1. This judgment will dispose of two Second Appeals No. 111 of 1977 and 112 of 1977, in which the parties are same and almost identical facts and same questions of law are involved.
2. The respondent is the landlord of a property bearing C.S. No. 1584/A-4/1 which comprises two .Portions bearing numbers I and
2. The respondent had rented out both the tenements to one Mohammad Iqbal, the then Headmaster of a private school, which was run under the name of Primary Crescent School on monthly rental of Rs.
60. After the nationalisation of the schools, under the provisions of MLR 118 of 1972, the premises in question came to be occupied by the present appellant where a school styled as Dawn Primary School was being run.
3. The appellant paid rent @ Rs. 30 p.m. To the respondent upto February. 1974, in respect of tenement No. 1 and up to June, 1973, in respect of tenement No. 2. The respondent filed two Rent Applications in the Court of the Rent Controller, Mirpur Khas, seeking eviction of the appellant, alleged default in payment of rent as well as on the ground of bona fide requirement for personal use. The appellant filed written statement wherein fact regarding non-payment of rent for the periods mentioned in the applications was admitted but it was said that the same could not be paid because the respondent had failed to furnish Advance Receipts of payment as required by the Government Treasury. It was categorically asserted that the appellant had never refused payment of rent and there was no wilful default committed in the matter. The allegation with regard to bona fide requirement of the premises was disputed on the ground that the respondent was residing in quite a suitable residence. An additional plea, however, was raised that the application, itself, was not maintainable under MLR 118 and West Pakistan Dele--gation of Powers Order and Financial Rules.
4. No plea regarding non-existence of relationship of landlord and tenant was raised in the written statement which apparently could not be so raised because of admission regarding payment of rent and denial of the allegation of default in payment thereof. Consequently the Rent Controller passed a tentative rent order on 19th August, 1975. The appellant deposited Rs. 780 and Rs. 540 respec--tively in both the cases on 9th September, 1975, in compliance with the order of the Rent Controller. However, the appellant committed default in making deposit of rent and the respondent on 19th January, 1976 made applications under section 13 (6) of the Ordinance for striking of the defence. The appellant filed objections to the said applications on 27th April, 1976 and offered explanation for non-payment of rent which was said to be unintentional and was asked to be condoned. The Rent Controller, by a well considered order dated 30th April, 1976, held, that the appellant had committed default and appellant's defence was struck of. The appellant was directed to put the respondent in possession of . The premises within a month. These orders were challenged by the appellant before the learned District Judge by two separate appeals which were dismissed on 18th January, 1977.
5. These appeals have now been filed challenging the orders of the learned District Judge. As these appeals were filed belatedly on 7th April, 1977, after delay of 42 days, an application under section 5 of the Limitation Act was also filed seeking condonation of delay. The appeals were admitted to regular hearing on 6th May. 1977, leaving the question of limitation open for consideration at the time of regular hearing.
6. The respondent has filed counter-affidavits in both the appeals alongwith applications under section 15 (2) of the .Ordinance stating that the appellant committed defaults by not depositing rent for April, 1977 and May, 1977 before the .15th May, 1977 and 15th June, 1977, respectively, which was deposited on 28th May, 1977 and 15th June, 1977 respectively. No counter-affidavit to the said application was filed by the appellant.
7. The allegation with regard to further defaults committed by the appellant as aforesaid also stands confirmed by certified copies of state--ments regarding deposit of rent issued by the Rent Controller.
8. Both the Courts below as per their elaborate and well-reasoned order have given concurrent findings of fact with regard to defaults committed by the appellant and it was not contended before me that such defaults were not in fact, committed nor any cogent explanation was offered on behalf of the appellant. The case of the respondent regarding further defaults committed by the appellant also stands confirmed as aforesaid. In this view of the matter the correctness of the findings of the Courts below cannot be questioned on this issue.
9. Mr. Safdar Hussain Fani, learned counsel for the appellant, however, contended that the Rent Applications, itself were not maintainable before the Rent Controller and the impugned orders, therefore, are nullity in the eye of law. It was asserted that the property in question vested in the Government as per Notification of the Education Depart--ment bearing No. DD (P & E) 1 (8)/72, dated 30th September, 1972, which reads as under :-
(ii) All funds such as Provident Funds, students funds, Bank Account and other cash balances vesting in the management of the Private Schools as shown in Annexures I and II shall stand transfer--red to and shall be operated by Government or its nominees on and from 1st October, 1972."
10. The above contention of the learned counsel is without any substance. All that the Notification lays down, is that rights, properties and assets of an owner or manager of a privately-managed school shown in the annexures thereto, shall be the rights properties and assets of and shall vest in the Government of Sind. The name of the crescent Middle School appears at S. No. 13 in annexure 1 to the Notification. Admittedly, the property in question stood rented out by the respondent to one Mohammad Iqbal, former Headmaster of the School, and the same did not belong to him.
11. Consequently, after nationalisation, it was school and its management that vested in the Government and it cannot be said that the building of the school which belongs to the respondent No. 1 also stood, acquired and vested in the Government.
12. The learned counsel placing reliance on the abovementioned Notification further contended that the said notification exempted to disputed .Property from the operation of the rent laws within the meaning of section 3 of the Ordinance. This contention is also without any substance because by no amount of ingenuous interpretation of the notification in question which was issued under M L R 118, can be treated as one issued under section 3 of the Ordinance. The appellant admittedly paid rent up to June, 1973 and February, 1974 in respect of the two disputed tenements as mentioned above and in the written statement a feeble explana--tion was offered and willingness to pay rent was also shown, although half-hearted attempt was made to seek shelter behind the provisions of M L R 118, which apparently were not attracted. The appellant also deposited rent in the first instance after the passing of the tentative rent order and continued to deposit the same upto July, 1977, although not paying the same in time. In the end the learned counsel also contended that there was no relationship of landlord and tenant between the parties because the schools belonged to the Government of Sind. This plea was not taken before the Courts below nor it was available to the appellant on the plain reading of the definition of the term 'tenant' in the Ren Ordinance.
13. The learned Counsel for the respondent contended that the appeals were also liable to be dismissed as the same were hopelessly time-barred.
14. It was not necessary to discuss this point since the appeals are being disposed of on merits.
15. However, this objection of the learned counsel for the respondent must also prevail. There is no satisfactory explanation given in the affidavit filed in support of the applications under section 5 of the Limitation Act. The learned counsel for the appellant relied upon a judgment of this Court in case of Messrs Muqtada Khan Iqtida Khan v. Mst. Allah Rakhi Begum (PLD 1973 Kar. 471) in which relevant observation appears in paragraph 12 of the report at p. 478. This judgment is distinguishable on facts because in that case the advocate, who had prefer--red the second appeal, had stated that he was mistaken when he thought that the period of limitation for a second appeal was 90 days. Reliance was placed on subsection (4) of section 15 of the Urban Rent Restriction Ordinance, 1959. However, since then much water had flown down the Indus and even junior advocates have come to know as to what is the period of limitation prescribed for filing of appeals under section 15 of the Ordinance.
16. For the foregoing reasons these appeals have no merits and are, therefore, dismissed with costs.