' On 21st September, 1973 the respondent filed a petition under section 13 of the Rent Restriction Ordinance for the eviction of the appellant from a garage along with inter-floor which is in occupation of the appellant. The property to which this garage and the inter-floor is attached is admittedly an evacuee property. The respondent served the appellant with a notice dated 5th June, 1973 under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act which is Annex. A/3. It was stated in the notice that on the transfer of the property in favour of the respondent, vide P. T.
0. No, 441262, dated 5th October, 1960 the appellant had become a statutory tenant and vas liable to pay the monthly rent to the respondent @ Rs, 30 and was required to clear the arrears within three months of the receipt of the notice and also to pay the future rent at the same rate. The reply to this notice is Exh. A/4 in which the appellant accepted his position as a statutory tenant.
2. The eviction application filed by the respondent proceeded on the ground of damage and personal need. This petition was resisted by the appellant who claimed protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act and asserted that no damage had been caused to the property. The learned Rent Controller Rawalpindi accepted the application vide his order dated 9th October, 1974 only on the ground of personal need. The appellant filed an appeal which was dismissed by the learned Additional District Judge, Rawalpindi vide his order dated 15th February, 1975.
3. The learned counsel for the respondent has submitted that the learned Additional District Judge has erred in law in holding that the appellant was not entitled to protection under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act. It is further submitted that the judgments cited by the learned Additional District Judge related to the transfer of the property and did not exclude the protection to an occupant of a garage particularly when the respondent himself had served a notice dicer section 30 of the Act on the appellant.
4. The contention raised by the appellant is not without force. All Ole utilities relied upon by the learned Additional District Judge related to the transfer of the property. It was in this connection that the learned Supreme Court had observed that an occupant of a garage or outhouse was not entitled to the transfer of the same as an independent unit. A reference to the judgment relied upon by the learned Additional District Judge would not be out of place. In Abdul Hamid Khan v.
Settlement & Rehabilitation Commissioner etc. (1) their Lordships of the Supreme Court have observed as under :- "The application of the instructions and the Press note were on their face conditioned by the "house" being in occupation of more than one person. In construing the definition of a "house" in section 2 (4) of the Displaced Persons (Compensation and Rehabilitation) Act this Court has held that a person in possession of an outhouse or a garage cannot for the purpose of the transfer of the house or a portion thereof be considered to be in its occupation for the reason that the outhouses and garages are appurtenances to a house, but a house cannot be an appurtenance to an outhouse or a garage. Mst. Fazalunnisa Begum v. The Chief Settlement Commissioner (Civil Petition for Special Leave to Appeal No, K-34, decided on the 24th March, 1966). In this view the Settlement authorities and the High Court had rightly rejected the appellant's claim for transfer of the outhouses and a portion of the compound of the bungalow on the ground that he was not in occupation of the bungalow,"
5. Similarly the judgment reported as Shaukat Ali Khan v. Settlement Commissioner etc. (2) related to the transfer of the property in occupation of an outhouse and was held not to be entitled to the transfer of the same as a house. In this judgment the aforesaid judgment of the Supreme Court, viz. Abdul Hamid Khan v. Settlement d Rehabilitation Commissioner etc. Was relied.
6. To the same strain is the judgment of the Supreme Court reported as Ayoob v. Masjid-e-Noman (3).
7. The learned counsel for the respondent argued that the appellant was not entitled to protection under section 30 of the Act (Act XXVIII of 1958) for the reason that the property in question did not fall in the definition of the term 'house' as given in the aforesaid Act. He relied on the provisions of section 30 for the purpose of creating the statutory tenancy but was not prepared to extend the protection to the appellant. This contention of the respondent cannot be accepted for obvious reasons. As already pointed out in the notice the respondent had already stated that on the transfer of the property the appellant had become a statutory tenant. In case the garage does not fall in the definition of the term `house' and no statutory tenancy could be created ; under section 30, a Rent Controller has no jurisdiction to proceed with the matter. The argument is obviously fallacious. A person in occupation of a house or a portion thereof is entitled to protection under section 30.
8. It was next argued by the learned counsel for the respondent that as the period of six years had expired during the pendency of this appeal, the cause of action be declared to have matured and the plea
(1) '11 13 1966 SC 719
(2) 1972 SCMR 124
(3) 1973 SCMR 604 ' of the appellant rejected on that ground. This contention of the respondent has also no legal force.
In case the statutory period of six years had expired during the pendency of the petition for eviction, I could see some force in the argument. In the present case the notice is dated 5th June, 1973 and six years' period would expire in 1979 i. e. During the pendency of the present appeal. For this proposition the learned counsel for the respondent relied on Abdullah Bhai v. Ahmad Din (1).
This authority does not help the respondent as in this case the cause of action had matured during the pendency of the suit. In this case the eviction proceedings have been started without a certificate under section 10 of the Karachi Rent Restriction Act. This case was a case where cause of action matured during pendency of appeal. However the period specified in the licence expired during the pendency of the suit. In this connection their Lordships of the Supreme Court observed as under :- "An argument had been addressed to us that the suit was premature and should have been dismissed on that ground. The suit had been filed on 17th January, 1958 that is long before 31st December, 1959 on which date the period of the licence was to terminate. The trial Court had dismissed the suit. The Additional District Judge on appeal had decreed it on a date when the period of the licence had expired and the appellants had a right to possession. 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. We would not be prepared at this stage to dismiss the suit on this technical ground and to direct the appellants to file a fresh suit. It is also urged that even in respect of a licence there should be a notice of its termination. We are unable to entertain this plea for two reasons. In the first place even the filing of a suit was sufficient termination of a licence and in the second place this plea had not been raised by the respondent though the suit was based on a licence:"
[Underlining* is mine]
9. The learned counsel also relied upon another judgment of the Supreme Court Mst. Amina Begum v. Mehar Ghulam Dastgir (2). In this case also the cause of action had matured during the pendency of the suit and not during the appeal. In this case the statutory period of protection under section 30 of Act XXVIII of 1958 elapsed during the pendency of the ejectment petition. It was held that in case the proceedings were allowed to commence after 11 years of litigation the result on merits was not legally to be different and ejectment was upheld by the learned Supreme Court.
The relevant observations of their Lordships may be quoted below :- "Now reverting to the facts in the instant case before us, to start with the ejectment application was filed by the respondent against the petitioners on the grounds that they had committed default in the payment of rent, had impaired the value and utility of the premises and also because he wanted to reconstruct the shop in question. On these allegations, therefore, this application as laid was competent and could be enquired into. During the pendency
(1) PLD 1964 SC 106
(2) PLD 1978 SC 220 *[Here in italics) ' of the application even the statutory period of protection against the ejectment of the petitioners under proviso .(b) to subsection (1) of section 30 had also elapsed and the High Court in exercise of the discretion vested in it found that the shop in dispute was old and dilapidated one. Actually on a complaint the condition of the structure had been declared as dangerous and in that connection Municipal Committee had also launched proceedings against the landlord and the tenants. In the opinion of the High Court there was overwhelming evidence available on the record to arrive at the finding that the landlord reasonably required the premises in good faith for reconstruction and that there was no justification for interference with the concurrent finding of fact recorded by the authorities below in that behalf. In this connection the Court further observed that the ejectment application was filed in the year 1966 and was eventually decided by the Rent Controller after, six long years in the year 1972. If the case were to commence afresh after the 11 years of this litigation by the 28th of February 1977 when the impugned order was passed by the High Court, the result on account of the accepted position on the merits of this issue would not be any different."
10. The learned counsel for the respondent also relied on a judgment Messrs M. Wahab-ud-Din & Sons v. The Controller of Rents etc. (1) for the proposition that in case the statutory period had expired during the pendency of the appeal, the petition could not be treated as premature. In this case one Mst. Hanifa was issued a P. T. 0 in respect of the shop where after she served notice on the occupant under section 30 of the Act before the expiry of the statutory period in question. After her death, the name of her son was substituted in the P. T.
0. Who again served a notice dated 19th May, 1965. The eviction application was filed under section 17 of Cantonments Rent Restriction Act and one of the grounds was hone fide personal need. The tenant claimed protection under section 30 and objected that the petition was premature. On 28th October, 1965 the eviction application was dismissed holding that the tenant was entitled to protection. On appeal the learned Additional District Judge remanded the case after framing certain additional issues. After the case was received by the Controller he recorded evidence of the parties and thereafter submitted his findings to the learned District Judge and ultimately the petition was allowed vide his order dated 13th May, 1968. The paragraph 15 on which the reliance has been made may be quoted with advantage.
"15. Be that as it may, the admitted position now is that the petitioner has already remained in possession of the disputed shop for more than six years and has also occupied his own shop premises. This development, which has taken place during the pendency of the proceedings, can be taken due notice of by this Court, and consequently it would be wholly unjust to dismiss the eviction application at this stage on a technical ground that when it was filed the period of six years had not expired. For this conclusion, we might with advantage reproduce from page 113 of the judgment of the Supreme Court of Pakistan in the case of Abdullah Bhai etc. v. Ahmad Din PLD 1964 SC 106.
11. It would be evident from the above quotation that the reliance was placed on Abdullah Bhai v.
Ahmad Din, which has been referred to above. In that case the cause of action had accrued during the pendency of the suit. The Peshawar case has not examined the facts of the case of the Supreme Court case and as such cannot be treated to be judgment laying down a proposition that even if the cause of action matures during the pendency of the second appeal the original petition cannot be treated as premature. This would be against the basic principle of law that in an appeal only those matters can be taken into consideration in respect of which a cause has arisen during the pendency of the suit. The learned counsel for the respondent could not cite any judgment of the Hon'ble Supreme Court other than Abdullah Bhai's case in which a cause of action maturing in the second appeal was treated to be sufficient to declare that the original proceedings were not premature.
12. In view of the above discussion I accept this appeal ; the order of the learned Additional District Judge, Rawalpindi, dated 15th February, 1975 and that of the learned Rent Controller, Rawalpindi dated 9th October, 1974 are set aside holding that the statutory period having expired during this appeal the respondent was entitled to file a fresh petition. The learned counsel for the respondent has submitted that direction may be given that in case the respondent files a fresh petition for eviction the same shall be expeditiously disposed of. The request seems to be reasonable in view of the fact that the requirement of personal need has already been established and it is only for technical reasons that the appeal has been accepted, the Rent Controller taking cognizance of the fresh petition shall dispose of the matter expeditiously and in the light of the observations of this Court.
13. In the circumstances of the case there will be no order as to costs.