notices are essential namely, a notice of transfer and a notice of demand. When a notice of demand is issued then within three months from the date of its receipt, the tenant has a right to pay or tender the rent due for any period after the transfer. This notice of demand is thus a sine qua non for seeking eviction of a tenant on the ground of default of rent.

It was conceded for the appellant that no notice of demand of rent for the period of default involved in this case was issued by the landlord, It is obvious that in view of this factual aspect of the matter eviction of the tenant could not be ordered in violation of law contained in section 30 of the Act. Courts of law are to act in aid of justice and not in derogation thereof.

It was argued that since the tenant had compromised the matter he was estopped from taking the plea regarding notices under section 30 of the Act.

Held: This contention again has no merit because for each period of default there is a fresh cause of action wit's a fresh right of notice of demand and any compromise for a previous period cannot obviously cover the future periods. Again there can be no estoppel against the provisions of a Statute which deals with matters of public policy regulating items of wide importance as the nature of the relevant Act under consideration.

E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 ref.

S. 100 Plea of non -compliance with provisions of law not adverted to in written state ment before trial Court‑Duty of Court to apply that law.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1965 S C 690 ref.

No estoppel against provisions of a statute dealing with matters of public policy regulating items of wide importance.

Sh. Abdul Haq for Appellant.

Rashid Aziz for Respondent.

Date of hearing: 6^th October 1970.

Khan Aziz‑ul‑Hassan Khan (hereinafter called the landlord) rated on 7‑9‑1965 an application against Haji Muhammad Ismail (hereinafter called the tenant) for ejectment from Shop No. B.V. 54‑235 situated in Ghalla Mandi, Sheikhupura. In the petition, it was averred that the landlord was a transferee of this property by means of a Provisional Transfer Order commonly known as P. T. O.), dated 6‑10‑1960. A copy of the said P. T. O. was annexed with the petition. The case of the landlord was that he bad earlier filed an ejectment application against the tenant which was compromised on 31‑10‑1963 in this way that the tenant agreed to pay Rs. 60 p.m., and further undertook to vacate the shop within one year ending on the 5th of October 1964. It was averred that the tenant had not paid any rent after the compromise nor vacated the shop in terms thereof and that he was damaging the building and the roof of the shop and was, therefore, liable to eviction. In the written‑statement it was conceded that tile landlord was a transferee of the shop by means of a P. T. O. The previous litigation was also admitted but it was denied that he had agreed to vacate the property after one year and it was further pleaded that even if the existence of any such agreement was proved the same being against the Statute, would not affect the lights of the tenant. The rate of rent was also disputed. On merits, it was alleged that the rent up to 31‑10‑1964 had duty 'been paid as per receipts on bahikhata and for the period thereafter it had been ordered but was refused, with tile result that it had to be deposited in Court on 30‑9‑1965 to the extent of Rs. 660.00 for the period or' November 1964 to September 1965, which was followed by a further deposit of the rents for the month of October 1965. (The deposit of the rent is not disputed before me on factual plan). On the pleadings of the parties, the learned Rent Controller framed the following issues :‑

(1) Whether the respondent has tendered or paid rent within specified time and has made no default in this respect

(2) Whether the respondent did not agree to vacate the property in suit on 5‑10‑1964

(3) Whether the said agreement made in the previous suit or in a separate rent note is illegal

(4) Whether the petitioner is not entitled to receive the rent at Rs. 60 p.m. If so at what rate the rent is payable

(5) What is the effect of the agreement dated 31‑10‑1963 made in the previous ejectment application between the parties

(6) Whether the respondent is not liable to ejectment

(7) Relief.

The landlord produced one witness namely Khan Abdus, Samad Khan (his Mukhtar) and led documentary evidence in the form of Exhs. A/1 to A/5, R. W. 1/A‑1, R. W. 1/A‑2 and R. W. 1/A‑3. From the side of the tenant, there were produced three witnesses, namely, Ghulam Qadir postmaster Sheikhupura (R. W. 1), Sher Muhammad postman (R. W. 2) and Muhammad Jan House Tax Clerk (R. W. 3) and the tenant himself appeared as R. W. 4. He also led documentary evidence in the form of Exhs. R. 2, R. 3, R. W. 3/1, A. W. 1/R‑1, R. W. 1/2, R. I and R. W. 1/1. The learned Rent Controller decided issues Nos. 1, 2, and 4 in favour of the landlord. Under Issue No. 3 it was held that the agreement was legal but with regard to Issue No. 5 it was held that the said agreement did not ipso facto make the tenant liable to ejectment unless there was a default in the payment of rent. After giving this finding, it was held under Issue No. 6 that since there had taken place default in the payment of rent, therefore, the tenant had rendered himself liable to eviction. Consequently, the learned Rent Controller directed his ejectment. A pertinent thing to be mentioned is that, though not pleaded in the written‑statement but at the time of arguments before the learned Rent Controller, the point regarding the issuance of notices under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) (hereinafter called the Act), was sought to be advanced but the learned Rent Controller refused to entertain it holding that it was belated.

2. The tenant filed an appeal in which the point regarding the issuance of notices under section 30 of the Act was again advanced before the learned Additional District Judge, Sheikhu pura. The lower appellate Court felt that the point being legal and necessary it should have been allowed to be raised by the learned Rent Controller. He, therefore, set aside the order of the learned Rent Controller, accepted the appeal and remanded the case to the lower Court to add an issue whether a valid notice under section 30 of the Act was served on the tenant or not and directed that the case should be decided afresh in the light of a finding on the issue to be added. Feeling aggrieved, the landlord has come up in second appeal to this Court against the order of the learned Additional District Judge.

3. Learned counsel for the landlord appellant has argued that no doubt his client was a transferee of the property in dispute under the Act and in view of the provisions of section 30 thereof a statutory tenancy initially did come into existence per force of law, but the same was put an end to by means of a compromise during the previous litigation as a result whereof a fresh contractual tenancy came into existence and if the tenant committed any breach of the terms of the aforesaid fresh tenancy, then he was liable to eviction and the provisions of section 30 of the Act could not be invoked by him. The contention has no force. The statutory tenancy is a creation of the Act and as held in E. A. Evans v. Muhammad Ashraf (PLD1964SC536), cannot be con tracted out. Any agreement which has the effect of violating the provisions of section 30 of the Act, in my opinion, will be null and void. It is well settled that under the Act two notices are essential namely, a notice of transfer and a notice of demand. When a notice of demand is issued then within three months from the date of its receipt, the tenant has a right to pay or tender the rent due for any period after the transfer. This notice of demand is thus a sine qua non for seeking eviction of a tenant on the ground of default of rent. Learned counsel for the landlord argued that this aspect of the matter could not be adverted to in the instant case, as it was not raised in the written‑statement. The contention is not correct because if on the facts admitted or proved certain law becomes applicable then it is the duty of the Court to apply that law. It was so held by their Lordships o 1f the Supreme Court in Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690), where at page 696, the actual passage runs as follows :‑

"It may be pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable, on the admitted or proved facts, law has to be given effect to whether or not it has been relied upon by a party.

In the instant case from the landlord's own pleadings, it is evident that he is a transferee of the property under the Act and in support thereof he himself annexed the P. T. O., alongwith the petition of ejectment. On this admitted aspect of the matter, the next obvious question was as to whether the landlord issued (i) notice of transfer and (ii) notice of demand of rent for the period in dispute to the tenant. It was conceded at the Bar before me by the learned counsel for the appellant that no notice of demand of rent for the period of default involved in this case was issued by the landlord. It is obvious that in view of this C factual aspect of the matter eviction of the tenant cannot be ordered to violation of law contained in section 30 of the Act. Courts of law are to act in aid of justice and not in derogation thereof.

4. Learned counsel for the landlord then argued that since the tenant has compromised the matter, therefore, he was estopped from taking the plea regarding notices under section 30 of the Act. This contention again has no merit because for each period of default there is a fresh cause of action with a fresh right of notice of demand and any compromise for a previous period cannot obviously cover the future periods. Again there can be no estoppel against the provisions of a Statute which deals with matters of public policy regulating items of wide importance as is the nature of the relevant Act under consideration.

5. The upshot of the above discussion is that there is no merit in this appeal and in my opinion, as it was conceded at the Bar before me that no notice of demand for the period in question was issued under section 30(3)(i) of the Act, no useful purpose will be served in remanding the case to the learned Rent Controller, because in the face of the aforesaid admitted fact, he will not be in a position to order eviction of the tenant. Exercising my powers under Order LXI, rule 33, C. P. C., read with the Explanation attached to subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959, while rejecting the present appeal, I would dismiss the ejectment application filed by the landlord. There will be no order as to costs.

Appeal dismissed.

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