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Writ Petition No. 4643 of 1983, decided on 24th March, 1984.

---S.13-A--Provisional Constitution Order (1 of 1981), Art. 9--Notice- Tenant contending that since landlord did not send him a notice under S. 13-A of Ordinance on demise of their father (to whom property was originally transferred by Settlement Department), he could not be ejected on ground of default in payment of rent--Held, since there was no evidence that transfer order of property was originally issued in favour of father of landlord, provisions of S. 13-A were not attracted--Such plea, held, was also not specifically taken in pleadings filed before Rent Controller--Constitutional petition dismissed, in circumstances.

M.Nawaz Kasuri fox Petitioner.

Muhammad Mahmood for Respondents.

Date for hearing: 24th March, 1984.

The petitioner has in the present writ petition assailed the validity of the ejectment order passed against him by the learned Rent Controller, Lahore, on 30-6-1983, as affirmed by the learned Additional District Judge, Lahore, vide his order dated 12-9-1983.

2. On 4-4-1979, respondents Nos.1 to 9 f31ed an application for the eviction of the petitioner from Property No.S-49-R-58 situated at Chamberlane Road, Gowalmandi, Lahore. They alleged that the petitioner was in occupation of the property as a tenant but in spite of 'notice he had failed to pay or tender rent. The petitioner contested the application denying the existence of relationship of landlord and tenant between the parties. According to him, the transfer order in respect of the property in dispute issued in favour of the respondents was the result of fraud and collusion and that a suit for the cancellation of the transfer order was sub judice in the Civil Court at Lahore. He also contended that no notice as required by law had been served on him and that the respondents were not entitled to claim the rent. He further pleaded that the ejectment application was bad for non-joinder of necessary party and that respondents Nos. 1 to 9 had no cause of action. The learned Rent Controller framed the following issues:-

(1) Whether the relationship of landlord and tenant exists between the parties O . P . P .

(2) Whether no cause of action is available to the petitioners against the respondent O.P.R.

(3) Whether the petition is bad for non-joinder of necessary party O. P. R.

3. The parties adduced their evidence for and against the issues. The learned Rent Controller after appraising the evidence found the issues against the petitioner. Since non-payment of rent by the petitioner was admitted, the learned Rent Controller held that no further proceed ings were called for and passed the order of ejectment against the petitioner, giving him a period of thirty days for the vacation of the property. Feeling dissatisfied, the petitioner filed an appeal which was heard by the learned Additional District Judge, Lahore. The only plea which was agitated before the learned Additional District Judge was that no notice as contemplated by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had been given to him. The learned Additional District Judge repelled this contention on the ground that after the repeal of the evacuee laws, the notice was no longer necessary.

4. The sole contention which has been pressed into service by the learned counsel for the petitioner in this Court is that since respondents Nos. 1 to 9 on the demise of their father to whom the property was originally transferred by the Settlement Department did not send a notice to the petitioner as required by section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959, he could not be ejected on the ground of default in the payment of rent. This contention has been controverted by the learned counsel for respondents Nos. 1 to 9 on the plea that the property was in fact transferred to respondents Nos. 1 to 9 and not their father. In support of this plea reliance is placed on the statement of Nawazish Ali, an official of the Settlement Department, examined by respondents Nos. 1 to 9 before the learned Rent Controller. He stated as AW-1 that according to the record of the Settlement Department, the transfer order of the property was issued in favour of respondents Nos. 1 to 9. The petitioner also admitted that the property had been transferred to respondents Nos.1 to 9, although according to him the transfer was manoeuvred fraudulently. Since there is no evidence that the transfer order of the property was originally issued in favour of the father of respondents Nos. l to 9, the provisions of section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959, are not attracted. Moreover, this plea was not specifically raised in the pleadings filed before the Rent Controller.

5. For the foregoing reasons, I find no substance in this writ petition and dismiss the same, leaving the parties to bear their own costs.

6. At this stage, a prayer has been made on behalf of the petitioner that he may be given some time to vacate the property in dispute. The petitioner shall vacate the property in dispute and deliver its possession to respondents Nos.1 to 9 within two months from today.

M.B.A. Petition dismissed.

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