This writ petition is directed against an order of a Rent Controller whereby he had required the petitioner, Hakim Muhammad Yaqub Ali, under subsection (6) of section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, to deposit some arrears of rent in respect of certain premises occupied by him as a tenant. The impugned order was made by the learned Rent Controller on an appli--cation made by respondent No. 1, Muhammad Fayyaz, hereinafter referred to as the respondent, seeking ejectment of the petitioner on the ground that he had committed default in the payment of rent.
2. In the ejectment application it was alleged by the respondent that the premises in dispute were originally owned by his grandmother, Mst. Taj Bibi, who had rented out the same to the petitioner.
According to the respondent, on the death of Mst. Taj Bibi the premises in question were inherited by him and thereafter the petitioner paid him rent for some time but he had failed to pay any rent after December, 1978.
3. In his reply to the ejectment application it was urged by the petitioner that he had taken the disputed premises on rent from Mst. Hussan Ara and not from Mst. Taj Bibi and that he had been regularly paying rent to Mst. Hussan Ara. Another plea raised by the petitioner was that no notice under section 13-A of the said Ordinance was served on him prior to the launching of ejectment proceedings.
4. Before making the order under challenge, the learned Rent Controller recorded better statement of the petitioner in which he had admitted that he was a tenant of Mst. Taj Bibi as alleged by the respondent. It was also conceded by him that on the death of Mst. Taj Bibi her legal heirs, including the respondent and his mother, Mst. Hussan Ara, became landlords qua the premises in dispute.
According to the petitioner, he had been paying rent to the respondent's mother for the last five or six years. In view of this statement of the petitioner, it was observed by the learned Rent Controller that relationship of landlord and tenant between the parties had been established and, therefore, he directed the petitioner to deposit the arrears of rent.
5. It was contended by learned counsel for the petitioner that sin notice under section 13-A of the said Ordinance was not served on th petitioner before the filing of the ejectment application, the said application was not competent and the learned Rent Controller had no jurisdiction to pass order relating to deposit of rent. He cited Mst. Raziu Butt v. Ghulam Raza (1) and Sajid Ali v. Mst.
Abida Begum and another (2) to support his plea.
6. The precedent cases of Mst. Razia Butt and Sajid Ali are distinguishable on facts inasmuch as in those cases the relationship of landlord and tenant had not been established but in the instant case, as indicated above, it was conceded by the petitioner, while making his better statement, that the respon--dent was one of the landlords of the disputed property. The said two authorities are, therefore, of little help to the petitioner.
(1) PLD 1979 Quetta 157(2) 1980 CLC 312
7. Being conscious of the aforesaid admission of the petitioner that relationship of landlord and tenant did exist between the parties, the learned counsel attempted to show that despite that admission the respondent could not seek his ejectment without serving him with notice under sec- -tion 13-A of the said Ordinance. According to him, the case reported as Sh. Muhammad Husain v.
Mst. Mubina Begum and another (1) was an authority for the proposition put forth by him. In that case the tenant had deposited rent in the landlord's name and the landlord had withdrawn the same but in spite of that it was held that service of notice under section 13-A was necessary. While expressing that view a learned Single Judge of the Sind High Court had relied on E. A. Evan's case
(2) and had dissented from the view taken by this Court in Nazar Hussain v. Adam Shah (3).
8. In the E. A. Evans' case it was held by the Supreme Court that in the case of a statutory tenancy created by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the protection of notice given to the tenant could not be lawfully contracted out by him.
9. In the case of Nazar Hussain, decided by this Court, it was, however, held that the analogy of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act cannot be applied to a case under section 13-A of the said Ordinance. Relevant observations made in that case read as under :-- .
"Similarly the analogy of section 30 is not applicable to a case under section 13-A of the West Pakistan Urban Rent Restriction Ordinance. The principle of section 13-A is only this that normally a person should be presumed to know the landlord who has initiated him in the property. If, however, there is a transfer or the property goes by inheritance to another person after the death of the landlord, he should be presumed not to know about such devolution or transfer unless he is served with a notice under section 13-A and if such a person does not pay the rent to the transferee landlord or to the heir of the deceased, he cannot be said to be in default. Section 30, on the other hand, provides that the normal procedure under the West Pakistan Urban Rent Restriction Ordinance or under the Transfer of Property Act shall come into force only if a notice in accordance with the provision of subsection (1) of that section is served upon the person and possession and a default is committed by him in the payment of the rent within 90 days of such service. The analogy of that section cannot, therefore, be applied to a case under section 13-A.
(5) As stated above, section 13-A only visualises a presumption which cannot be said to be conclusive in any respect. At the most it is a rebuttable presumption. If in a given case the tenant is proved to know about the death, acknowledges the heir or the transeferee as the landlord and starts paying rent to him, a fresh tenancy will be deemed to have been created in favour of the person who has received the property by devolution or transfer.
(6) If the matter is looked from this point of view, it will be clear that the appellant had become a tenant of the respondent since it was admitted in A. W. 1/1 that Channan Din had died and after his death the appellant had started paying rent to Aslam Shah respondent. His only grievance was that Aslam Shah bad no right to enhance the rent from a sum of Rs. 10 to Rs.
50. The word `tenant' has been defined in the Urban Rent Restriction Ordinance as meaning a person by whom or on whose account rent is payable for a building. The word `landlord' is defined as a person for the time being entitled to receive rent. Once there is an acknowledgement of the appellant being a tenant under Aslam Shah by paying rent to him, he cannot turn back and rely upon section 13-A in case of deliberate default made by him in the payment of the rent. If the contrary is held to be true that would result in an anamolous situation. That will be giving more protection to the tenant than was, in fact, envisaged by the Legislature, The unreported case relied upon is no doubt of this category but the points that I have taken into consideration, have not been taken into consideration in that case. In these circumstances I am in agreement with the learned Additional District Judge that the question of notice under sec--tion 13-A did not arise. In fact by his own conduct the appellant has caused the respondent to believe that he acknowledged him as his landlord notwithstanding the non-service of a notice under sec--tion 13-A and it is no longer necessary to serve any notice upon the appellant. The principle of estoppel will thus apply against the appellant."
(1) 1979 CLC 42(2) PLD 1964 SC 536
10. I have lot of respect for the learned Single Judge of the Sind high Court who had decided the case of Sh. Muhammad Husain, but for the reason given in the case of Nazar Husain I regret my inability to share the view taken by him and respectfully following the dictum in the case of Nazar Husain I hold that since the petitioner had conceded that the respon--dent was one of his landlords, the learned Rent Controller had the jurisdiction to proceed with the trial of the ejectment application even though notice under section 13-A had not been served before the making of that application.
11. It is also to be noted that the order under review is of provisional nature and does no immediate harm to the petitioner. If this order ultimately results in an ejectment order due to the non-deposit of rent by the petitioner the order of ejectment would be open to appeal. Thus, in the event of a real threat of ejectment an adequate remedy would be open to the petitioner. There is therefore, hardly any occasion for him to invoke the extraordinary jurisdiction of this Court at the present stage.
Similar view was expressed in Rashid Ahmed v. Soofi Muhammad Saleem and another PLD 1976 Lah 1450,
12. For the reasons given above, this writ petition fails. It is dismissed in limine.