The respondent filed a petition under section 13 of the West Pakistan Urban Rent Restrictlon Ordinance against the appellant for his ejectment from shop No. 3/15/476, Shamali Bazar, Shahpur Saddar, District Sargodha. The petition for eviction proceeded on the ground of default in the payment of rent from 14th May, 1970 till the filing of the petition for eviction, i.e. 29th May, 1972. The other ground taken was the bona fide personal need. The appellant contested the application And clamed protection under section 30 of the Displaced Person (Compensations and Rehabilitation)
Act and also claimed service of notice under section 13 of the West Pakistan Urban Rent Restriction Ordinance as the respondent was said to have purchased the property on 14th . May, 1970. The learned Rent Controller, Jauharabad framed the following issues
(1) Whether a valid notice under section 30 of the Displaced Persons (Comtrs Act has been validly served ;on the respondent prior to the institution of the application ? OPA.
(2) Whether the relationship of landlord and tenants exists between the parties ? OPA.
(3) Whether any notice under section 13-A has been served on the respondent ? If not, with what effect on the application ? OPA.
(4) Whether the petition has locus standi to file this application ? OPA.
(5) Relief.
2. The learned Rent Controller decided all the issues in favour of the respondent and accepted the application and passed the order of eviction against the appellant on 12th May, 1973. The learned Additional District Judge, Sargodha vide his order dated 19th April, 1976 accepted the appeal and romanded the case. On remand the learned Rent Controller framed two more issues being Nos. 6 and 7 which are reproduced below
(6) Whether the respondent has failed to pay `.Or tender rent due by him to the applicant ? OPA.
(7) Whether the applicant requires the shop bona fide for personal uses ? OPA.
3. The learned Rent Controller vide his order dated 22th July, 1974 held that there was no default and accepted the application only on the ground of personal need. The appellant filed an appeal and findings on issue No. 7 were confirmed.
4. The learned counsel for the appellant has argued that according to the showing of the respondent the notice (Exh. A/5.) under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act is- said to have been served on 21ts August, 1970 and another notice dated 21st February, 1972 (Exh. A/3) was also served. It was further argued that the prescribed period of six years having not expired when the petition fox eviction had been filed the petition, as much, was premature. The learned counsel for the respondent, however submitted that since the period has expired during the pendency of the second appeal eviction could be ordered. In nut-shell the contention of the appellant is that the period prescribed under section 30 of the Act had not expired before filing of the petition nor during the pendency of the petition and therefore the petition was liable to be dismissed as premature. For this proposition the learned counsel for 'he respondent relied on Abdullah Bhai v. Ahmad Din (PLD 1964 SC 104). This authority does not help the case of the respondent as in this case the cause of action had matured during the pendency of the suit. In this case the eviction proceedings have been started without a certificate under section 10 of the Karachi Rent Restriction, Ordinance. However, the period specified in the licence expired during the pendency of the suit. In this con--nection their Lordships of the Supreme Court observed as under :-.
An argument had been addressed to us that the suit was premature and should have been dismissed on that ground. The suit had been filed on 17th January, 1958 that is long before 31st December, 1959 on which date the period of the licence was to terminate. The trial Court had dismissed the suit. The Additional District Judge on appeal Tad-decreed it on a date when the period of the licence had expired and the appellants had a right to possession. It was open to the appellate Court to have decreed a suit which was premature when it was filed but the cause of action respecting which had arisen during the pendency of the suit. We would not be prepared at this stage to dismiss the suit on this technical ground and to direct the appellants to file a fresh suit. It is also urged that even in respect of a licence there should be a notice of its termination. We are unable to entertain this plea for two reasons. In the first place even the filing of a suit was sufficient termination of a licence and in the second place this plea had not been raised by the respondent though the suit was based on a licence."
5. The learned counsel also relied upon another judgment of the Supreme Court reported as Mst.
Amina Begum v. Mehar Ghulam Dastgir (PLD 1978 SC 220). In this case also the cause of action had matured during the pendency of the suit and not during the appeal. In this case the statutory period of protection under section 30 of Act XXV11I of 1958 elapsed during the pendency of the ejectment petition. It was held that in case the proceedings were allowed to commence after 11 years of litigation the result on merits was not likely to be different and ejectment was upheld by the learned Supreme Court. The relevant observations of their Lordships may be quoted below "Now reverting to the facts in the instant case before us, to start with the ejectment application was filed by the respondent against the petitioners on the grounds that they had committed default in the payment of rent, had impaired the value and utility of the premises and also because he wanted to reconstruct the shop in question. On these allegations, therefore, this application as laid was com--petent and could be enquired into. During the pendency of the application even the statutory period of protection against the ejectment of the petitioners under proviso (b) to subsection (1) of section 30 had also elapsed and the High Court in exercise of the discretion vested in it found that the shop in dispute was old and dilapidated one. Actually on a complaint the condition of the structure had been declared as dangerous and in that connection Municipal Committee had also launched proceedings against the landlord, and the tenants. In the opinion of the High Court there was overwhelming evidence available on the record to arrive at the finding that the landlord reasonably required the premises in good faith for reconstruction and that there was no justification for interference with the concurrent findings of fact recorded by the authorties below in that behalf. In this connection the Court further observed that the ejectment application was filed in the year 1966 and was eventually decided by the Rent Controller -after six long years in the year 1972. If the case were to commence afresh after the I1 years of this litigation by the 28th of February, 1977 when the impugned order was passed by the High Court, the result on account of the accepted position on the merits of this issue would not be any different."
6. The learned counsel for the respondent also relied on a judgment reported as Mls. M. Wahab- ud-Din & Sons v. The Controller of Rents, etc. (1) for the proposition that in case the statutory period bad expired during the pendency of the appeal, the petition could not be treated as premature. In this case one Mst. Hanifa was issued a P. T. O. In respect of the shop whereafter she served notice on the occupant under section 30 of the Act before the expiry of the statutory period in question.
After her death, the name of her son was substituted in the P. T. O who again served a notice dated 19th May, 1968, The eviction application was filed under section 17 of Cantonments Rent Restriction Act and one of the grounds was bona fide personal need. The tenant claimed protection under section 30 and objected that the petition was premature. On 28th October, 1965 the eviction application was dismissed holding that the tenant was entitled to protection. On appeal the learned Additional District Judge remanded the case after framing certain additional issues. After the case was received by the Controller he recorded evidence of the parties and thereafter submitted his findings to the learned District Judge and ultimately the petition was allowed vide his order dated 13th May, 1968. The paragraph 15 on which the reliance was made may be quoted with advantage.
"15. Be that as it may, the admitted position now is that the Petitioner has already remained in possession of the disputed shop for more than six years and has also occupied his own shop premises. This development, which has taken place during the pendency of the proceedings, can be taken due notice of by this Court, and consequently it would be wholly unjust to dismiss the eviction application at this stage on a technical ground that when it was filed the period of six years had not expired For this conclusion, we might with advantage reproduce from page 113 of the judgment of the Supreme Court of Pakistan in the case of Abdullah Bhai etc. v. Ahmad Din PLD 1964 SC 106."
7. It would be evident from the above quotation that the reliance was placed on Abdullah Bhai v.
Ahmad Din (2) which has been referred to above. In that case the cause of action had accrued during the dendency of the suit. The Peshawar case has not examined the facts of the case of the Supreme Court case and as such cannot be treated to be judgment laying down a proposition that even if the cause of action matures during the pendency of the second appeal the original petition cannot be treated as premature. This would be against the basic principle of law that in an appeal only those matters can be taken into consideration in respect of A which a cause has arisen during the pendency of the suit. The learned counsel for the respondent could not any judgment of the Hon'ble Supreme Court other than Abdullah Bhai's case in which a cause of action maturing in the second appeal was treated to be sufficient to declare that the original proceedings were not prematre.
8. In view of the above discussions I accept this appeal, the order of the learned Additional District Judge Sargodha, dated 18th April, 1976 and that of the learned Rent Controller, Jauharabad dated 22th July, 1974 $ are set aside holding that the statutory period having expired during this appeal the respondent was entitled to file a fresh petition. The learned
(1) PLD 1971 Pesh. 256(2) PLD 1964 SC 106 counsel for the respondent has submitted that direction may be given that in case the respondent files a fresh petition for eviction the same shall be expeditiously disposed of. The request seems to be reasonable in view of the fact that the requirement of personal need has already been established and it is only for technical reasons that the appeal has been accepted, the Rent Controller taking cognizance of the fresh petition shall dispose of the matter expeditiously and in the light of the observations of this Court.
9. In the circumstances of the case there will be no order as to costs.