1. ZAFFAR HUSSAIN MIRZA, J -These two petitions for special leave to appeal arise out of a common judgment, dated 23-9-1981, by a learned Single Judge of the Sind High Court, whereby the Appeals filed by the petitioners, under section 15 of the Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) were dismissed. This order will, therefore, dispose of both these petitions.
2. The dispute in these petitions relates to property Bearing No. P-II/151 and 152, Ward `A' situated in Pir Jo Goth, Taluka and District Khairpur, comprising two tenements. The property was admittedly transferred to the respondent, by the Settlement Authorities on 20-3-1973. It is common ground that on 24-3-1972, the respondent sent notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to each of the petitioners, intimating to them the fact of transfer of the property to him and demanding payment of rent. Since despite notice the petitioners failed to pay or tender the rent for the tenements in their respective occupa--tion for the period after the transfer, the respondent filed ejectment proceedings against them on 23-7- 1973. In their written statement filed in these proceedings, both petitioners denied the receipt of notice under section 30 and raised a plea that no relationship of landlord and tenant exists between the parties. This question was then taken up as a preliminary issue and after hearing the evidence of the parties, the learned Rent Controller by his order, dated 30-11-1974, held that there existed relationship of landlord and tenant between them. Accordingly, the Rent Controller passed the tentative rent order in both cases on 29-1-1975, directing the petitioner Taroomal to deposit rent at the rate of Rs. 15 per month, whereas petitioner Kodomal was directed to deposit rent at the rate of Rs. 20, per month. After recording further evidence of the parties on the issues framed on merits, the learned Rent Controller passed an order of ejectment against Taroomal on 1-4-1978 and against Kodomal on 9-3-1980. Taroomal challenged the order of the Controller before the Second Additional District Judge, Khairpur, in appeal, which was dismissed and from the said order his legal representatives came up in Second Appeal before the High Court, he having died in the meantime. From the order of ejectment passed by the Controller against Kodomal, also an appeal was brought directly before the High Court in view of the change in law. Both appeals have been dismissed by a learned Single Judge of the High Court by the impugned judgment as already stated.
3. In support of the petitions for special leave to appeal, it is firstly urged by the learned counsel for the petitioners that the ejectment proceedings filed against the petitioners were incompetent and entertained without jurisdiction by the Rent Controller, as no notice required under subsection (3) clause (i) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was served on the petitioners before institution of the proceedings. It may be stated that section 30 of the said Act provides protection to the statutory tenants in occupation of evacuee properties, which are transferred under the Settlement Law and it is inter alia, provided that such tenants will not be ejected from the property for a period of six years to be computed from the date a notice by the transferee is served on the tenant. Subsection (3) then provides as under: - "(3) Nothing in proviso (b) to subsection (1) shall apply to a tenant: -
(i) who has not within 3 months from the date of receipt of a notice of demand sent to him by the transferee by Registered Post (acknowledg--ment due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer; or
(ii) --------------------------------------------- It was argued by the learned counsel that the protection provided by section 30 against eviction of a statutory tenant, ceases to operate in his favour only in case he has committed default in the payment of rent for three months after the date of transfer and a notice for such default has been sent to him. This contention of the learned counsel was based on the reason that a demand for payment of rent cannot be made until the amount of rent becomes due. It was strenuously argued that a demand for payment cannot be made for an amount which was not yet due and payable in law. Alternatively, the counsel urged that in any case the three months' grace period allowed by law should be computed from the date when the arrears of rent first fell due and if the period is so computed on the date of institution of the ejectment proceedings, the three months' period had not yet expired.
4. After having considered the submissions of the learned counsel, we find no substance in them.
5. From the plain reading of the provisions of sub--section (3)(i) of section 30 of the Displaced Persons (Compensation do Rehabilitation) Act, 1958, it appears to us to be permissible to a transferee to serve a notice of demand upon the tenant for payment of rent which has not yet accrued due and in case the tenant commits default in the payment of rent, by not paying or tendering the same within three months from the date of receipt of such notice, the protection provided by section 30 comes to an end. In the present case, it has been proved that notice under section 30 was served on the petitioners on 23-4-1973 and the petitioners admitted failed to tender any rent until the expiry of the three months' period on 22-7-1973, after which the ejectment proceedings were filed. There is, therefore, no legal infirmity in the service of statutory notice or the entertain--ment of proceedings by the Rent Controller. The fact remains that the petitioners never tendered any rent to the respondent at any stage.
6. Learned counsel next urged that none of the Courts below went into the question as to the quantum of the arrears of rent due and payable by the petitioners. As will be observed, the plea of the petitioners was of denial of the relationship of landlord and tenant between the parties. They had, therefore, admittedly not tendered rent to the respondent. Whether the quantum of rent actually due and payable by the petitioners was determined or not, does not in any way materially affect the order of ejectment. The High Court rightly repelled the contention of, the petitioners that in his notice the respondent had demanded excessive rent, for it is well-settled by now, that a tenant is under a statutory obligation to tender rent at the rate prescribed by law and cannot be absolved of his liability to tender rent merely because rent in excess of the legal chargeable rent has been demanded.
7. Finally, counsel sought to urge that in the circumstances of this case discretion may be exercised in favour of the petitioners even if they had committed default in the payment of rent. However, this question was not, raised before any of the Courts below and even otherwise, since the petitioner had unsuccessfully raised the plea of non-service of notice, which has been proved to have been refused by them, they are not entitled to the exercise of discretion in their favour.
8. For the foregoing reasons, there is no merit in these petitions, which are accordingly dismissed. The petitioners are, however, allowed four month's period to surrender possession to the respondent, subject to regular payment of rent.