' This regular second appeal has been filed by Syed Mukhtar Ali and another. They alongwith respondent No, 3, Sounja G. Menjou, were defendants in a suit brought by the first two respondents, namely, Lt.-Col. Ghulam Rasul Chaudhry and another, for possession of certain property, and the recovery of its mesne profits. The disputed premises are in Islamabad. It was alleged by the plaintiffs (respondents Nos, 1 and 2) that they had let out their property in question to the appellants but they had, in violation of the terms of the lease, sublet a part of it in favour of respondent No,
3. The plaintiffs, therefore, served a notice on the defendants terminating their tenancy but despite that the defendants had not vacated the premises. The plaintiffs therefore, prayed for possession of the said premises and also demanded mesne profits for their use and occupation. The suit was resisted by the defendants on various grounds which gave rise to the following issues :-
(1) Whether the suit is not maintainable in its present form ? O.P.D.
(2) Whether the Court has no jurisdiction to try the suit ? O.P.D.
(3) Whether the plaintiff has no cause of action ? O.P.D.
(4) Whether the notice was prerequisite for the institution of the suit, if so, with what effect ? O.P.D.
(5) Whether the plaintiffs are the owners of the property in dispute ? O.P.P.
(6) Whether the defendants have sublet the property in dispute in favour of defendant No, 3 without the permission of the plaintiff ? O.P.P.
(7) Whether term of the tenancy has expired ? O.P.P.
(8) Whether the plaintiffs are entitled to recover the mesne profits, if so, with what effect ? O.P.P.
(9) Relief.
' The Civil Judge, who heard the suit, decided all the issues in favour of the plaintiffs and decreed the suit. Thereupon, the appellants, who were defendants Nos, 1 and 2 in the suit, went in appeal before an Additional District Judge but without success. They have, therefore, come up in second appeal to this Court.
2. Learned counsel for the appellants contended that the learned civil Judge had no jurisdiction to hear and decide the suit inasmuch as it was only a Rent Controller who could, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance order ejectment of the appellants from the premises in question. He maintained that Islamabad was an urban area of the Province of the Punjab and, therefore, the Ordinance was applicable to the disputed property.
3. I am unable to agree the learned counsel for the appellants. The preamble of the Ordinance as well as subsection (2) of section (1) thereof would show that the Ordinance applies to the urban areas of the Province of the Punjab. According to Article 4 of the Province of West Pakistan (Dissolution) Order, 1970, read with the Schedule attached to the said Order, Islamabad Capital Territory is not included in the Province of the Punjab inasmuch as it is a Federal area which does not form part of any Province. This is also evident from Article 1 of the Constitution. This being the legal position the mere fact that the Islamabad Capital Territory is surrounded by areas constituting the Province of the Punjab would not make the said Territory a part of this Province.
This result, therefore, is that Islamabad not being an urban area of this Province, the provisions of the Ordinance are not attracted to the property in this view of the matter, the learned Civil Judge had the jurisdiction to take cognizance of the suit giving rise to the present appeal.
4. Another point raised by the learned counsel was that even if the Ordinance was not applicable to Islamabad, the Transfer of Property Act, 1882, hereinafter referred to as the Act, was applicable thereto. He maintained that no valid notice under section 106 of the Act was served by the plaintiffs before the filing of the suit and, therefore, the suit could not succeed. He pointed out that in view of the provisions of Article 19 of the Province of West Pakistan (Dissolution) Order, 1970, section 1 of the Act required adaptation for the purpose of substituting the word "Federal Territory of Karachi" by the words "Islamabad Capital Territory" and even if such an adaptation had not, in fact, been made as yet, the word "Federal Territory of Karachi" occurring in section 1 of the Act would be read as the words "Islamabad Capital Territory" by virtue of the provisions of Article 19 of the said Order.
5. The concurrent finding recorded by the two Courts below is that the Act is not applicable to Islamabad, and that before filing the suit the plaintiffs had served the appellant/defendants with a notice terminating their tenancy and that even if such a notice had not been served, the institution of the suit amounted to notice in this behalf and, therefore, the suit could not be thrown out for the non-service of notice.
6. According to section 1 of the Act, the areas not forming part of any Province to which the Act could be extended, by means of a notification, was the Federal Territory of Karachi. Section 1 has not so far been amended or adapted so as to substitute the words "Islamabad Capital Territory" for the words "Federal Territory of Karachi". It was, therefore, observed by me in my judgment delivered in Barkatullah Khan v. Abdul Hamid (1) that no notification can be issued to make the Act applicable to Islamabad. Even if, on the strength of Article 19 of the Province of West Pakistan (Dissolution) Order, the words "Federal Territory of Karachi" are read as the words "Islamabad Capital Territory" the requisite notification by the Province of the Punjab extending the Act to the Islamabad Capital Territory is not forthcoming. Therefore, the provisions of Article 19 of the said Order are also of little help to the appellants. Resultantly, I agree with the two Courts below that the Act is not applicable to Islamabad.
7. As the Act does not apply to the, disputed property, strict obserVance of provisions of section 106 of the Act could not be insisted upon in the case of that property but the principles of section 106 could be invoked by the appellants. The requirements of those principles were, however, satisfied by the respondents inasmuch as, according to the concurrent finding of the two Courts below, the plaintiffs had served the defendants with notices of the termination of their tenancy. The said finding of the lower Courts was not questioned before me. Even if those notices had not been served, the institution of the suit amounted to notice of termination of their tenancy and, therefore, the first two respondents (landlords) could not be non-suited for the non-service of notice. Similar view was taken by this Court in Karam Chand v. Amar Nath Mohsan (1), which was approved of by the erstwhile High Court of West Pakistan in Maulvi Faiz Bakhsh v. Syed Shadi Shah (2). The plea of want of notice is, therefore, of no avail to the appellants.
8. There is no merit in this appeal. It is, therefore, dismissed in limine.
9. During the course of arguments, learned counsel for the appellants prayed that in the event of the dismissal of the appeal in limine, six months' time may be allowed to the appellants to vacate the disputed premises. The first respondent, Lt.-Col. (Retd.) Ghulam Rasool Chaudhary and Mr. C. A.
Rehman, Advocate for the first two respondents, who were present in Court in connection with C. M.
No, 2414/C of 1980, made in the instant appeal, submitted that they had no objection if four months' time was allowed to the appellants to move out of the premises in question. They, however, desired that the appellants may be directed to deposit rent for the said period of four months. On this, learned counsel for the appellants disclosed that the appellants were already depositing rent under the orders of the learned Additional District Judge, I, therefore, direct that the appellants shall not be evicted from the disputed premises for a period of four months from today. During this period, they shall continue to deposit rent as directed by the learned Additional District Judge.
(1) AIR 1933 Lah. 377 (2) PLD 1956 Lah. 261