1. WAHEEDUDDIN AHMAD, J.--This appeal by special leave is directed against the judgment of the High Court of West Pakistan, Lahore, in S. A. O. No, 34 of 1966, dated the 9th June 19j7. By this judgment, a learned Single Judge of the High Court partly accepted the appeal of the respondent.
2. The dispute between the parties is in respect of a plot of land bearing No, 4333, situated in Sabzi Maudi, Gujrat. This plot was taken on lease by the respondent from Mst. Hakam for a period of 10 years, ending 6th February 1953. It was, later on, allotted by the Rehabilitation Commissioner (General), to the appellant and one Aildur Rauf, jointly. The Rehabilitation authorities directed the respondent to pay a sum of its. 40 p.m. in lieu of his share in the allotment. After the Settlement operation, the house in dispute was put to auction and it was purchased by the appellant Malik Ghulam Hussain in public auction, P. T. 0. was issued to him on the 22nd November 1960. On the 9th January 1961, the appellant sent a registered acknowledgement due notice to the respondent informing him about the transfer of the plot in his favour and demanded from him the arrears of rent due at the rate of Rs, 120 p.m. from the date of P. T. O. The notice was returned as `refused'.
3. On the 21st January 1964, the appellant filed an ejectment application against the respondent before the Rent Controller Gujrat, under section 13 of the West Pakistan Urban Rent Restriction Act, 1959, amongst others, on the ground of non-payment of rent. The respondent resisted this application and claimed that the plot in dispute was attached to a Religious Trust and that the property was evacuee trust property, and the Rent Controller had no jurisdiction to entertain the application. The receipt and the validity of the notice was also denied. The Rent Controller framed the following issue:-- "Whether the respondent is not tenant of the appellant."
4. On the 12th June 1965, the Rent Controller held that there was relationship of landlord and tenant between the parties and that the appellant was the transferee of the plot in possession of the respondent. He further held that the statutory notice as required by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was sent to the respondent and must be deemed to have been duly served on him. By a separate order passed on the same date, he tentatively fixed Rs, 50 p. m. as rent of the plot in dispute and directed the respondent to deposit the arrears of rent from the 22nd November 1960 to the 31st May 1965, and to continue to deposit the future monthly rent before the 5th of each calendar month. The respondent challenged this order before the Additional District Judge, Gujrat, which was dismissed on the 22nd December 1965.
5. The learned Additional District Judge held that the tentative rent fixed at the rate of les. 50 p. m. cannot be considered to be in excess. The matter was then taken in Second Appeal to the High Court of West Pakistan, Lahore. A learned Single Judge of the High Court by judgment dated the 9th June 1967, came to the conclusion that the decision of the two authorities below in fixing the rent of Rs, 50 is altogether arbitrary and capricious and fixed Rs, 20 p . m. as the rent of the premises in dispute. The appellant has challenged this order in this appeal before us.
6. Special leave was granted in this case to consider the question whether in Second Appeal against an order of a Rent Controller made in a petition for ejectment of a tenant, the High Court has exercised the discretion in accordance with judicial principles in reducing the rent of the property in dispute to Rs, 20 p. m.
7. Mr. Fazle Hussain, learned counsel for the respondent has raised a preliminary objection that the appeal is incompetent because the appellant has not come to this Court after exhausting his remedy in the High Court. The learned counsel contended that the appellant should have first filed a Letters Patent Appeal and then come to this Court from the final judgment of the High Court. In support of his contention that in Second Appeal arising out of the judgment of the Rent Controller, a Letters Patent Appeal lies, reliance was placed on the decision of the High Court of West Pakistan in Aurangzeb v. Bakhshi Mahmud Ali and Abdul Hag v. Saif-ur-Rahman and others .
8. In the last mentioned case, it was held by a Division Bench of the High Court of West Pakistan, Lahore, that in matters arising out of Rent Controller's decisions, a Letters Patent Appeal could he tiled against the order of a Single Judge of the High Court after obtaining from him a certificate under clause 10 of the Letters Patent. This contention is not controverted by the learned counsel for the appellant. He also concedes that a Letters Patent Appeal lies from the judgment of a learned Single Judge and he submitted that the appellant had already filed an application for certificate under clause 10 of the Letters Patent. He, however, contended that an appeal against the order of a Single Judge was competent under Article 58 (3) of the defunct Constitution and since this Court has already granted special leave to the appellant, the appeal should not be thrown out on this ground.
9. The question, therefore, for consideration is whether an appeal lies to this Court from the order of a learned Single Judge without exhausting the remedy of a Letters Patent Appeal.
10. Mr. Fazle Hussain, learned counsel for the respondent has referred to the cases of Ahmad Din v. Mst.
11. Rasul Bibi , Province of West Pakistan and another v. Rahim Bakhsh and others and Muhammad All Khan and another v. Captain Mian Abdul Majid and another decided by this Court. It was held in the first mentioned case that a party was entitled to a condonation of delay for time taken in of aiming necessary certificate for filing a Letters Patent Appeal in the High Court. In the second case, direct petition for special leave to appeal was entertained by this Court on the ground that Letters Patent Appeal in the circumstances of that case would be a futile attempt as the decision of the Single Judge of the Court was based on a Division Bench decision. In the last mentioned case, it was held that where the remedy in form of a Letters Patent Appeal was available, the petition for1 2 3 4 5 special leave to appeal was premature and it was returned to the petitioner. Reference was also made to a decision of this Court in the case of Syed Masumul Hassan and another v. Sheikh Muhammad Omer . In that case, it was brought to the notice of the Court after it has announced grant of leave that a further appeal within the High Court was competent under the Letters Patent.
12. This Court maintained the order of granting leave with the following observation:-- "After hearing Mr. Ehsan-ul-Huq in support of the petition, we announced grant of leave. It was not brought to our notice at the time that the judgment in question being one delivered by a learned Single Judge of the High Court in second appeal, a further appeal within the High Court was competent, under the Letters Patent, if a certificate had been obtained from the learned Single Judge. The practice of this Court is to entertain petitions for special leave only against final judgments and orders of the High Court, that is such as are delivered or made in a case seeking the final remedy available in that Court. In view of the fact that counsel has been heard, and an order granting leave has been announced, we treat this as a special case, and proceed to state briefly the grounds for leave. But we wish to make it clear that the case is not to be regarded as a precedent."
13. Thus it will be noticed that though the practice of this Court is to entertain petitions for special leave only against the final judgments and orders of the High Court, this Court in some cases, has entertained petitions for special leave to appeal without asking the party to seek his remedy by way of Letters Patent Appeal. In my opinion, under Article 58 (3) of the defunct Constitution of Pakistan, an appeal lies to the Supreme Court from any judgment of a High Court if the Supreme Court grants leave to appeal. There is no bar to entertain a petition for special leave from the judgment of a Single Judge of the High Court in a case where a Letters Patent Appeal lies. This Court, however, has made it a practice that it will not entertain a petition for special leave to appeal in a case where the party has not sought the remedy of Letters Patent Appeal available in the High Court. Ordinarily, therefore, this Court should not have entertained petition for special leave to appeal. But since leave has been granted to the appellant and the appeal is pending before this Court for more than three years, I consider that it will not be in the interest of justice to dismiss this appeal merely on the ground that Letters Patent remedy is available to the appellant in the High Court. I would, therefore, hold that the appeal is quite competent and overrule the preliminary objection.
14. Coming to the merits of the case, the question for consi-deration is whether the learned Single Judge of the High Court was justified in the circumstances of the present case to reduce tentative rent fixed by the Rent Controller from Rs, 50 to Rs,
20. Admittedly, the property in dispute is evacuee property and it was transferred to the appellant under the provisions of Dis-placed Persons (Compensation and Rehabilitation) Act, 1958. In such cases, the transferee of the property is entitled to charge rent according to the principles laid down in section 30 of the said Act. The relevant portion of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, is reproduced below :- "30.--(1) Where any person is in possession of any evacuee house, or shop, or has been declared, on or before the twentieth day of December 1958, by a Custodian to have tenancy rights from a date prior to the fourteenth day of August 1947, in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then, notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of Rent or otherwise on which he held it immediately before transfer: Provided that :- (a)it shall be lawful for the transferee to charge a rent on the basis of the latest assessment6 carried out by the municipality or local authority, as the case may be, for other properties in the locality generally; and (b)it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years, and from the industrial concern, cinema house or printing press for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due).
(2) ......................................
(3) .....................................
(i) .....................................
(ii) ...................................
(4) ...................................
15. Under this provision of law, the person in possession of the property is to be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer. Proviso (a) of section 30 of the Act lays down that it shall be lawful for the transferee to charge rent on the basis of the latest assessment carried out by the municipality or local authority, as the case may be, for other properties in the locality generally. In the present case, the appellant has not produced before the Rent Controller the latest assessment of the property in dispute. Therefore, the Rent Controller could not fix the tentative rent on that basis. The appellant was only entitled to claim rent on the same terms and conditions as to payment of rent on which he held it immediately before the transfer. The evidence in the present case is that the respondent was paying Rs, 20 p. m. to the Rehabilitation authority and Rs, 40 p. m. to Abdur Rauf in lieu of his share in the allotment as ordered by the Rehabilitation Commissioner in 1954 vide Exh. R.
3. This fact is admitted by the appellant in Exh. P. 8, an application which was made to the Deputy Settlement Commissioner, Gujrat on the 20th October 1960. Thus it is quite clear that the respondent was occupying the property in dispute on payment of Rs, 20 p. m. as rent to the Rehabilitation Department and Rs, 40 p. m. to Abdur Rauf in pursuance of the order of Rehabi litation Commissioner dated the 5th May 1954. According to the provisions of section 30, therefore, he was liable to pay rent to the appellant on the same terms and conditions on which he was occupying the property immediately before transfer. In my opinion, the learned Single Judge of the High Court fell into an error when he observed that the consideration which prevailed with the learned Additional District Judge was altogether irrelevant. The learned District Judge has taken into consideration Rs, 40 p.m. which was paid by the respondent to one Abdur Rauf. In this connection he observed as under :- "The learned counsel for the respondent has drawn my attention to Exh. P. 8, which shows that the present appellant had been asked to pay Rs, 40 per mense m to one Abdur Rauf his co-allottee by the order of the Rehabilitation Com-missioner in 1964. In the circumstances, the rent of Rs, 50 per mensem cannot be considered to be in excess."
16. In my opinion, the reasoning of the learned Additional District Judge was in accordance with law and could not be considered as irrelevant consideration. As already stated, under section 30 of the Displaced Persons Act, a person in possession of an evacuee property shall be deemed to be a tenant of the transferee on the same terms and conditions as payment of rent or otherwise on which he held it immediately before the transfer. The evidence in this case shows that the respondent was paying Rs, 20 p. to the Rehabilitation Department and Rs, 40 p. m. to Abdur Rauf, his co-allottee. In all he was paying Rs, 60 p. m. In this background, it cannot be said that the Rent Controller by fixing the tentative rent at Rs, 50 has acted arbitrarily or capriciously. In my opinion, he has fixed the tentative rent in accordance with law and no exception can be taken to it. I would, therefore, set aside the order of the High Court and restore the order of the Rent Controller. The result is that the tentative rent fixed by the Rent Controller at Rs, 50 is restored.
17. The learned counsel for the appellant pointed out at the time of argument that the defence of the respondent was struck off on the 21st February 1966. In my opinion, this order of the Rent Controller is bad because an appeal filed by the respondent before the Additional District Judge and the High Court the proceedings were stayed. The order of striking off the defence, therefore, will be of no effect. I would direct the learned Rent Controller to make a fresh order for the deposit of the arrears of rent at the rate of Rs, 50 p. m. as required by section 13, subsection (6) of the West Pakistan Rent Control Ordinance, 1959.
18. Before parting with this case, it may be mentioned that the respondent also took an objection that the learned Rent Controller could not order him to pay rent to the appellant which is barred by time. No such objection was raised before the High Court and, therefore, this point cannot be allowed to be raised for the first time in this appeal.
19. In the result, the appeal is allowed with costs throughout. The case will be sent back to the Rent Controller immediately for taking further proceedings in the matter pending before him in accordance with law.
20. M. R. KHAN, J.--I agree.
21. SALAHUDDIN AHMED, J. --I agree. PLD 1961 Lab. 619 PLD 1968 Lab. 478 1968 SCMR 843 1968 SCMR 1328 1969 SCMR 112 PLD 1965 SC 466