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Petitioner: MRS. HAZRATBAI MERCHANT AND ANOTHER s VS Respondent: MUHAMMAD ISMA1L
Court Name: Sindh High Court Judge(s): Ajmal Mian Title: MRS. HAZRATBAI MERCHANT AND ANOTHER s vs MUHAMMAD ISMA1L Case No.: First Rent Appeal No, 333 of 1981 Date of Judgment:1983-01-08 Reported As: PLD 1983 Karachi 277 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' This 1st Rent Appeal is directed against the order dated 11-5-1981 passed by the learned Senior Civil Judge and Rent Controller, VIII at Karachi, in Rent Case No, 303/73 directing the present appellants to hand over the vacant possession of the premises in question to the respondent within a period of two months from the date of the order. ' The relevant facts leading to the filing of the above case are that bungalow bearing No, 450-JM, situated at M. Bahadur Yar Jang Road, Karachi (old No, 36/4 Clayton Road, Karachi) (hereinafter referred to as the bungalow) was allowed by the Rent Controller Karachi, to Appellant No, 2 in 1948. He paid rents to the Hindu owner Mr. M. G. Shahani as the lessee of the premises at Rs, 150 p.m. After that he sublet the upper floor to another person in August, 1948 uptil then Evacuee Laws were not extended to Karachi. It seems that the Custodian of Evacuee Properties was appointed in Karachi in November, 1949. Appellant No, 1 paid some rent to the Custodian Department. However, in June, 1954, he was issued a show-cause notice, to explain as to how, he had sublet the upper portion of the bungalow. After some litigation eventually the upper portion of the bungalow was allotted to the respondent on 21-11-1957 and he was put into possession on 1-1-1958. It seems that after the framing of the settlement scheme I under the Pakistan Displaced Persons (Compensation and Rehabilitation) Act, 1958, (hereinafter referred to as the Act) the bungalow was transferred to the respondent as a claimant displaced person and a P. T. 0. Dated 13-2-1960 was issued in his favour during the pendency of the appeal referred to hereinbelow. The appellants being aggrieved by the above transfer filed an appeal before the Additional Settlement Commissioner, Karachi, which was dismissed on 30-5-1960. The appellants went in revision against the above order, which was allowed by the Settlement Commissioner by
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his order dated 11-8-1961, whereby the transfer in favour of the respondent was cancelled and the bungalow was ordered to be transferred to appellant No, 1 Against the above order the respondent filed a second revision, which was dismissed by the Settlement Commissioner having the power of the Chief Settlement Commissioner by his order dated 8-5-1962. It further seems that in pursuance of the above order dated 11-8-1961 a P. T. 0. Was also issued in favour of appellant No, 1 on 18-10-1951. After that on 22-11-1961, the Settlement Department sent a letter to the respondent asking him to surrender his P. T. 0. The respondent being aggrieved by the above two orders filed Writ Petition No, 362/62, which was dismissed by a learned Single Judge of the erstwhile High Court of Sind and Baluchistan by a Judgment dated 1st June, 1962. The respondent being aggrieved by the above orders and Judgment filed, letters Patent Appeal No, 57/63, which was also dismissed by a division bench of the erstwhile High Court of Sind and Baluchistan through a Judgment dated 4-1-1967. The respondent went in appeal before the Supreme Court (bearing No, K-23/ 70), which was admitted on 2-6-1967 but no stay order was obtained by the respondent till 22-4-70. It seems that the above appeal was allowed by the Supreme Court through its Judgment dated 14-9-1972, whereby it set aside the above orders dated 11-8-1961 and dated 8-5-1962 passed by the Settlement Commissioner and the delegatee of the Chief Settlement Commissioner and the two Judgments of High Court passed in the aforesaid writ petition and the L. P. A. It further seems that on 26-10-1972 the respondent served a notice under section 30 of the act on the appellants, claiming therein that the P. T. 0. Was restored in his favour with effect from 13-2-1960 and that the appellants were liable to pay rent at the rate of Rs, 90 per month for the period from 13-2-1960 to 31-10-1972, amounting to Rs, 13,732,72. The above notice was replied to by the appellants on 5-12-1972, in which it was inter alia gated that the respondent could claim rent at the most for three years period from 5-12-1972. It also seems that after the above Supreme Court Judgment, the appellants filed a review petition before the Supreme Court on 14-9-1972, which was dismissed by a Judgment dated 27-2-1973 reported in 1974 SCMR page 477. It also seems that on 6-1-1973 i,e, before the expiry of 90 days from the service of the above notice under section 30 of the Act, the appellants filed a Miscellaneous Rent Application (No, 5/73) before the Rent Controller for permission to deposit rent for a period of three years preceding to the date of the Judgment of the Supreme Court. However on 30-1-1973, the respondent filed the above rent case for ejectment on the ground of default. The above application was resisted by the present appellants on various pleas. The learned Rent Controller on the basis of the pleadings of the parties framed the following five issues :- (1) "Whether the opponents are wilful defaulter in payment of rent ? If so since when? (2) Whether the notice under section 30 of D. P. Act served by the applicant upon the opponent is a valid notice in the law ? (3) Whether the opponent has caused such acts which have materially impaired the value and utility of the property in question? (4) Whether the opponent owned house or houses in the same urban area at the time of filing or after the institution of ejectment case against him or not? If so, what is the effect? (5) What should the order be? ' After recording the evidence and hearing of the parties, the Rent Controller allowed the above rent application in the above terms. The appellants being aggrieved by the above order have filed the present first rent appeal. 2. (a) In support of the above appeal Mr. Akhtar Mahmood Khan, learned counsel for the appellants has made following submissions :- (i) That the notice dated 26-10-1972 served on the appellants under section 30 of the Act was not valid as the respondent did not hold any P. T.
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0. At the above date. (ii) The relationship of the statutory landlord and tenant between the respondent and the appellants would have come into existence upon service of a valid notice under section 30 of the Act within one month from the date of P. T. 0. And not from the date of the Judgment of the Supreme Court. (iii) That under the law the respondent was entitled to recover rent for a period of three years from the date of restoration of the P. T. 0. Or in any case from the date of the Supreme Court Judgment. (iv) That since the appellants had deposited the rent in the Court in Miscellaneous Rent Application No, 5/73 within 90 days from the date of service of the above notice dated 26-10-1972 under section 30 of the act, there was no default committed by the appellants and the finding of the learned Rent Controller on the above ground is not sustainable. (b) On the other hand Mr. Ali Nazar, learned counsel for the respondent has urged the following points :- (i) That the effect of the Supreme Court Judgment dated 14-9-1972 was to restore the P. 1.0. Dated 13-2-1960 in favour of the respondent from the 'original date. (ii) That there was no valid tender of rent by the appellants to the respondent in terms of section 30 of the act. (iii) That the respondent was entitled to recover the arrears of rent from the date of original P. T. 0. And not for three years from the date of restoration of the P. T. 0. Or from the date of the Supreme Court judgment. (iv) That appellant -No, 1 owned other properties at the relevant time, and, therefore, the appellants were liable to be ejected on that ground. 3. It may be observed that the first three contentions advanced by both the learned counsel for the appellants noted hereinabove can be conveniently taken up together. It may be pertinent to quote hereinbelow the operative portion of the judgment of the Supreme Court, which reads as follows :- "These are all the points that have been urged before us, and since we have come to the conclusion that the appellant was a prior allottee and, therefore, bad a preferential right to the transfer of the property in dispute, we allow this appeal and set aside the Judgments and orders of the High Court, the Settlement Commissioner and the Chief Settlement Commissioner." ' It may be noticed that the Supreme Court by the above judgment allowed the respondent's appeal and set aside the orders of the Settlement Commissioner and the delegatee of the Chief Settlement Commissioner and the two judgments of the High Court passed in the aforesaid writ petition and the letters patent appeal. It has been contended by Mr. Akhtar Mahmood Khan that since the Supreme Court in its above judgment or in the judgment given upon the review petition filed by the appellants has not expressly restored the original P. T. O. In favour of the respondent retrospectively, it cannot be held that the P. T. 0. Stood restored from its original date, particularly in view of the fact that the respondent after the judgment of the Supreme Court approached the Settlement Department and got the P. T. 0. Restored by an order dated 20-4-1973 duly endorsed on the P. T. 0. In my view the above contentions are devoid of any force. The effect of the Supreme Court judgment was to remove from the field the order of the Settlement Commissioner dated 11-8-1961, the order of the delegatee of the Chief Settlement Commissioner dated 8-5-962, the judgment of the learned Single Judge dated 1-6-1962 passed in the aforesaid writ petition and the judgment of the letters patent appeal dated 4-1-1967 and to restore the P. T. 0. Dated 13-2-1960 transferring the bungalow in favour of the respondent. By the above judgment the parties were placed in the same position in which, they were prior to the passing of the above orders and judgments in favour of the appellants, with the result that the P.T.O. Issued in favour of
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the respondent on 13-2-1960 stood restored upon the pronouncement of the Supreme Court judgment. In my view, there was no need for the respondent to approach the Settlement Department for restoration of the P. T. 0. The alleged restoration of the above P. T. 0. By a formal order dated 20-4-1973 is of no legal consequence. In this view of the matter, the respondent was entitled to serve a notice under section 30 of the act on 26-10-1972 after the pronouncement of the above Supreme Court judgment. The notice served by the respondent was, therefore, a valid notice. It may also be observed that upon the service of the above notice, the statutory relationship of the landlord and tenant between the respondent and the appellants respectively came into existence and that the respondent was entitled to demand the arrears of rent. (4) It was also urged by Mr. Akhtar Mahmood Khan that there is a distinction between determination of an entitlement of a person to get a property transferred in his favour and the actual issuance of a P. T. 0. And that in the instant case the Supreme Court had only determined the entitlement of the respondent to get the bungalow transferred but had not restored the P. T. 0. With retrospective effect. ' In support of the above contention, he has referred to the case of Murree Hill Transport Company Ltd. v. Agha Ghulam Jilani (1) the. Case of Abdul Haq and two others v. H. Malik Electric Company (2) and the case of Shabir Ahmed V. Mst. Kabirunnisa and others (3). ' In the above first case a division bench of the Lahore High Court held that the word "transfer" conveys different meanings in different context and that in a broad sense it means "disposed of" or "sell". It was further observed that under the provision of the settlement scheme No, 1 a property can also be deemed to have been transferred for certain purposes after the issuance of a P. T. 0., namely, under paragraph 37 of the scheme for purposes of leasing out the property or for mortgaging. It was also held that till the time a P. T. 0. Is granted, the property cannot be said to have been transferred. It was also pointed out that under rule 2 of the permanent transfer rules the term "proposed transferee" means a person who is entitled to the property under the act and a provisional transferee means a person to whom property has been provisionally transferred. It was further pointed out that a person, who is found to be entitled to transfer of a property by the order of transfer is no more than a "proposed transferee". ' In the above second case another division bench of the Lahore High Court reiterated the above earlier judgment of the division bench, reported in PLD 1970 Lab. 864: It was also observed that a permanent transfer will take place after the full price and the settlement fee are paid and a permanent (1) PLD 1970 Lab. 864 (2) P L D1971 Lah. 1007 (3) PLD 1975 SC 5f$ transfer order is issued. It was also held in the above case that the Rent Controller's order directing the deposit of rent beyond the period of three years was in excess of his jurisdiction in view of the dictum of the Supreme Court, reported in PLD 1968 SC 230 referred to hereinbelow in para. 5. ' In the third case referred to hereinabove the Supreme Court of Pakistan was pleased to take the same view, which was found favour with the Lahore High Court in the above cases. It was held that a transferee referred to in section 30 of the act is a person in whose favour at least a P. T. 0. Has been issued and, therefore, mere order determining the entitlement to transfer, does not amount to a transfer nor does it make a person in whose favour such an order has been passed a "transferee" within the meaning of the act.
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' The above cases have no application to the instant case. In my view in the instant case the question before the Supreme Court was not only confined to the determination of the entitlement of the parties, but the Supreme Court was also to decide, whether the cancellation of the P. T. 0. Of the respondent was justified or not. It is not a case where no P. T. 0. Was issued. If the matter would have been under litigation between the parties without issuance of a P. T. 0. In favour of the respondent and appellant No, 1, the above contention of Mr. Akhtar Mahmood might have some force, but in the instant case it has no direct bearing. 5. As regards the question, whether the respondent was entitled to recover rent from the date of the P. T. 0. Or from the date of the Judgment of Supreme Court for a period of three years or from the date of the formal restoration of the P. T. 0. On 20-4-1973, it may be observed that Mr. Akhtar Mahmood has referred to the two cases of the Supreme Court on the above point, namely, the case of Ashfaquer Rehman v. Ch. Muhammad Afzal (1) and the case of Ashfaqur Rehman v. Ch. Muhammad Afzal (2) in which the Hon'ble Supreme Court of Pakistan while construing the words "all rent due from him" used in subsection (6) of section 13 of the late W. P. U. R. R. Ordinance, 1959, held that it means the rent lawfully due and, therefore, time barred rent cannot be ordered to be deposited under the above provision. There cannot A be any cavil with the above proposition of law. In the instant case if the matter would not have been under litigation between the parties as to the entitlement, the respondent would have been entitled to recover rent for a period of three years or three years 3 months preceding to the filing of rent case. However, in the instant case the Supreme Court held on 14-9-1972 that the cancellation of the P. T. 0. In favour of the respondent was illegal and that the transfer in his favour was legal and valid and, therefore, fresh cause of action accrued to the respondent on the above date of the Judgment of the Supreme Court. The respondent could not have filed any legal proceedings prior to the Judgment of the Supreme Court for the recovery of rent as the question in whose favour the P. T. 0. Was validly issued, out of the two contesting parties was in issue before the Supreme Court. The effect of the judgment of the Supreme Court as observed hereinabove in para. 3 was to restore the P. T. 0. In favour of the respondent from the date on which it was issued. In this regard, it may be pertinent to refer to the case of Ataullah Malik v. Rasheed and another (3), relied upon by Mr. Ali Nazar, learned counsel for the respondent, in which a division bench of the erstwhile High Court of Sind and Baluchistan at Karachi, while construing the word "due" used in Article 110 of the Limitation Act held that due means "due in law or recoverable in an action at law" and that suit for recovery of rent can only (1) PLD 1968 SC 230 (2) PLD 1971 SC 766 (3) PLD 1972 Kar. 27 be filed when rent becomes legally recoverable. It was further held that the limitation period would run for a suit from the date when the cause of action accrued. It may be stated that in the above case the facts were that the respondent had purchased the property from a Hindu by a sale-deed in 1947. The sale was confirmed in 1950. The matter went in revision before the Additional Custodian, which was dismissed on 19-11-1960. On 20-10-1961 respondent filed a suit for the recovery of rent from his tenant for the period from 15-12-1950 to 14-10-1961. It was contended by the tenant in defence that the suit beyond the period of three years was time-barred. However, the learned trial Court decreed the suit, which decree was maintained by the first appellate Court and in second appeal the High Court maintained the two judgments/decrees of the Courts below and held that the rent for the entire period of about 10 years became duly only on 19-11-1960, when the final order of con-firmation was passed by the Additional Custodian (Judicial) and the respondent
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became entitled to sue for recovery of the above arrears of rent and that suit was filed on 20-10- 1961 within three years from the above date of cause of action. 6. As regards the fourth contention of Mr. Akhtar Mahmood Khan that since the appellants had deposited rent in the Court in Mis. Rent Application No, 5/73 within 90 days from the service of the notice dated 26-10-1972 under section 30 of the act, there was no default committed by the appellant, it may be observed that on the other hand Mr. Ali Nazar has urged that there was no proper tender of rent for three reasons, namely, firstly that the rent was not directly tendered to the respondent, secondly, that it was not for the entire period and thirdly that even the deposit made by the appellant with the Rent Controller was not unconditional, but with the reservation. In this regard it may be pertinent to observe that after the pronouncement of the Supreme Court Judgment on 14-9-1972, the appellants had filed a review petition before the Supreme Court. After that in response to the respondent's above notice dated 26-10-1972 under section 30 of the act filed an application for deposit of rent in Court under section 13 of the late W. P. U. R. R. Ordinance, 1959 (Miscellaneous Rent Application No, 5/73), in which the appellants had narrated the background of the case and prayed for the permission to deposit the balance of the arrears of rent for the period commencing from 26-10-1969 to 31-1-1973, amounting to Rs, 2,123.32 after adjusting the Government and K. M. C. Taxes paid i,e, rent Rs, 3,533-Rs, 1,409.68 taxes paid balance Rs, 2,123.32. It may be pertinent to quote hereinbelow the relevant portion of para. 9 of the above application and the order passed thereon by the Rent Controller, which read as follows :- "Para. 9.-It is, therefore, prayed by the applicants : (a) That as the matter of transfer of ownerships of the bunglow is subjudice before the Supreme Court and no stay order has so far been obtained by the applicants and as notice under section 30 of Displaced Persons Act has been served upon them by the opponent on 26-10-1972 and the statutory period of three months expires on 25th January, 1973, and in view of the fact that the opponent's cancelled P. T. 0. Would require consideration by the Hon'ble Court it would be in the interest of justice and without prejudice to the legal rights of the applicants in the said Review application before the Supreme Court that the applicants be allowed under protest and without prejudice to their legal rights to deposit rent in Court at the rate of Rs, 90 per month from the date of the opponent's notice under section 30 namely 26-10-1972 and for three years prior to that date after deducting K. M. C. And Government property taxes paid by the applicant and to deposit future rent in Court every month, till the final adjudication of the matter in dispute by the Supreme Court in the said Review application as follows - (b) It is also prayed that the opponent be not allowed to withdraw the rent till the disposal of the Review application in the Supreme Court. In case for any ground the opponent is allowed by the Hon'ble Court to withdraw the deposited rent, he should be made to furnish security for the withdrawn amount so as to re-deposit in Court in case the Review application in Supreme Court is decided against him." ORDER "Admit. Register. Let the rent be deposited with the Nazir of this Court at the risk of the applicant with notice cost to other side. ' The deposit will not absolve the applicant the effect of the default already committed nor bind the landlord to accept the deposit as sufficient tender as to arrears or/rate of rent. The application stands disposed off accordingly. (Sd.) Civil Judge/Rent Controller, Karachi : 6-1-1973." ' It may be noticed that the appellants through the above application deposited the rent not for the period commencing from 13-2-1960 i,e, from the date of P. T.
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0. But from 26-10-1969 i,e, three years prior to the date of service of the notice dated 26-10-1972 and three months one week subsequent to the date of service of the above notice. It may further be noticed that it was also prayed by the appellants that the respondent may not be allowed to withdraw the rent till the disposal of the review application pending in the Supreme Court and that in case the respondent was allowed by the Honourable Court to withdraw the deposited rent, he should be made to furnish security for the withdrawal so as to re-deposit in Court, in case the review application in the Supreme Court was decided against him. 7. Mr. Ali Nazar has referred to the case of Muhamnad Shafi v.- Abdul Hayee-(1), the case of Muhammad Rizwan v. Ashiq Ali (2) and the case of Muhammad Umar v. Muhammad Yousuf (3). ' In the first case a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Bench held that the fact that the relationship of landlord and tenant was created between the parties under section 30 of the act by itself could not warrant an action in clause 6 of section 13 of the W. P. U. R. R. Ordinance, 1959 and that the Rent Controller could ask the tenant to deposit the rent only if he had jurisdiction in the case, which he could not have in the said case as the appellant/tenant had not contravened the provisions of sub-clause (1) of clause 3 of section 30 of the act and that the period of three months bad not expired. ' Whereas in the second case a learned Single Judge of the erstwhile High Court of West Pakistan sitting at Quetta held that a statutory tenant under section 30 of the act loses the protection of the above section if (1) PLD 1965 Lah. 681 (2) PLD 1966 Quetta 11 (3) p L D 1977 Lab. 676 after the transfer of the property, he has sublet or parted with the possession of the house or shop or any part thereof or has committed acts which are destructive or injurious to the property and upon cessation of the protection, the relationship between a transferee and a tenant is to be regulated in accordance with the law applicable to the landlord and tenant. It was further held and that application under the W. P. U. R. R. Ordinance, would be competent only if subsections (2) and (3) of section 30 of the act have come into operation and happening events enumerated and, therefore, first a finding is to be recorded, whether any such event had happened in order to confer jurisdiction on the Rent Controller under the Rent Restriction Ordinance. ' Whereas in the third case a learned Single Judge of the Lahore High Court inter alia held that a deposit of rent with the Rent Controller instead of tendering the rent to the landlord after receipt of a notice under section 30 of the act is not a good tender and that it is like payment due to the landlord to a third person not connected with the landlord. It may be observed that in the above case there was…
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