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Second Civil Appeal No. 191 of 1977, decided on 14th March, 1983,

‑‑ S. 13‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 958), S. 30‑Eviction proceedings‑Transferee of house having been issued P.T.O. and P.T.D. serving notice on occupant of house under S. 30, Displaced Persons (Compensation and Rehabilita tion) Act, 1958 and in consequence thereof, occupant of house, filing Constitutional Petition challenging transfer which was dismissed but L.P.A. of occupant was allowed‑Transferee filing appeal in Supreme Court against order of L P.A. Bench which also set aside but Supreme Court on calculation of formula enhanced price of premises‑Transferee thereafter, filing ejectment application before Rent Controller which was rejected on ground of failure of transferee to pay revised price of premises thus holding that title of transferee being defective, there exists no relationship of landlord and tenant between parties‑Title of transferee as valid transferee of disputed premises has been cleared by Supreme Court, occupant should have cleared arrears of rent and as same was not done, tenant has committed default and as such his eviction ordered.

‑‑ S. 20 (3)‑Transfer of evacuee house ‑Petitioner transferee of evacuee house issued P.T.D. on price of Rs. 10,400 but subsequently in appeal Supreme Court applying calculation formula increasing its price to Rs. 13,800‑Petitioner only required to make payment of difference of balance to Settlement Department and this has no effect on P.T.D. already issued nor his rights to which he was entitled under P.T.D. are affected by non‑payment or delay in payment to Settlement Department,

‑‑ S. 30‑Service of notice‑Petitioner on being issued P.T.O. and P.T.D. of evacuee house serving notice on respondent under S. 30 of Act, but respondent moving higher forums challenging such transfer and in appeal Supreme Court deciding matter in favour of peti tioner‑Notice issued by petitioner, held, remained suspended and once judgment given by Supreme Court, it stood revived and there is no need of issuing a fresh notice on respondent under S. 30 of Act.

P L D 1971 Kar. 217 ref.

S. H. Rizvi for Appellant.

Nawab Mirza for Respondent.

Dates of hearing : 13th and 14th March, 1983,

Rent Application No. 140 of 1974 was filed by the appellant/ landlord for ejectment of the respondent. The application was dismissed by the Rent Controller by order 30th Jaunary, 1976. First Appeal No. 85 of 1976 was filed by the appellant but the same was also dismissed by the learned IVth Additional District Judge. Hyderabad, by order 25th April, 1977. The present second appeal was filed challenging the two orders passed by the Rent Controller and the First Appellate Authority. I have heard Mr. S.H. Rizvi, learned counsel for the appellant and Mr. Nawab Mirza, learned counsel, who has appeared on behalf of the respondent.

2. The case of the appellant was that he was transferee of the house in question and a P.T.O. was issued to him in respect of this house on 2nd December, 1960 and later on P.T.D. was also issued to him on 8th November, 1963. One notice under section 30 of D.P. Act was given on 25th November, 1960 and another was given on 20th June, 1961 and the same were served upon respondent. The respondent was in occupation of the premises in ques tion prior to its transfer in favour of the appellant. Previously an ejectment application was filed by the appellant in 1961 against the respondent. The respondent had filed a constitutional petition No. 162 of 1962 in this Court challenging the transfer of the premises in favour of the appellant and a stay order had also been obtained in the said constitutional petition. The appellant withdrew his earlier application. The said constitutional petition No. 162 of 1962 was dismissed by a learned Single Judge on 7th October, 1963 where after, another section 30 notice, was served by the appellant on the respondent. The respondent challenged the order of the learned Single Judge dismissing the constitutional petition No. 162 of 1962 in L.P.A. No. 97 of 1963, which L.P.A. was allowed by judgment dated 3rd November, 1965 of a Division Bench of this Court. However, the appellant filed an appeal before the Supreme Court and the Supreme Court by their judgment dated 22nd January, 1974 in Appeal No. K‑30 of 1968 allowing the appeal of the appellant set aside the L.P.A. judgment and maintained the judgment of the learned Single Judge passed in Constitutional Petition No. 162 of 1962. After the decision of the Supreme Court the instant rent case was filed by the appellant. The respondent challenged the relationship of landlord and tenant claiming the property as his own and by the impugned order dated 30th January, 1976 the ejectment application No. 140 of 1974 was dismissed by the learned Rent Controller. It may be observed here that prior to the transfer of the property in favour of the appellant, a P.T.O. had been issued in favour of the respondent in 1959 on L. H. Form and the respondent paid the full price of the disputed house, which was then Rs. 8,280. Later on, it appears, the price of the property was revised to Rs. 10,400 and as a result the price being over Rs. 10,000, the same could not be transferred to the respondent. :Apparently the Settlement Department transferred the premises to the appellant and thereafter P.T.D. was also issued to the appellant in respect of the property in 1963. The entire amount of Rs. 10,400 was also paid by the appellant to the Settlement Department. Reference has been, made earlier to the Supreme Court's judgment in Appeal No. K‑30 of 1968 on 22nd January, 1974. In the said judgment of the Supreme Court after applying the formula of calculation of the price of the property in question, the Supreme Court determined the price on evaluation basis at Rs. 13,800. The learned Rent Controller in his order dated 30th January, 1976 dismiss in the ejectment application held that as the price of the disputed premises had been revised by the Supreme Court, the appellant was bound to pay the difference of the price to the Settlement Department i.e. the difference between the price of Rs. 10,400 fixed by the Settlement Department and the price of Rs. 13,800 fixed by the Supreme Court, and as the same had not been paid, there was a defect in the title of the appellant and he could no be treated as a landlord. It was held that the title of the appellant was not complete in accordance with the aforesaid judgment of the Supreme Court, therefore, there existed no relationship of landlord and tenant between the parties. After the Rent Appeal No. 85/76 had been filed by the appellant before the First Appellate Authority, on 25th April. 1977, the appellant paid the difference of the price to the Settlement Department. Civil Appeal No. 85 of 1976 was dismissed by the learned IV Additional District Judge, Hyderabad, on a ground different than that which was given by the learned Rent Controller, According to the First Appellate Authority, after the aforesaid judgment of the Supreme Court fresh P. T. O.. and P. T. D. were to be issued in favour of the appellant by the Settlement Department on the basis of the final assessment of price by the Supreme Court and it was only thereafter that the appellant could call upon the respondent to pay the rent and for that it was necessary for him to serve upon him fresh notice under section 30 of the D.P. Act, 1958, to create relationship of landlord and tenant between the parties. The learned First Appellate Authority then went on to observe that in any case the transfer of the house in question was in dispute upto 22nd January, 1974, when the Supreme Court passed the aforesaid judgment and as such the appellant should have served another notice under section 30 after the final determination of the transfer of the house in his favour to create relation ship of landlord and tenant between the parties.

3. It was contended by Mr. S.H. Rizvi learned counsel for the appellant that the judgment of the Supreme Court had not been properly interpreted by the Rent Controller and the First Appellate Authority. According to the learned counsel, the Supreme Court had set aside the judgment of the LPA Bench and maintained the order of the learned Single Judge in Constitutional Petition No. 162 of 1962. According to the learned counsel, the orders passed in Constitutional Petition No. 162 of 1962 and by the Supreme Court in Appeal No. K‑30 of 1968 confirmed the transfer of the property in favour of the appellant and the prayer of the respondent, who had filed Constitutional Petition No. 162 of 1962 that the Court may grant a writ against the Settlement Department directing them to restore the original P.T.O./Appendix already issued to the respondent was not granted. It was further contended that payment or less payment to the Settlement Department by a transferee, who had been granted a P.T.D. was a matter between the transferee and the Settlement Department and a third party or an occupant could not challenge the relationship of landlord and tenant on the basis that payment had not been made or less payment had been made by the transferee to the Settlement Department. It was further contended that it was not necessary for the appellant to have issued a fresh notice under section 30 after the decision of the Supreme Court and the previous notices issued were sufficient.

4. On the other hand it was contended by Mr. Nawab Mirza, learned counsel for the respondent, that the only question in Constitutional Petition No. 162 of 1962 and in the LPA and the Supreme Court appeal was the question of the determination of the price of the house and the validity of transfer itself was not a question and after the judgment of the Supreme Court, the respondent had approached the Settlement Authorities that the property in question be transferred to him but that was not entertained by the Settlement Department on the ground that P.T.D. had been issued m favour of the appellant in 1963 and they had become functus officio, where after the respondent had filed a civil suit which is pending before the civil Court. According to the learned counsel, the judgment in the Constitutional Petition No. 162 of 1962 and the judgment of the Supreme Court in Appeal No. K‑30' of 1968 do not come in the way of the respondent in claiming the said house by filing the suit. It was contended that after the revision of the transfer price, the P.T.D. in favour of the appellant stood automatically cancelled and that in any case until he had paid the balance price he could not be treated as a P.T.O. holder. It was contended that the revised appen dix or P.T.O./P.T.I5. should have been obtained by the appellant before he could become the landlord/owner of the premises in question.

5. File of the disposed off Constitutional Petition No. 162 of 1962 was called. Prayer No. 2 in the memo of petition in that constitutional petition shows that the respondent himself had asked for a writ to be issued to the Settlement Department directing them to restore the original P.T.O./Appendix issued to the respondent in 1959. In my view, in the face of this prayer in the constitutional petition, the case of the petitioner himself was that P.T.O, had already stood cancelled and he wanted a writ to be issued by the High Court directing the Settlement Department to restore his P.T.O. This petition was dismissed and as such this prayer was not granted. The L.P.A. Bench, however, allowing the appeal, set aside the order of the learned Single Judge and maintained the transfer of the house in question in favour of the res pondent, as upheld by the Settlement Commissioner. This judgment dated 3rd November, 1965 in L.P.A. was, however, set aside and the order of the learned Single Judge passed in Constitutional Petition‑No. 162 of 1962 was restored. Although, in the Supreme Court judgment by applying the relevant formula the market price of the house in dispute was calculated to be Rs. 13,800, it was observed by the Supreme Court as follows:‑

"In the circumstances, mentioned above, the increase was justified and no fault can be found with the order of the Chief Settlement Com missioner dated the 26th of January, 1962, holding that the increase was justified. The Chief Settlement Commissioner was fully com petent to make the order, and there was, therefore, little scope for interference with the order by the High Court in the exercise of its extraordinary jurisdiction."

The net result of the judgment of the Supreme Court was that the increase by the Chief Settlement Commissioner of a price of the house in question to a figure over Rs. 10,000 was held to be justified although the price was calculated to be Rs. 13,800 instead of Rs. 10,400, fixed by the Settlement Department. The order of the L.P.A. Bench was set aside and the order of the learned Single Judge dismissing the Constitutional Petition No. 162 of 1962 was maintained. The Supreme Court judgment, therefore, decided finally that the transfer of the property in favour of the appellant was not liable to be set aside. As the order of the learned Single Judge was maintained, the prayer of the respondent in Constitutional Petition No. 162 of 1962 that the P.T.O./Appendix issued in his favour be restored, was, there fore, not granted. In the circumstances, the question of transfer of the house in question to the appellant, after the judgment of the Supreme Court on 22nd January, 1974, could not be reopened. The contention of the learned counsel for the respondent that the only question that was decided by the Supreme Court and in the constitutional petition was the question of price and the question of transfer of the property was still open, therefore, cannot be accepted.

6. The other question, which requires consideration, is whether on account of increase in price from Rs. 10,400 to Rs. 13,800 by the Supreme Court, the P.T.D. issued in 1963 in favour of the appellant was affected cancelled. I agree with the contention of the learned counsel for the appellant that the P.T.D. was not affected in any way and the appellant was C only required to make payment of the balance to the Settlement Department but the non‑payment or delay in payment by the appellant to the Settlement Department did not affect the rights of the appellant, to which he was entitle under the P.T.D. issued to him.

7. Further in my view, it was not necessary, after the decision of the' Supreme Court, for the appellant to have issued a fresh notice under sec tion 30. At the most it could be said that the notice under section 30 issued by the appellant in 1963 remained suspended when the decision of the L.P.A. Bench was ruling the field but once the judgment was given by the Supreme Court in favour of the appellant, the notice under section 30 given in 1963 stood revived and I find support for this from a judgment reported in P L D 1971 Kar. 217.

8. After the decision of the Supreme Court, the title of the appellant had been cleared and within a reasonable time the respondent should have' cleared the rent arrears and as this was not done and the respondent had wrongly challenged the relationship of landlord and tenant, he was liable to be ejected. In my view, relationship of landlord and tenant existed between the parties at the time the rent application was filed in 1974 after the decision of the Supreme Court of Pakistan and as admittedly no rent had' been paid by the respondent to the appellant, ejectment application filed by the appellant should have been allowed on the ground of default.

9. Second Appeal No. 191 of 1977 is allowed but with no order as to costs. The result is that the order dated 30th January, 1976 passed by the Rent Controller in Rent Application No. 140 of 1974 and order dated 25th April, 1977 of the learned IV Additional District Judge, Hyderabad, in Appeal No. 85 of 1976 are set aside and the ejectment application No. 140 of 1974 filed by the appellant is allowed. The respondent is, however granted time till 30th June, 1983 to vacate the premises.

M. Y. M. Appeal allowed

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