' The subject-matter of this second appeal is an order of ejectment passed against the appellant, Khuda Bakhsh in consequence of an application made by one Mian Haji Mohammad under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Mian Haji Mohammad died during the pendency of the application whereupon Mian Fazal Din and others were brought on record as his legal representatives.
2. The order of ejectment is in respect of a shop which was an evacuee property. It was transferred to Mian Haji Mohammad aforesaid under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to asthe said Act. At the time of its transfer, the appellant was in possession of the shop. Thus, he became a statutory tenant under Mian Haji Mohammad. Mian Haji Mohammad served the appellant with a notice under section 30 of the said Act asking him to pay rent at the rate of Rs, 75 per mensum but the appellant did not do so. He, therefore, sought his ejectment on various grounds including that of default.
3. The appellant resisted the application but his ejectment was ordered by the Rent Controller, who was seized of the application, on the ground of default. The appellant went in appeal against the order of the learned Rent Controller but without success. He has, therefore, come up in second appeal to this Court.
4. Learned counsel for the appellant conceded that the respondents' predecessor-in-interest, Mian Haji Mohammad did serve the appellant with a notice under section 30 of the said Act but he filed the ejectment petition before the expiration of 3 months period specified in clause (i) of subsection
(3) of section 30 of the said Act and thus the appellant's ejectment could not be ordered on the ground of default. Learned counsel for the appellant cited Abdur Rashid v. Jamul Din and others1 and Amir Hussain v. Syed Mahmood Ali to support his contention. In these two cases it was held that an ejectment application filed before the expiry of three months from the date of notice under section 30 of the said Act was premature and was, therefore, liable to be dismissed.
5. In reply, learned counsel for the respondents maintained that out of the said period of three months, only 3 days were left when the ejectment proceedings were initiated against the appellant and since the whole period of three months expired during the pendency of the ejectment proceedings with the learned Rent Controller, the two tribunals below were justified in ordering the ejectment of the appellant by treating him as a defaulter. In this connection, he relied on Abdullah Bhai and others v. Ahmad Din, Mst. An:ina Begum and others v. Mehr Ghulam Dastagir, Manzoor Ahmad Khan v. Syed Maqsood Alland Messrs M. Wahab-u-Din & Sons v. The Controller of Rents and 11 others.
6. The principle enunciated in the authorities cited by the learned counsel for the respondents is that if the cause of action for any legal proceedings matures during the pendency of those proceedings the part initiating the proceedings should not, with a view to avoiding multiplicity the proceedings, be non-suited simply for the reason that he had launched the proceedings before the cause of action had matured. This principle can be safely extended to the matter before me.
7. The facts of the case of Manzoor Ahmad Khan, which is one of the authorities cited by the learned counsel for the respondents, are, to a great extent, similar to those of the present case. In Manzoor Ahmad Khan's case an Additional District Judge, Qazi Mohammad Dastgir had non-suited a landlord on the ground that as the requisite period had not expired after the service of notice under section 30 of the said Act, the ejectment application filed by him was immature. His order was, however, set aside by my Lord Mr. Justice K. E. Chauhan (now a Judge of the Supreme Court) with the following observation :- "It is to be pointed out that in Abdullah Bhai and others v. Ahmad Din their Lordships' of the Supreme Court held that 'it was open to the appellate Court to have decreed a suit which was premature when it was filed but the cause of action respecting which had arisen during the pendency of the suit'. This is the course which exactly was followed by the earlier Additional District Judge and there was as such no illegality in his order. Another thing to be further noticed is that in the instant case on the date when the order for deposit of rent was passed on 28-6-1955 by that time the petition was not premature in any manner and the question of prematureness, therefore, on the facts and in the peculiar circumstances of the present case really had no significance. Qazi Mohammad Dastgir attached undue importance to the same so as to make it a ground for upsetting the well-considered judgments on the subject in hand passed by the learned Rent Controller and the earlier Additional District Judge. A similar view was taken in Akhtar All Parvez v.
Altafur Rehman where it was held that prematureness did not remain a defect if cause of action matured during the pendency of the case. The view taken by Qazi Mohammad Dastgir goes contrary to the law declared by the Supreme Court in the case referred to above."
8. The cases of Mst. Amine Begum and others and Messrs Wahab-ud-Din & Sons relate to the period of protection of 6 years afforded to a person occupying an evacuee property at the time of its transfer under section 30 of the said Act. The relevant provisions are contained in paragraph (b) of the proviso to subsection (1) of section 30. Like the safeguard of notice required to be served under clause (1) of subsection (3) of section 30, which is under examination, the said protection of 6 years is a safeguard provided by law, It was, however, ruled in the said two cases -one decided by the Supreme Court and the other by the Peshawar High Court that if the ejectment application is filed against the occupier of the evacuee property, who becomes a statutory tenant thereof under its transferee, by operation of the provisions of section 30, and that period expires during the pendency of the application, the landlord2 3 4 5 6 (transferee) should not be non-suited on the short ground that he had initiated ejectment proceedings before the protection period had run out.
9. The case of Manzoor Ahmad Khan, cited by the learned counsel for the respondents, was decided after the disposal of the cases of Abdur Rashid and Amir Hussain relied upon by the learned counsel for the appellant. The view taken in Manzoor Ahmad's case is also in accord with the opinion expressed by their Lordships of the Supreme Court in the cases of Abdullah Bhai and others and Mst. Amino Begum and others. Similar view was taken in the case of Messrs Wahab-ud- Din & Sons. I, therefore, with respect, regret to differ with the learned Single Judges who decided the cases of Abdur Rashid and Amir Hussain and would like to follow the law laid down in the authorities relied upon by the learned counsel for the respondents while deciding the present case.
10. As already indicated, in the case in hand, the ejectment proceedings against the appellant were still pending with the learned Rent Controller when the notice period of 3 months had expired. Thus, the cause of action in favour of the respondents' predecessor-in-interest had matured before the ejectment of the appellant was ordered by the learned Rent Controller. It is not the case of the appellant that he ever complied with the demand notice by paying or tendering the rent demanded from him. No legitimate exception can, therefore, be taken to the order of ejectment made against him.
11, The respondent's predecessor-in-interest demanded rent at the rate of Rs, 75 p.m. On the basis of the assessm ent made by the Municipality concerned. Learned counsel for the appellant did not dispute the fact that the property in dispute had been assessed as aforesaid but contended that the respondents' predecessor-in-interest could demand rent at the aforesaid rate for the period following the service of the notice under section 30 of the said Act and not for the period preceding its service. The old rate of rent was Rs, 15 p.m. Which according to him, was deposited by the appellant all through. While dealing with this plea, learned counsel for the respondents conceded that the respondents could not demand rent at the rate of Rs, 75 p.m. For the period preceding the service of notice but urged that since the appellant did not pay or tender rent at the rate of Rs, 75 p.m. Even after the service of notice he could not escape the finding of default. As indicated earlier, after the service of notice, the respondents' predecessor-in-interest waited for a favour able response from the appellant for about two months but as the appellant did not pay rent at the rate demanded by him, that is, Rs, 75 p.m. He felt constrained to seek his ejectment. Admittedly, the appellant was bound to pay at the rate of Rs, 75 p.m. After the service of notice but he did not pay rent for the said period of two months or for any future period at that rate. There is, thus, nothing wrong with the order of ejectment passed against him on the ground of default.
12. Lastly, it was submitted by the learned counsel for the appellant that in view of the circumstances of this case even if there was default on the part of the appellant the learned Rent Controller should have, in exercise of the discretion vesting in him, declined to order the eviction of the appellant. I am conscious of the fact that it was discretionary with the learned Rent Controller to order his ejectment even if the default had been established but he exercised the discretion against him. The appellate authority also followed suit. I really do not find anything substantial for taking exception to the exercise of discretion by the said two authorities against the appellant. I am, therefore, not inclined to act differently.
13. The result of the foregoing discussion is that there is no merit in this appeal. It is, therefore, dismissed with no order as to costs. The appellant is, however, allowed four months' time to vacate the premises in dispute. PLD 1967 Pesh. 256 1975 Law Notes Lah. 33) PLD 1964 SC 1061 2 3