This is a I1nd appeal against the judgment dated 19-4-1979 passed by VII Additional District Judge, Karachi in Rent Appeal No. 425/77, reversing the judgment dated 12-10-1977 of the Civil Judge XV/Rent Controller IV, Karachi.
2. The brief facts of the case giving rise to this appeal are that the appellant and his mother Amtul Hussain, now deceased, have: been living in flat bearing No. 1, in building known as Bahmumal Abnormal, situated on Plot No. A. M. 76/1, Frere Road, Karachi which was transferred to the respondent by the Settlement Authorities and for which a 1;'. T. O. Dated 8-8-1959 was issued to her.
3. According to the appellant the notice dated 12-7-1960 (Exh. 9) under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was served on the deceased mother of the appellant who has head of the family and its postal acknowledgement (Exh. 10) was also produced. According to the respondent the deceased .Mother of the present appellant paid 3 months rent to the respondent but thereafter some dispute, arose between the respondent and one Abdul Shakoor to whom a P. T. O. Was also issued by the Settlement Department in respect of the same property with the result that the deceased mother of the appellant stopped paying any rent.
4. There was a long and protracted litigation between the respondent and the aforesaid Abdul Shakoor which ultimately culminated in favour of the respondent by the judgment dated 27-3-1973 of this High Court whereby the premises in question were held to be validly transferred by the Settlement Department to the respondent.
5. It may, however, be stated that during the pendency of that litigation the respondent had again sent a notice dated 20th of May 1965 through her Advocate to the said Amtul Hussain (Exh. 11) which was, according to the respondent, received by the said lady. After the High Court Judgment dated 27-3-1973, as aforesaid, was obtained by the respondent in her favour, she sent another notice dated 25-4-1974 (Exh. 12) through her Advocate which was duly served on the appellant. The respondent having neither received any reply to the said notice nor payment of rent from the appellant filed an ejectment case under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the first of July 1974. The learned Rent Controller by -"his order dated 12-10-1977 dismissed the ejectment application holding that the notice as required under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not served and even if notice dated 25-4-74 is held to be such a notice the proceedings were premature and as such the ejectment application filed by the respondent against the appellant was not maintainable.
6. The respondent being aggrieved by the said judgment filed an appeal in the Court of VII th Additional. District Judge, Karachi who reversed the finding of the learned Rent Controller and allowed the appeal. Now the appellant has challenged the said judgment dated 19-4-1979 in this appeal.
7. The learned counsel for the appellant has raised two-fold contentions: (i) that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was served and, alternatively, even if the 3rd notice dated 25-4-1974 is taken to be a notice under section 30 of the Act, the filing of application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on 1-7-1974 was premature ; (fl) his second contention was that the respondent having played fraud with the appellant, the respondent is not entitled to the relief claimed in her application for ejectment.
8. In order to substantiate his contentions the learned counsel for the appellant stressed the point that Exhs. 9 and 11 were not served as the lateAmtul Hussain : A copy of the notice, Exh 9, as well as acknowledgment Exh. 10, do not bear the correct address of late Amtul Hussain. Her signature on the acknowledgment has been specifically denied by her son-in-law on behalf of the appellant.
The second notice (Exh. 11) was also not proved inasmuch as / no acknowledgment of the said notice was produced in Court which was necessary in the face of denial of the receipt of that notice by the husband of the appellant. With regard to third notice dated 25-5-1974 the contention was that although the said notice was duly received . By the appel--lant, it was not a notice as contemplated under section 30 of the Displaced Persons (!Compensation and Rehabilitation) Act, 1958. He further contended if, in ~4ny case, the said notice is taken to be a notice under section 30 of the Displaced Persons Act the filing of application prior to the period of 90 days, as provided under section 30 itself, was premature and as such not maintain--able.
9. I agree with the contention of the learned counsel that the notices F,xhs. 9 and 11, in the face of denial of their receipt by the husband of the appellant and the legal objection taken by the learned counsel for the appel--lant at the time of Their production, have not been properly proved to have been served on the deceased Amtul Hussain. But I do not find myself in agreement with the contention of the learned counsel for the appellant that the third notice dated 25-4-1974 is not a notice as contemplated by section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958. As rightly argued by the learned counsel for the respondent, the last notice, Exh. 12, is to be taken as a notice 'under section 30 as it contains information of transfer as well as demand of rent. 1, therefore, held that the notice dated 25-0-1974, receipt of which has been admitted by the husband of the appellant in his deposition before the trial Court was duly served on the appellant and it was a notice as contemplated under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
10. Now the only question in relation to the said notice and filing of the proceedings prior to expiry of 90 days, remains to be decided for purposes of attracting the jurisdiction of the Controller under the Rent Restriction Ordinance. The learned counsel for the respondent submitted that if the first two notices are held inadmissible as not proved, and only the third notice is taken to be a notice under section 3,0 of the Displaced Persons (Com--pensation and Rehabilitation) Act, 1958 the application will undoubtedly premature. But the cause of action having matured during the proceedings o the case and looking to the facts and circumstances the discretion may b exercised in favour of the respondent. In support of his contention he relied on the cases of Umar Din and others v. Ch. Fazal Din (1), Supreme Court Authority in Raja Muhammad v. Muhammad Zareen (2) which also refers to its earlier decision, Mst. Amina Begum v. Mehr Ghulam Dastgir (3).
11. The Supreme Court Authority is binding on me which is clear on the point at issue. It is apparent that the application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, counting the period from the last notice dated 25th April 1974, was filed before the expiry of 3 months statutory period allowed to the tenants. But the Controller, not being a civil Court in stricto senso, was not precluded to take note of event taking place during the course of the proceedings after the filing of the ejectment application so as to meet the ends of justice and to avoid multiple city of proceedings. Looking to the facts of the present case, where the service of the two previous notices was not held good, as not properly proved according to the Evidence Act, 1872, on technical grounds. I am of the view that the discretion vested in the Controller must have been exercised in favour of the respondent in the interest of justice. The cause of action though trot mature at the time the application was filed, matured during the course of the proceedings, was a sufficient compliance of the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, particularly when ft would not make any difference, in the result, if the respondent is ordered to withdraw the ejectment application and refile the same on expiry of the period of 90 days. In view of the circumstances of the case that the appel--lant or her mother has neither paid or tendered any rent to the respondent c nor deposited the same in the Court of the Controller, even after the receipt of the notice dated 24-4-1974. I am inclined to exercise my discretion in favour of the respondent and hold that even if the application for ejectment was premature at the time it was filed, it matured during the proceedings and after this long period of 7 years litigation it will not be reasonable or justified by any rule of equity or justice to dismiss this application merely on a technical ground that it was not mature when it was filed.
(1) PLD 1978 Lab. 193 '(2) 1980 SCMR 339
(3) PL D 1978 Lah 220
12. In view of the above, I am of the view that ejectment should be ordered on the ground of default in payment of rent. The appellant, despite respondent's title over the property in question, deliberately denied her title and withheld payment of rent to her. In view of this clear admission of the appellant's husband in his deposition before the Rent Controller in 1977 that no rent has been paid to the respondent either by the appellant or by her deceased mother it will be futile to order further enquiry into the matter. D For this view, I am supported by a ruling of this Court in the case of Sikandar Khan v. Muhammad Rafiq (1) and a Supreme Court authority, which is binding on me, in the case of Amanullah Khan v. Chhote Khan (2).
13. Before parting with the case let me say a few words about the second contention of the learned counsel for the appellant that the respondent was not entitled to the relief claimed. At the very outset. I must say that I, was not at all impressed by this contention of the learned counsel for the appellant and he was quite unable to substantiate his contention with anything material from the facts on record. He, however, placed his reliance on the case of Abdul Ghaffar v. Muhammad Nazar A.I (3), wherein the discretion was not exercised in favour of the landlord as he was found to have levelled false allegation against the appellant about default in payment of rent and damage to the property. Here in this application there is an admitted position that no rent was at all paid by the appellant or her mother to the respondent and no such allegation can be attributed to the respondent that she played a fraud on the appellant.
14. As I am not impressed by the contention of the learned counsel for the appellant that the respondent had played a fraud on the appellant or her mother the discretion of the Court to pass an order in favour of the landlord E in an application which was initially premature and matured during it pendency is available to the Court and can be rightly exercised in favour o the respondent.
15. The upshot of the above discussion is that the appellant having deliberately denied the title of the respondent and having wilfully failed to pay or offer to pay or tender any rent to the respondent and enjoying the property without any payment of rent to any person whomsoever for nearly two decades, it will be quite in consonance with the principles of justice that the case be not remanded for further trial on the point of default. The appellant, under these circumstances, be ordered eviction without any further proceedings.
(1) PLD 1979 Kar. 59(2) 1978 SCMR 14
(3) PLD 1979 Lab. 317 16.. I, therefore, dismiss this appeal with costs and direct the appellant to hand over vacant possession of the premises to the respondent.