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Second Appeal from Original Order No. 238 of 1972, heard on 4th July, 1979.
-- S. 30-Notice, service of-Second appeal-Question whether notice served or not-One of fact-Cannot be raised in second appeal -West Pakistan Urban Rent Restriction Ordinance (VI of IS59), S. 15. [Question of fact-Second appeal].
-- S. 30(1) (b)-Notice-Moment property in pool transferred, occupant 'becomes tenant of transferee-Notice contemplated in proviso (b) Nothing to do with creation of such relationship--Notice, however, relevant for purpose of computing period of protection-Notice served within a month of transfer, period commenced from date of transter- Notice served .later, period commences from date of receipt of such notice-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13.-[Notice].
---S. 30(3) and West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13-Ejectment-Tenant defaulting in payment of rent within three months of date of receipt of notice or subletting or otherwise parting with possession of property or committing acts destructive of or injurious to property, held, liable for ejectment notwithstanding protection of six years.
----S. 13(6) and Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30-Ejectment proceedings-Tenant committing default in payment of rent during protection period-Fresh notice, held, not necessary and default can be dealt with under ordinary law -Pending adjudication on question of tenant having incurred any of disqualifications under S. 30 direction to deposit rent can be made. [Notice].
Jiando Khan v. Hakim Muhammad Ishaq P L D 1964 Kar. 61 ; E. A. Evan. v. Muhammad Ashraf P L D 1964 S C 536 ; Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. P L D 1965 Lab. 82; Saeed Ahmad v. Mst. Zait-un-Nissa P L D 1967 Lab. 196 ; Afaquz Zubair v. Muhammad Idris P L D 1978 Kar. 984 ; Muhammad Amin v. Jamshed Ali P L D 1967 Lab. 856 ; Muhammad Shafi v. Abdul Hayee P L D 1965 Lab. 681; Muhammad Rizwan v. Ashiq Ali P L D 1966 Quetta 11 ; Nizam Din v. Nawab Bibi P.L D 1970 Lab. 923 ; Akhtar Ali Parvez v. Altafur Rehman P L D 1963 Lah. 390 and Ghulam Hassan v. Muhammad Hayat P L D 1571 S C 573 ref.
Jehangir A. Jojha for Appellant.
Afzal Ahmad Qureshi for Respondents.
Date of hearing : 4th July 1979.
This is the tenant's second appeal from the dismissal of his first appeal against the Rent Controller's order striking out his defence in the ejectment proceeding brought by the respondents.
2. The house in question, of which certain portion is in possession of the appellant, had .been transferred in favour of the respondents. They served a notice upon the appellant on 26-7-1967 under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, ]958, demanding rent from January, 1966 onward at the rate of Rs. 10 per month. The appellant paid the rent from January, 1966 till September, 1967. On 12-6-1968,.the respondents moved an application for ejectment of the appellant on the grounds of (a) default, (b) subletting and (c) damage to the property. The appellant in his written statement admitted the tenancy and, in fact; affirmed having paid rent up to September, 1967, but denied the service of notice under section 30. He explained that he had tendered rents subsequently also but the receipt of the same had been refused by the respondents. He not only, thus denied the allegation of default but also of subletting and causing damage to the property. On these contentions, the Controller framed the following preliminary issue.
"Whether the petitioners served the respondent with a notice under section 30 of Act No. XXVIII of 1958 O. P. P."
After going through the evidence led by the parties, the Controller by order dated 16-10-1971, found the issue in favour of the respondents; landlords and the same day passed an order for deposit of arrears of and future rents. As the appellant failed to comply with this order of deposit, his defence was struck out on 27-11-1971.
3. The appellant's contention in his first appeal was that as there was no finding as to a contravention of clause (i) of subsection (3) of section 30, the Controller could not assume jurisdiction and that the order of deposit having thus been passed without jurisdiction, the subsequent order of striking out his defence was equally illegal. He also contested the finding on the preliminary issue of service of notice under section 30. The contentions, however, did not prevail.
4. The points raised before in are (i) that the finding on the question of service of notice under section 30 was erroneous as the same had not been correctly addressed, (ii) that the questions of default. subletting and damage to the property constituted jurisdictional facts and as such should have been tried as preliminary issues before directing the deposit of rent, and (iii) that since the appellant had not defaulted in the payment of rents within three months of the notice, even if received, it was necessary for the respondents to have served a fresh, notice in respect of any subsequent default.
5. The first contention appears to have no substance because I find from the registration receipt (Exh. P. 2) and the copy of the notice (Exh. P. 1) that the address of the appellant had been given as I8-Rashid Road, behind Animal Husbandry College, Lahore, which is the same address as given in the ejectment application which learned counsel for the appellant admits to be the correct address. The contention is, however, based on the A. D. Form (Exh. P. 3) wherein the address is given as Boot Factory, 27 Rubbani Road, Lahore. The date in this A. D. Form, through shown as 26-7-1967, in ink, is different from the one appearing in the postal seat which is a date in January but which is crossed and 26-7-1967 overwritten in ink. The relevant document is the registration receipt Exh. P. 2 and since the address as given on the envelop is ordinarily copied out in the registration receipt, it is clear that the envelop containing the notice had been correctly addressed. In any case, the question whether the notice had been served or not, is one of fact and, thus, cannot be raised in this second appeal in the face of concurrent finding by the authorities below.
6. In order to appreciate the other points raised, a close examination of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is required. The relevant portions of the section read :-
"30. Protection of certain occupants.-(I) Where any person is in possession of any evacuee house or shop or has been declared on or before the 20th day of December, 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August 1947, in any industrial concern, cinema house or printing press which i9 transferred to any other person under the provisions of this Act, then, notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, 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 Provided that-
(a) . . . . .
and
(b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years from the date of transfer notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgement due).
(2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant.
(3) Nothing in proviso (b) to subsection (1) shall apply to a tenant--
(i) who has not within three months from the date of receipt of a notice of demand sent to him by the transferee by registered post (acknowledgement 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 nor shall anything therein apply to the tenant of any house or shop, in any urban area within the same town or city, owns a house or shop, as the case may be.
(4) On the expiry of the period mentioned in proviso (b) to subsec tion (1) or on the contravention of any of the provisions of sub section (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."
7. Subsection (1) makes it clear that tenancy between the transferee and the occupant is created by the factum of the transfer. The moment property in the Pool is transferred, the occupant becomes tenant of the transferee by operation of the law and the notice contemplated in proviso to this subsection has nothing to do with the creation of this relationship.
The notice, however, is relevant for the purpose of computing the period o protection provided in proviso (b). If the notice is served within a month of the transfer, the period would commence from the date of transfer, but in the notice is served later, then from the date of receipt of such notice.
8. Section 30 of the Displaced Persons (Compensation and Rehabilita tion) Act, in fact, contemplates two notices, one under proviso (b) to sub section (1) intimating the factum of the transfer and the other under clause (i) to subsection (3) incorporating a demand of rent. Both the notices can be combined in one, as has been done in the instant case. Notwithstanding the protection of six years, the tenant will, however, be liable to ejectment under subsection (3) if he (i) defaults in the payment of rent within three months c of the date of receipt of the notice "sent to him by the transferee by registered post (acknowledgement due)", or (ii) has sublet or otherwise parted with the possession of the house, or (iii) has committed acts which are destructive of or injurious to the property.
9. The contention is that as the tenant had paid rent then due within three months of the receipt of the notice, his ejectment could not be ordered on account of a future default in payment of rents, until the expiry of the period of the protection, unless a fresh notice by registered post (acknowledgement due) had again been served on him. In other words, once rents had been paid within the period of three months from the receipt of the initial notice, the landlord, it is submitted, was required to serve a fresh notice in the same manner for any and every subsequent default to enable the tenant to clear the dues within three months from the receipt of such subsequent notice before the landlord could apply for ejectment. Such question had arisen in Jiando
Khan v. Hakim Muhammad lshaq (P L D 1964 Kar. 61) in which a learned Single Judge had expressed the view that
"The notice of demand contemplated in clause (i) of subsection (3) is only one notice for the arrears relating to the period after the transfer, and does not appear to me to relate to every successive default. It is clear that the intention of the Legislature was to provide for allowing a reasonable time to the tenants to clear the arrears of rent accruing in favour of the transfer, and not to so materially alter the relation ship of landlord and tenant that even in cases of monthly tenancies every time a default accrues, a notice of three months has to be given."
The Supreme Court in E. A. Evans v. Muhammad Ashraf (P L D 1964 S C 536) bad referred to this authority and had laid down the same principle of ruling that :
"It is, of course, possible that both these notices may be combined into one, as, for example the same notice while giving intimation of the transfer might also demand the rent and or arrears of rent, if any, due for any period after the transfer. But where no such combined notice has been issued, it would, in order to take a tenant out of the protection from eviction granted to him by proviso (b), be necessary to serve upon him a second notice of demand as contemplated by clause (i) of subsection (P L D 1965 Lah.82). It may not be necessary to serve such a notice of demand each time there is a default but, at any rate, at least one notice of demand has of necessity to be served to deprive the tenant of the protection."
10. In Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. (3) a Division Bench had, however, expressed a contrary view in the words
"On the contrary, if after the notice, the tenant has paid the rent, the landlord is left with no cause of action to proceed against the tenant under Ordinance VI of 1959. If subsequent to this, a default is committed by the tenant, the landlord again must give him a notice because if he does not do so and files a petition, the petition is liable to be dismissed on the ground of lack of jurisdiction for the reason that the Rent Controller under the ordinary law can assume jurisdiction in such cases only if it is proved that the provisions of section 30 (3) (i) have been contravened."
1t may be noted that although this case had been decided on 15-7-1964, yet it makes no mention of E. A. Evans's case decided on 14-5-1964 or even of Jiando Khan's case decided on 1-6-1963 which both had preceded it. The view taken in Malik Abdul Aziz's case was, however, dissented from in Saeed Ahmad v. Mst. Zait-un-Nissa (P L D 1967 Lah. 196.) where a learned Single Judge followed the authority in E. A. Evans's case, observing
"I feel bound by the dictum of their Lordships of the Supreme Court in E. A. Evans v. Muhammad Ashraf and without entering into the controversy raised in the Full Bench decision A. M. Khan Leghari v. Government of Pakistan P L D 1965 Lah. 214 1 hold that no second notice of demand under section 30 of Act XXVIII of 1958, was necessary in the case.
11. The matter came up again before a Division Bench of the Sind High Court in Afaquz Zubair v. Muhammad 1dris (P L D 1978 Kar. 984). The Bench came to the view that the opinion expressed by the Supreme Court in E. A. Evan's case "was explicitly tentative and the true interpretation of clause (1) of subsection (3) of section 30 of the Act was left open". The reasoning was
"This is clear from the use of the word may' and the words at any rate, at least one notice of demand' in the underlined portion of the observations. At the end of the quotation once again their Lordships have used the words one notice of demand is at least necessary for the protection to be lost'. The word may' imports possibility but cannot be deemed to express absolute opinion. Similarly at least' means at all events or even if a wider statement is disputable or it means at the lowest computation. Having regard to the language used by their Lordships the clear import of the observations is that their Lordships did not rule out possibility of the interpretation to the effect that more than one notice of demand may be necessary in case of successive defaults by a statutory tenant."
The Division Bench, therefore, disagreed with the view taken in Saeed Ahmad's case and followed the one in the aforecited case of Malik Abdul Aziz in coming to the following conclusion that :-
"Unless, therefore, a fresh notice of demand was served by the landlord and default was committed by the respondent in the payment of arrears within 3 months from the date of receipt of such notice, obviously the condition precedent for bringing the case within the ambit of normal law could not be fulfilled."
12. The Division Bench had also relied on Muhammad Amin v. Jamshed Ali (P L D 1967 Lah. 8876) though the point in this cited case was not whether a fresh notice in respect of a subsequent default is necessary but whether the question of payment of rent within 3 months of the notice is to be decided as a prelimi nary issue before assumption of jurisdiction by the Controller. Here in an ejectment petition brought on the ground, inter alia, that the tenant had defaulted in payment of rent for more than two months after receipt of notice under section 30, an order for deposit of rent had been passed under sec tion 13(6) of the Ordinance by the Controller and while the order was subject matter of appeal in the High Court, the tenant's defence wan struck out for non-compliance of the order. It was held
"The position which emerges from the foregoing discussion is that before ordering action under section 13(6) of the Ordinance it was incumbent upon the learned Rent Controller to determine whether the appellant had committed a default in the payment of the arrears of rent in terms of clause (i) of subsection (3) of section 30 of the Act.
If be comes to the conclusion that there has been default on the part of the tenant, he can then assume jurisdiction to deal with the case under the various provisions of the Ordinance."
In reaching the' above conclusion, the learned Judges had approved the authorities in Muhammad Shoji v. Abdul Hayee (P L D 1965 Lah. 681) and Muhammad Rizwan v. Ashiq All (P L D 1966 Quetta 11). In the former, it had been held "He (the Controller) 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 second authority it had been held
"The application of the Ordinance is directed to such tenants or occupants only if subsections (2) and l3) of section 30 of the Act have come into operation. It is only when any of the events enumerate in subsec tion (2) (sic) of section 30 of the Act rave happened that the general law relating to the relationship of landlord and tenant can be applied "
13. Muhammad Amin's case therefore makes it clear that proof of service of the notice under section 30 is not enough to confer jurisdiction on the Controller and that useless the default in payment of rent within three months of the notice has also be proved as a jurisdictional fact, the ordinary law could not apply and the Controller could not assume jurisdiction, The ruling Muhammad Amin s had been followed in Nizarn Din v. Nawab Bibi (P L D 1970 Lah. 923) and it had been observed :
"Before assuming the jurisdiction, the learned Rent Controller was required to record his finding as to whether the tenant had in fact failed to pay or tender the rent within the period prescribed by clause (i) of subsection (3) of section 30 of the Act."
These authorities, however, seem to go contrary to an earlier Pull Bench decision in Akhrar Ali Parver v. Altajur Rehman (P L D 1963 Lah. 390) where the tenant's ejectment had been sought on the ground of default in payment of rent in response to the notice and on account of damage to the property and although the tenant had challenged the notice as -being unsigned and had denied the receipt of any notice of demand and bad also denied the allegation of damage, the Controller hail, before proceeding ire the matter, passed an order of deposit of rent. On the tenants failure to comply, his defence had been struck out and his ejectment ordered. The contention that the Controller should have determined the question of service of notice as a preliminary issue before ordering deposit of rent was .not accepted. The Full Bench did not find any fault with the order and dismissed the appeal with the observation
"His defence was struck off after the full period of three months and another two and a half months had gone by."
14. Section 30 has provided the tenant a protection for six years from ejectment except on the three grounds enumerated therein. It reiterates that within the period of the protection the law for the time being governing the relationship of landlord and tenant between the transferee and the tenant shall not apply unless any .rtf the grounds specific exists. If the ruling that a fresh notice is not required for a subsequent default is to be followed then there is no yardstick by which to apply the first disqualification, that is default in payment of rent within three months from the date of receipt of "a" notice of demand. It is difficult to visualize how in the absence of such a notice, a subsequent default can be dealt with unless eve invoke the ordinary law but that cannot be done during the period of the protection of six years. Again, if we follow the dictum in Muhammad Amin's case that the question of default in payment of rent within three months of the notice is to be decided as a preliminary issue, then the other two disqualifications, namely, subletting and causing damage to the property, which cannot but be treated, for the purpose, to he par with the one of non-payment of rent within three months of the not ought also to be determined as a jurisdic tional fact by framing a preliminary issue and until, such issue has been found, no order of rent can be passed. This would in other words mean that the provision of section 13(6) cannot be invoked within the period of the protection unless party of the three contraventions, leading to a forfeiture of the protection, had been fully established. In this view of the law, the question of passing an order under section 13(6) can hardly arise for in the event of day of the contraventions as having proved, the tenant's ejectment has to follow while in the contrary event, the landlord's application for ejectment has to he dismissed. No tribal issues would remain thereafter. On the other band, if the breaches are to be tried not as preliminary issues but as merit issues, then an order under section 13(6) has to be passed first. This would, in the event of a non-compliance of the order, entail the striking out of the tenant's defence and his ejectment, before an actual proof of a breach of any of the conditions under section 30 which alone could deprive the tenant of his protection ass yet cane on record. Can it be said that ejectment of the tenant for non-compliance of order made under section 13(6) of the Ordinance without proof of any of the contraventions is contemplated by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, which rules it the applicability of the ordinary- law within the period of the protection except upon proof of such contravention.
15. I have, therefore, grave doubt in my mind that during the period ref the protection the question of a subsequent default can be dealt wit under the ordinary law without insisting upon proof in strict terms of clause (1) of subsection (3) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act or that the provision of section 13(6) of the ordinary law can be invoked without first requiring proof of a violation of one of the conditions of section 30(3). However, 1 must dispose of the matter in hand in the light of superior and binding authorities available in the field. I must first hold, on the author it of Evan's case that a fresh not is not required for a subsequent default. This will mean that the question of a subsequent default will be dealt with under the ordinary law even during the period of the protection initially a notice under section 30 had been served and rents had been tendered within three months' thereof. I also hold by implication of the authority of Ghulam Hassan v. Muhammad Hayat (P L D 1971 S C 573) that a direction to deposit rent can be made pending adjudication on the question of tenant having incurred any of the disqualifications. In this cited case, although the ejectment application had been contested on the ground that the Controller had no jurisdiction as the property was Evacuee Trust Property land that the notice sent was not valid, the Controller had made an order for deposit of rent and after resolving the question of quantum of the rent payable, the Supreme Court had directed the Controller to make a fresh order for deposit of arrears of rent at the rate of Rs. 50 p. m. as required by sec tion 13(6). No direction had been giver: tab the Controller t:) decide, before passing the order of deposit of rent, the question of default in payment of rent which had been one of the grounds before him for reeking the ejectment
16. The appeal, therefore, fails and is accordingly dismissed with no order as to costs.
M. A. K Appeal dismissed.
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