' This appeal arrises out of an ejectment application filed by the respondent, Charagh Din, against the appellant, Kaley Khan. In the application for the ejectment of the appellant, it was asserted that the respondent was transferee of the property in dispute having been issued its P. T. D. On 8-1-1973.
Exh. P-2. It was further stated that a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had been sent to the appellant on 5-8-1975. The application for ejectment was filed on 4-12-1975 on the ground that the respondent was a defaulter in the payment of rent.
2. In defence, the appellant denied the existence of relationship of landlord and tenant and further asserted, that he was a Jammu and Kashmir refugee and was an allottee of the house in dispute and was in occupation of the premises in his own right and so no rent was due.
3. It appears that on 1-3-1976, a direction was issued to the appellant to deposit arrears of rent amounting to Rs, 1,556 prior to 15-5-1976 and to deposit future rent also before the 15th of each month. The appellant however, filed an appeal against the direction which was dismissed by the Appellate Court by order dated 2-7-1976, and the parties were directed to appear before the learned Rent Controller on 7-7-1976. It appears that they did so and on 29-7-1976, the Rent Controller framed an issue with regard to the existence of relationship of landlord and tenant between the parties. This issue was decided in favour of the respondent by order dated 17-7-1977.
Subsequently on 18-12-1977 when the Court noticed that its order for deposit of arrears made on 1- 3-1976 had not been carried out, it struck off the defence of the appellant and directed his ejectment.
4. The appellant filed an appeal against the ejectment order which was heard and rejected by order of the learned District Judge, Sialkot dated 13-3-1978 on the ground that the appellant had failed to carry out the order of deposit of rent made under section 13 (6) of the Rent Restriction Ordinance, 1959.
5. Case has been called out. No one appears for the respondent and the appeal is being heard ex parte.
6. Learned counsel for the appellant has contended that an order for the deposit of arrears of rent could not have been made prior to the determination of the issue as to whether the appellant was the tenant of the respondent and in this context relied on the case of Mst. Khurshid Begum v. Haji Muhammad Hadi (1). Learned counsel for the appellant also contended that notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had not been found to have been issued. It was contended that the order of deposit of arrears was made on 1-3-1976 wherear the issue of the existence of relationship of landlord and tenant between the parties was found in favour of the respondent on 28-7-1976.
7. It is by now well established that after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a notice under section 30 of the aforesaid Act is no longer necessary. The application for ejectment was filed on 4-12-1975 much after the repeal which took place on 1-7- 1974. In this context, reference may be made to the judgments in the
(1) PLD 1979 Quetta 39 ' cases of Mst. Remat Bibi v. Mst. Maryyam Akhtar (1), Ghutam Qadir v. Nazir Ghulam Ahmad (2) and Amina Begum v. Mehr Ghulam Dasigir (3). Notice therefore was not necessary nor was the proof of the same required.
8. In so far as the other point is concerned, it has already been seen that direction for deposit of arrears by 15-5-1976 was made but no penal action was taken against the appellant for non- compliance with the direction. It may be not here that it is noted always necessary that the learned Rent Controller should frame an issue on the existence of relationship of landlord and tenant before making an order under subsection (6) of section 13 of the Rent Restriction Ordinance, 1959.
In this context, reference may be made to the judgments in the cases of Q. Qureshi v. Sardar Ranjhey Khan Farooq (4) and Muhamma Sharif v. Sh. Muhammad Amin (5), where it was held that the Rent Controller is not always and in each case bound to frame an issue on relationship of landlord and tenant and to decide it in a formal manner after formally affording an opportunity to the parties to adduce evidence and where prima facie the plea is frivolous, mala fide or raised to prolong the proceedings, the Rent Controller is empowered to overrule the same by an order indicating applicating of mind, though in certain cases where involved questions of law and fact are raised, the Rent Controller may have to record evidence. In the present case though it is correct that the Rent Controller did not advert to this aspect of the matter before making an order for the deposit of arrears, yet no penal action was taken on the basis of failure to comply with this order, till after the determination of the issue of the existence of relationship of landlord and tenant in favour of the respondent. In other words' though the order to deposit arrears preceded the finding on the issue of relationship, yet the non-compliance with the order of deposit of arrears was not visited with a penalty till after an affirmative finding with regard to the existence of relationship of landlord and tenant in favour of the respondent/ landlord. As such the error if any, did not in any manner materially prejudice the appellant.
9. Another aspect of the matter which merits attention is the fact that as already noted, in his written statement, the appellant had denied the existence of relationship of landlord and tenant between him and the respondent and had further stated that he was the owner of the property and as such rental was not due. In other words, he denied not only the title of the respondent as landlord but also admitted the fact that he had not paid any rent. It was thereafter that a finding was given by the Court in favour of the respondent, and to the effect that he was the landlord and that the appellant was his tenant, In such circumstances, the Rent Controller could have directed forthwith the ejectment of the tenant. In this context reference D may be made to the judgment in Aman Ullah Khan v. Chhotey Khan (6), Khadlm Husain v. Mst. Farooqa Gul (7) Sikandarr Khan v.
Muhammad Amin (8) Muhammad Siddique v. Naseer Ahmad (9) and Nisar Ahmad v. Nazar Muhammad (10). As observed by the Supreme Court where the petitioner does not acknowledge the respondent as his landlord and is admittedly a defaulter
(1) 1980 CLC 883
(2) PLD 1980 B.J 15
(3) PLD 1981 Lab. 694
(4) 1980 CLC 1457
(5) PLD 1977 Lab. 516
(6) 1978 SC MR 14
(7) 1981 CLC 15
(8) PLD 1979 Kar. 59 (9)PLD 1976 Lat. 1078
(10) PLD 1974 Lab. 489 ' in the payment of rent, no useful purpose is to by served be remanding the case to the lower Court and the ejectment of the tenant can be ordered forthwith without any further inquiry.
10. Learned counsel for the appellant could not urge anything meriting intervention of this Court against the findings of the Courts below to the effect that the respondent was the landlord of the appellant/ tenant. Learned counsel did, however, urge that the title of the respondent was sub judice before various forums including a will petition before this Court which was disposed of in 1976, but this was much before the relevant order of the Rent Controller.
11. For the reasons afore-noted, there is no force in this appeal which is rejected.