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Second .Appeal No. 56 of 1976, decided on 22nd September, 1983.

‑‑ S. 15(4)‑Second appeal‑New plea‑No averment on part of tenant that he was not a statutory tenant nor such point was taken up before First Appellate Court‑New plea, held, cannot be allowed in second appeal.

‑‑ S. 13‑Admission of fact‑‑Admission about statutory tenancy, held, admission on point of fact‑Evidence Act (I of 1872), S. 17.‑ --- [Admission].

Muhammad Sharif for Appellant.

Rao M. Shakir Nagshbandi for Respondents.

Dates of hearing : 26th May and 22nd September, 1983.

This is a second rent appeal filed by the appellant/ tenant. Rent Case No. 8 of 1970, was filed by Muhammad Yousuf/landlord. Muhammad Yousuf had later on died and his legal heirs, respondents in the present appeal, were brought on record. The house in question was an evacuee property and was transferred to Abdul Latif and Abdul Sattar by the Settlement Department in 1961‑62. During 196.5 and 1967 the house was purchased by deceased Muhammad Yousuf from the two transferees. In para. 4 of the ejectment application it is mentioned that the appellant was in possession of this house since the time the house bad been purchased by Abdul Latif and Abdul Sattar from the Settlement and that the appellant was also in possession of the same when Muhammad Yousuf had pur chased it from Abdul Latif and Abdul Sattar. In para. 5 of the ejectment application it is mentioned that after the purchase of the house in question, Yousaf on 13‑12‑1969, gave a notice to the appellant by regis tered post and informed him about the purchase of the house from Abdul Latif and Abdul Sattar and demanded rent from him. In para. 6 of the eject ment application it was stated that the rent of the house was Rs. 25 per month and it was calculated on the basis of yearly municipal drainage tax. In his written statement, the appellant, denied that Yousif was the landlord of the house in question. The appellant claimed that he bad entered into an agree ment of sale with previous owner Abdul Sattar, to whom he made part‑pay ment and his possession was protected under section 53‑A of the Transfer of Property Act. He admitted the receipt of notice dated 13‑12‑1969, but pleaded that he had replied the notice stating that he had purchased the house from Abdul Sattar and that he was in possession as an owner and not as a tenant and, therefore, the question of payment of rent did not arise. A pre liminary issue was raised about the relationship of landlord and tenant between the parties. By order dated 24‑9‑]973, the preliminary issue was decided in favour of the landlord against the appellant. An Appeal No. 22 of 1973, was filed by the appellant challenging the decision of the Rent Controller deciding preliminary issue in favour of the landlord. It may be mentioned here that after deciding the preliminary issue in favour of the landlord, the Rent Controller had also passed a tentative rent order. By order dated 15‑12‑1973, the learned District Judge, Jacobabad, dismissed the appeal. Thereafter an application under section 13(6) of the 1959, Rent Ordi nance was filed by the landlord and by order dated 31‑3‑1975 the applica tion was allowed, as admittedly there had been a default in the deposit of rent on the part of the appellant. The appellant was ordered to be ejected, his defence having been struck off. The appellant filed Rent Appeal No. 13 of 1975. By order dated 17‑2‑1976, learned Additional District Judge, Jacobabad dismissed the appeal. Being aggrieved, the appellant has filed the present second appeal. I have beard Mr. Muhammad Sharif, learned counsel for the appellant and Mr. Rao M. Shakir Naqshbandi, learned counsel for the respondents.

2. It was contended by the learned counsel for the appellant that for an ejectment application to be competent under the rent restriction laws, there has to be a relationship of landlord and tenant and the opponent in an ejectment application can either be a contractual tenant or a statutory tenant. It was submitted that contractual tenancy had not been alleged between the parties and, therefore, at the most the case of the respondents could be that the appellant was a statutory tenant. It was contended that from the pleadings it is apparent that it was nobody's case that the Appellant had come into possession of the house in question prior to December, in 1958 and, therefore, he could not be a statutory tenant. According to Mr. Muhammad Sharif, learned counsel for the appellant, in these circumstances, the possession of the appellant was not possession as defined under section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. He contended that the appellant neither being a contractual tenant nor a statutory tenant, the ejectment application under the rent laws could not be competently maintained against him. According to the learned counsel for the appellant, preliminary issue on the point of relationship of landlord and tenant between the parties was wrongly decided in favour of the landlord by the Rent Controller and the said order being illegal, the consequential order of ejectment could not be maintained in law.

It was admitted by the learned counsel for the respondents that the appel lant was not a contractual tenant. However, it was contended that it was the case of the landlord that the appellant was a statutory tenant and this was also the case of the appellant. Learned counsel for the respondents in this regard referred to the memo. of appeal in Appeal No. 22 of 1973 and also to the certain passages from the order dated 15‑12‑1973, of the learned District Judge, Jacobabad dismissing the Appeal No. 22 of 1973, filed by the appellant against the order dated 24‑9‑1973, of the Rent Controller deciding the preliminary issue in favour of the land lord and ordering deposit of rent. In the m‑,mo of appeal in Appeal No. 32 of 1973 the stand taken by the appellant was that he was a statutory tenant. Two paragraphs from the order dated 15‑12‑1973, of the learned District Judge, Jacobabad, dismissing the appeal of the appellant may be reproduced hereinbelow :‑

"The respondent had filed an ejectment application against the applicant for the house in dispute which is admittedly occupied by the appel lant. Originally this house was purchased by Abdul Latif and Abdul Sattar from the Settlement Authorities. These transferees had sold the house to the respondent. A noticc under section l3‑A of the Ordi nance was served upon the appellant and thereafter the ejectment was filed on the ground of non‑payment of rent, bona fide need of the respondent and on the further ground that the appellant was causing damage to the property. The appellant had contested the ejectment application mainly on the ground that he himself had purchased the property in dispute from the original transferee Abdul Sattar by means of a sale agreement for Rs. 5,000 out of which Rs. 905 had already been paid to Abdul Sattar as earnest money. He, therefore, pleaded that he was entitled to retaint he house in suit by virtue of section 53‑A of the Transfer of Property Act.

On the above pleas a preliminary issue was struck to the effect whether there existed relationship of landlord and tenant between the parties. After recording evidence of the parties the learned Rent Controller came to the conclusion that the alleged sale agreement between the appellant and the original transferee did not materialize and as such the doctrine of part‑performance as envisaged in section 53‑A of D. Ps. Act does not apply and that the appellant is not entitled to resist the claim of the respondent on that score. This finding has not been challenged by the learned appellant's counsel, nor it is challengable under section 15 of the Rent Restriction Act, because the finding does not fall within section 13 of the Ordinance. The learned counsel for the appellant has challenged only that portion of the order of the learned Rent Controller which relates to the deposit of arrears of rent and current rent. His plea is that since the appellant was a statutory tenant of the original transferee Abdul Sattar and Abdul Latif who had not given any notice under section 30 of D. Ps. Act to him, the provision of the Rent Restriction Ordinance will not apply and the Rent Controller bad no jurisdiction to pass the tentative order regarding the deposit of rent."

It was contended by the learned counsel for the respondents that the appellant's case himself being that he was a statutory tenant, he cannot take up the plea in this second appeal that he was not a statutory tenant.

In reply it was contended by the learned counsel for the appellant as follows;---

(a) There was nothing in the memo. of appeal in Appeal No. 22 of 1973, whereby it could be said that the appellant's case was that he was a statutory tenant.

(b) The observations in the order, dated 15‑12‑1973, of the learned Dis trict Judge, Jacobabad, could not amount to an admission on the part of the appellant that he was a statutory tenant.

(c) That the memo. of appeal in Appeal No. 22 of 1973, was premised on the challenge to the Rent Controller's order, dated 24‑9‑1973 and with this background the memo. of appeal of the appellant should be looked into.

(d) That the admission, if at all, can be considered as an admission, was an admission on a point of law.

(e) In any case the admission has been proved to be false on the face of the pleadings, as possession of the appellant has not been shown to have been prior to December, 1958, and as such his possession is not a possession as defined by section 2(6) of the D. P. Act of 1958.

3. From a perusal of the memo. of appeal of the appellant in Appeal No. 22 of 1973 and the order dated 15‑12‑1973, of the learned District Judge, Jacobabad, it is clear that the case of the appellant was that he was a statu tory tenant. The case of the landlord was also that the appellant was a statutory tenant. Further, in the memo. of appeal in Rent Appeal No. 13 of 1975, filed by the appellant against the order of ejectment of the Rent Controller, there is no averment on the part of the appellant that he was not a statutory tenant. The contention of the learned counsel for the appel lant, at this stage in second appeal that the appellant was not a statutory tenant, cannot be accepted. It had also been contended by the learned counsel for the appellant that Appeal No. 22 of 1973, filed by the appellant was not a competent appeal, as no final order of ejectment had been passed by the Rent Controller and his order, dated 24‑9‑1973, holding that relation ship of landlord and tenant existed between the parties was not an appeal able order and as a consequence the order, dated 15‑12‑1973, of the learned District Judge, Jacobabad, was also of no consequence. No doubt after the decision of the Supreme Court in 1969 S C M R 720, the law had be come clear that such an appeal was not competent ; nevertheless the stand/ plea taken by the appellant in his memo. of appeal and that portion of the order of the le, rned District Judge, Jacobabad, which referred to the case put upon behalf of the appellant can be taken note of. The case of the appellant before the learned District Judge in Appeal No. 22 of 1973, was not that the appellant was not a statutory tenant and that the argument raised about the Section 30 notice was an argument in the alternative. the appellant's case being that he was not a statutory tenant. In the appeal against the order, dated 24‑9‑1973 of the Rent Controller, the case of the appellant was that he was a statutory tenant.

4. As regards the contention that the admission of the appellant was an admission on a point of law, suffice it to observe that this was not an admission on a point of law. It had been asserted on behalf of the landlord that the appellant was a statutory tenant and this fact was admitted and such admission cannot be taken as an admission on a point of law. In the facts of the instant case, it is an admission on a point of fact. As regards the contention that the possession of the appellant was not a posses sion as defined under section 2(6), of the Displaced Persons Act of 1958, it may be observed that the appellant had accepted and admitted that he was a statu tory tenant. He never raised a plea that be had come into possession after December, 1958 and as such he could not be treated as a statutory tenant.

If such a plea had been taken, it would have been apparent from the pleadings and an issue would have been struck or evidence would have been led in that context by the parties before the Rent Controller while he was deciding the preliminary issue relating to existence of relationship of landlord and tenant between the parties. The case of the appellant that he had come into possession after December, 1958 and as such be could not be a statutory tenant having not been taken up either before the Rent Controller in his pleadings or in the evidence and the point also not having been taken up before the First Appellate Authority, such a plea cannot be allowed to be raised in second appeal.

5. The tantative rent order has been attacked by the learned counsel for the appellant on the ground that it was based on the municipal drainage tax and not on the basis of municipal assessment. According to the learned counsel for the appellant such a basis could not be considered as lawful basis for the purposes of passing a tentative rent order. On the basis of the docu ments and other evidence before him, a tentative rent order had been passed by the Rent Controller fixing Rs. 25 per month as the tentative rent and directing the appellant to deposit rent. After the defence had been struck off and ejectment had been ordered by order, dated 31‑3‑1975, of the Rent Controller, as observed earlier, Kent Appeal No. 13 of 1975 had been filed. A perusal of the memo. of appeal in Rent Appeal No. 13 of 1975 shows that the tentative rent order has not been attacked on the ground that the fixation of the tentative rent at Rs. 25 per month on the basis of drainage tax was illegal. From the impugned order, dated 17‑2‑1976, also it is obvious that no such plea was raised before the learned Additional District Judge, Jacobabad. Such a plea cannot be allowed to be raised for the first time in second appeal. Even otherwise, the rent fixed by the Rent Controller by his order, dated 24‑9‑1973, was tentative in character and I find nothing arbitrary or capricious in the order of the Rent Controller.

6. I find no merit in this appeal. Second Appeal No. 56 of 1976 is dismissed with costs. The appellant is, however, granted time till 31‑12‑1983 to vacate the premises subject, however, to regular deposit of rent.

M. B A Appeal dismissed.

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