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Petition No.3978 of 1984, decided on 21st April; 1986

‑‑‑Art .199 Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Application for ejectment, filed before Issuance of P.T.D./P. T.O,,‑‑Maintainability‑‑Locus Standi of applicant‑‑A person would become transferee of evacuee property on issuance of P.T.D. or transfer order in his favour. Transferee would thus have no locus standi to claim rent from occupant prior to issuance of P. T. D. /P. T.0‑ Order passed earlier by Rent Controller determining liability to pay rent would, therefore, be nullity in the. eye of law.

Attaul Haque and 2 others v. H. Malik Electric Co. P L D 1971 Lah. 1007 ref.

‑‑‑Art.199‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959) S.13‑‑Extraordinary jurisdiction‑‑Defaulter‑‑Findings on question of default recorded by Rent Controller/Appellate Authority in absence of any jurisdictional error or illegality, held, could not be called in question by invoking writ jurisdiction of High Court‑‑Mere fact that a different conclusion could be arrived at would hardly justify interference by High Court in exercise of its extraordinary jurisdiction.

Zulfikar Khan Awan v. The Secretary Industries and Mineral Development, Government of the Punjab, Lahore and 8 ethers 1974. S C M R 530; Noor Muhammad v. Sarwar Khan and 2 others P L D 1985 S C 131 and Muhammad Hussain Munir and others v . Sikandar and others P L D 1974 S C 139 ref.

‑‑‑Art.199‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Cause of actiop‑‑Eviction proceedings started before issuance of transfer order‑‑Petitioner having no cause of action at that time‑‑Transfer Order of property issued during pendency of proceedings‑ Held, cause of action had matured and petitioner could continue eviction petition which was not originally competent and could not now be thrown out on ground of locus standi‑‑Tribunals of competent jurisdiction having come to positive finding that tenant was not defaulter, High Court in constitutional jurisdiction could not interfere with findings recorded by Tribunals of competent 'jurisdiction.

Sh. Fazal Muhammad v. Sh. Muhammad Shafi and 2 others 1983 C L C 261 ref.

Ch. Khurshid Ahmad for Petitioner.

Nemo for Respondents Nos.1 and 2.

Mahfoozul Haq for Respondent No.3.

Date of hearing: 19th March, 1986.

This constitutional petition assails the orders, dated 4‑12‑1983 and 15‑4‑1984, passed respectively by a learned Rent Controller, Lahore a learned Additional District Judge (appellate .authority under the art Restriction Ordinance, 1959), Lahore.

The dispute relates to Shop No.30 forming part of Dinga Singh Puildings bearing Property No. S‑37‑R/161, Beadon Road, Lahore. This building was treated as big mansion by the Settlement Department Shop No.30 was in possession of Messrs London House Tailors, respondent No.3 (hereinafter referred to as the respondent). This property was transferred to three persons i.e. (1) petitioner Ata‑ul‑Haq, (2) Inam Hassan Khan and (3) ‑ Yaqoob Alam. The aforementioned transferees were informed vide‑ letter, dated 24‑8‑1960 that by negotiation against the price of Rs.4,21,410 on the basis of 55 years gross rent, this property stood transferred to them Vide letter dated 14‑10‑1965, the Additional Settlement Commissioner informed the petitioner that notion4l possession already stood delivered to the transferees. It appears that as result of private distribution amongst Ata‑ul‑Haq, Inam Hassan Khan and Yaqoob Alam aforesaid, the shop in question viz. Shop No.30 fell to the petitioner's (Ata‑ul‑Haq) lot and the other transferees have no dispute over this question.

3. A notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Annexure 'D' to the present writ petition) was served by the petitioner requiring the respondent to pay the rent at the rate of Rs.250 p.m. from 24‑8‑1960 to 30‑6‑1961 and at the rate of Rs.100 p.m. from 1‑7‑1961 to 30‑11‑1965 (the date of notice). Immediately after the service of this notice, the assessment was increased from Rs.100 to Rs.200 vide Annexure 'G' to this writ petition.

4. The respondent did not comply with the requirements of the notice and the petitioner filed an eviction application on 21‑2‑1966 (Annexure 'A' to the writ petition) seeking eviction on the ground of default in payment of rent.

The respondent, of course, resisted the eviction application. He denied his liability to pay the rent as he questioned the title of the petitioner and had submitted that the dispute regarding title was then pending before the High Court and that the rent of the premises was assessed as Rs.25 and not Rs.100 as demanded in the notice.

Originally a preliminary issue was framed about the existence of relationship of landlord and tenant between the parties and that if a valid notice under section 30 of the Displaced Persons (Compensation and Rehabilitation). Act 1958 was served by the petition the respondent.

5. After recording some evidence, preliminary issues were decided in favour of the petitioner and an order under section 13(6) of the Rent Restriction Ordinance, 1959, was passed on 14‑9‑1967. As per said order the liability to pay the rent was determined as Rs.32 from 24‑8‑1960 till 30‑6‑1961 and from 1‑7‑1961 to 31‑8‑1967 at the rate of Rs.100 p.m. The arrears thus amounting to Rs.7,728 were required to be deposited before the 15th of November, 1967 and the future rent with effect from 1‑9‑1967 was required to be deposited at the rate of Rs.100 p.m. before the 15th of every succeeding month. The respondent, however, challenged the' order, dated 14‑9‑1967, before the appellate authority as at that stage such an interlocutory order was appeal able. The appeal was accepted by the Additional District Judge. The petitioner filed a second appeal against the order of the Additional District Judge before this Court viz. S.A.O. No.251 of 1968. This appeal was admitted to regular hearing, but in 1975 it was adjourned sine die till the dispute about title then pending before the Honourable Supreme Court of Pakistan was decided.

6. The dispute about the title was decided in favour of the petitioner by a Letters Patent Bench of this Court while disposing of L.P.A. No.185 of 1965, vide judgment reported as P L D 1971 Lah. 332. Against the order of the Letters Patent Bench, leave was granted by the Supreme Court on 7‑1‑1971. The appeal was ultimately decided by the Supreme Court on 5-4‑1983 and the same was dismissed and thus title of the petitioner was upheld.

After the disposal of the appeal by the Supreme Court, the S.A.0. was taken up and vide this Court's order, dated 8‑5‑1983 (Annexure 'P' to the writ petition) the impugned orders were set aside and the case was remanded for being decided on merits in accordance with law.

It may be pointed out that afer the decision of the letters patent appeal, the Settlement Department issued a regular transfer order in favour of the petitioner on 3‑8‑1976 (Annexures 'T' to the writ petition).

7. After the decision of the S.A.O., the learned Rent Controller framed the following issues for the disposal of the eviction application:‑

(1) Whether the respondent is a defaulter O.P.P.

(2) Whether the petitioner has no cause of action O.P.R.

(3) Whether the disputed property has been incorrectly described O.P.R.

(4) Whether the petition is not maintainable O.P.R.

(5) Whether this Court has no jurisdiction O.P.R.

(6) Whether a legal notice of transfer was to be served on the respondent If so its effect. O.P.R.

(7) Relief.

8. After recording the parties evidence, issue No.1 regarding default was decided against the petitioner, issues Nos.2 to 5 were not pressed by the respondent and regarding issue No.6, it was held that transfer in favour of the petitioner took place in August, 1976, when transfer order was issued in his favour, but by that time, the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had already been repealed and, therefore, there was no requirement of service of notice under section 30 ibid. On the basis of these findings, the learned Rent Controller vide his judgment, dated 4‑12‑1983, dismissed the eviction application of the petitioner.

The petitioner went in appeal and the learned appellate authority (Additional District Judge) Lahore, dismissed the appeal on 15‑4‑1984 and upheld the findings of the learned Rent Controller.

9. It has been vehemently argued on behalf of the petitioner that in fact, the premises in question were transferred in his favour in 1960 notional possession was also given to him then and thus he was entitled to recover rent from the occupant of the premises under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which was then in force from the said date. It has further been urged that order passed by the Rent Controller under section 13(6) of the Urban Rent Restriction Ordinance, 1959, has not been complied with by the respondent and, therefore, he was liable to be evicted.

10. These arguments have no substance. Under law, a person becomes the transferee of an evacuee property when the P.T.O. or T.O. (in case of big mansion or industrial concern) is issued in his favour. 1 the present case, as already stated, transfer order was issued in favour of the petitioner for the first time on 3‑8-1976 and, therefore, he had no locus standi to claim rent from the occupant of the premise prior to the said date. In this view of the matter, the order earlier passed under section 13(6) of the Urban Rent Restriction Ordinance, 1959, is a nullity in the eye of law, as already set aside while accepting the S.A.O.

11. It has also been urged on behalf of the petitioner that the learned Rent Controller and the learned appellate Authority have wrongly come to the conclusion that the respondent was not a defaulter in Government of rent.

This contention has been considered. It is an admitted fact that dispute about the title and the validity of transfer in favour of the petitioner has been finally settled by the Supreme Court of Pakistan on 5‑4‑1983. It is also an admitted position that the Supreme Court had ordered the respondent to continue to deposit the rent with the Settlement authorities and he had been complying with that direction. After the decision by the Supreme Court, a sum of Rs.600 has been deposited as rent with the Rent Controller. In such circumstances, the Rent Controller and the learned appellate authority cannot be said to be far wrong in arriving at the conclusion that the respondent was not a defaulter in payment of rent, muchless a wilful defaulter. The findings on the question of default recorded by the learned Rent Controller and the learned appellate authority in the absence of any jurisdiction a error or illegality cannot be called in question by invoking the writ jurisdiction of this Court. A Court or tribunal of competent jurisdiction has the power to decide an issue pending before it rightly or wrongly and the mere fact that on the basis of evidence before such Court or Tribunal, a different conclusion can be arrived at, hardly justifies interference by the High Court in exercise of its extraordinary Jurisdiction.

In Zulfikar Khan Awan v. The Secretary, Industries and Mineral Development, Government of the Punjab, La e and 8 others 1974 S C M R 530, it was held:‑

"Tribunal having jurisdiction to decide a matter is competent to decide it rightly ox wrongly and mere fact .that decision is incorrect does not render the decision as without lawful authority. "

Similarly, in Noor Muhammad v. Sarwar Khan and 2 others P L D 1985 . S C 131, it has been observed:‑

"Before parting with the case, we may observe that there is an increasing tendency to file Constitutional petitions even when the Courts whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it 'without lawful authority' and certainly not illegal:"

While making these observations, reference has been made to the well‑known case of Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139.

12. As already observed, the learned Rent Controller and the learned appellate authority were also justified while coming to the conclusion that prior to 1976 i.e. before the issuance of the T.O., the petitioner had no locus standi to claim rent from the respondent. In Attaul Haque and 2 others v. H. Malik Electric Co. P L D 1971 Lah. 1007, it has been held by a Letters Patent Bench of this Court that the rent would be payable to transferees not on the basis of the delivery of notional possession of the property but on account of issuance of its permanent transfer deed in their favour.

13. The learned counsel for the respondent has argued that apart from the merits of the case, the petitioner had no locus standi in regard to the ejectment petition culminating into the impugned orders. He has contended that the ejectment petition was filed in 1966, but by that time the T.O. was not issued in favour of the petitioner, which was issued ten years later on and, therefore, the petitioner could not seek the eviction of the respondent in 1966 and thus on this score alone the eviction application should have been thrown out.

This is true that in 1966, the petitioner had no locus standi o cause of action to file the eviction application, but during the pendency of the litigation viz. S.A.O. arising out of the eviction application, T.0, had been issued in his favour and, therefore, cause of action matured and thus he could continue the eviction application which was not originally competent when it was filed. In Sheikh Fazal Muhammad v. Sheikh Muhammad shafi and 2 others 1983 C L C 261, this Court observed-

"No doubt on the day when respondent No.1 moved the application for eviction the plea of personal need was not available to him but then the period of lease expired while the proceedings were still pending before the Rent Controller. Thus, even if respondent No.1 had not taken the said plea in the application as originally filed he could have moved the Rent Controller for the amendment of his application to incorporate the same as soon as the period of lease expired."

It was further observed that while exercising writ jurisdiction such a technical objection should not be entertained which would result in forcing the parties to another round of litigation.

14. It is thus concluded that although the eviction application was not legally competent as it was originally filed but during the pendency of litigation cause of action matured and, therefore, on the ground of locus standi it could not be thrown out, but so far as the merits o the case are concerned, the learned Rent Controller and the learned appellate authority who happened to be tribunals of competent jurisdiction, came to a positive finding that the respondent was not defaulter and this Court in exercise of its writ jurisdiction cannot interfere with such a finding recorded by tribunals of competent jurisdiction. In this view of the matter,, this writ petition must fail an is accordingly dismissed, but there shall be no order as to costs.

S.A. Petition dismissed.

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