' GHAZANFAR ALI GONDAL, J.-This judgment will dispose of two writ petitions 1. e. Writ Petition No, 416 or 1983 (R. W. P.) filed by Emmanuel Masih and Writ Petition No, 417 of 1983 (R. W. P.) filed by Tariq Francis.
2. The facts of the case are that Emmanuel Masih was a candidate fora non-Muslim seat in Municipal Committee Chakwal, Tehsil Gujar- Khan,- District Jhelum. He filed his nomination paper for the election to the said scat which was to be held on 5-10-1983. Tariq Francis also filed his nomination paper for the said non-Muslim seat from the same constituency. At the time of scrutiny on 6-9-1983, . Tariq Francis filed an application before Returning Officer raising an objection that Emmanuel Masih was not of the age of 25 years and was not qualified to contest the election. The application was dismissed and objection was rejected by the Returning Officer by his order of the same date and nomination paper of Emmanual Masih was accepted on the ground that Emmanual Masih was registered as a voter during the year 1979 and his age as described in the electoral roll as on 1-1-1979 was shown to be 21 years and his date of birth as recorded on the identity card was 1957 and that the (returning officer) could not enquire into the validity or correctness of any entry in the electoral roll under rule 15(3) (iii) of the Punjab Local Councils (Election) Rules, 1979, and as such his age on the last day of filing nomination paper was above 25 years and relevant entry of Emmanual Masih in the birth register maintained by Municipal Committee Chakwal, produced before him showing his date of birth as 20-12-1958, was doubtful.
3. Aggrieved by the said order of the Returning Officer dated 6-9-1983, Tariq Francis filed an application under section 17(1) of Punjab Local Government Ordinance, 1979 on 10-9-1983. The Punjab Local Councils Election Authority by its order dated 24-9-193, accepted this petition, set aside the order dated 6-9-1983 of the Returning Officer and rejected the nomination paper of Emmanual Masih and directed the deletion of his name from the list of contesting candidates. This order was made on the basis of the entry in the original birth register of Municipal Committee Chakwal which was produced before the Election Authority showing the date of birth of Emmanual Masih as 20th of December 1958, as reported to it (the said Municipal Committee) on 3-1-1959 by Rakha Masih, the very father of Emmanual Masih. The Election Authority held that the birth register did not contain anything which cast any doubt as to the correc'ness of the said entry made therein and taking into account 20-12-1958 the date of birth of Emmanual Masih as recorded in the said register, Emmanual Masih was less than the age of 25 years on the last day for filing nomination paper viz. 1-9-1983 and that the Returning Officer was not right in relying upon the date of birth of Emmanual Masih as given in the identity card for determining his age for the purpose of scrutiny of nomination paper which only gave the year of the birth and not the date and had erred in law and in violation of section 20 of the Ordinance in accepting the nomination paper of Emmanual Masih on its basis.
4. Emmanual Masih has come up in Writ Petition (416/83) to challenge the said order of the Election Authority, inter alia, on the ground that the said Authority had no jurisdiction under section 17(1) of the said Ordinance to look into the qualification for eligibility to contest the election on the ground that this matter is within the exclusive jurisdiction of the Election Tribunal.
As against that, Tariq Francis has filed Writ Petition No, 417/83, on the ground that assuming that the order of the Election Authority was without jurisdiction, the order of the Returning Officer accepting the nomination paper of Emmanual Masih was illegal, on the reasons recorded by the Punjab Local Councils Election Authority in its order dated .24-9-1983.
5. We have heard the learned counsel for the parties in both the writ petitions and have also seen the record of the case.
6. Learned counsel for Emmanual Masih has drawn our attention to section 20 of the said Ordinance, which lays down that a person shall be qualified to be elected as a member of an electoral unit of the local council if he has attained the age of 25 years on the last day fixed for the filing of nomination paper and to rule 13 of Punjab Local Councils (Election Petitions) Rules, 1979, which lays down that an Election Tribunal shall declare took place in October, 1974. IL this affidavit no mention is made about Haji Ghaffar and whether he could receive notice on behalf of Sialkot Ice Factory or not ? It would be pertinent to mention here that this affidavit was filed on 24-2-1980, much after full deposition of landlord was recorded by the Rent Controller including cross- examination on 11-10-1979. Even then acceptance of notice by Haji Ghaffar on behalf of Sialkot Ice Factory has not been adverted to. So far postal receipt Exhs. 5/E and 5/F are concerned they relate to the service of second notice dated 21-2-1972. Exh. 5/F is signed by Muhammad Yasin, who was son of Abdul Lateef and brother of witness Fazal Ahrnad. Muhammad Yasin died during the proceedings before the Rent Controller. Yasin had initially filed written statement before the Rent Controller on behalf of original tenant Abdul Lateef, while he was alive, as attorney of Abdul Lateef.
This written statement was filed on 23-11-1972. The learned Rent. Controller compared the signature of Muhammad Yasin on the written statement with the signature of Muhammad Yasin on A. D.
Receipt. Exh. 5/F and came to the conclusion that both the signatures are made by the same person. I have also done the same and agree with the learned Rent Controller. There is no denial of the fact from the tenants that written statement was not signed by Muhammad Yasin. In the circumstances no fault could be found with the finding of the learned Rent Controller on this point.
6. There is still another aspect to this point of service of notice, which is to the effect that apart from this question whether notices were served or not, another fact is indisputable that the original tenant had known about this fact that the property in question was purchased by the landlord. As per the case of tenants, landlord was doubtful about his title and he filed a suit in the civil Court for declaration. In that suit Abdul Lateef was also a defendant and had contested the proceedings.
This fact is categorically admitted in the written statement filed on behalf of tenants. The suit was filed on 13-6-1972 whereas ejectment application was filed subsequently on 2nd October,.
1972. , In the circumstances the tenants had the knowledge about the suit and the claim of the landlord that he was the owner of property in question. This fact with regard to the filing of declaratory suit by the landlord is categorically mentioned in the written statement filed on behalf of (opponents 2 to 10) before the Rent Controller and further reiterated in great detail in the affidavit of Fazal Ahmed. On this point the Supreme Court of Pakistan has held in the case of Khudabukhsh v. Muhammad Yakoob (1) that if the knowledge of the transfer is admitted by the tenant, then if a notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance,'
1959 has not been served, it would not stand in the way of the Court in granting the relief. In the circumstances and for the reason aforementioned I have held that the tenants had the knowledge about the purchase of the property in question by the landlord and the notices were also served upon them.
7. An argument was raised by Mr. Khalilur Rehman that the learned Rent Controller was not competent to review his own order. It is further stated that initially the learned Rent Contoller had given finding in negative with regard to preliminary Issue No, 3 which is to the effect whether notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinanre, 1959 was served or not?.
Subsequently on application filed on behalf of the landlord, the learned Rent Controller after hearing both the parties reviewed his Order and gave positive finding with regard to the service of notice under section 13-A of the said Ordinance on the ground that notice
(1) 1981 SCM R 179 under section 30 of the D. P. Act Exh. 5-D already contained the ingredients of notice under section 13-A of the said Ordinance-as-the fact with regard to the purchase of property in question and demand of rent by the landlord were specifically mentioned herein. It was further held by the Rent Controller that since the finding on issue with regard to service of notice under section 30 of D. P.
Act positive, hence the finding on issue with regard to service of notice under section 13-A of the said Ordinance also had to be positive. In the circumstances this technical mistake was rectified by order dated 31-7-1979. In this context, Mr. Khalilur Rehman argued that the learned Rent Controller was not competent to review his own order. On the other hand Mr. Suleman Kasim, Advocate argued that the Rent Contoller was competent to review his order and placed reliance upon the decision in the case of N. Q. Industries v. Bapai Kaikhusr (1) in which it is held that the Rent Controller, is competent to recall, review, rescind, vary, cancel, alter or amend his order under the provisions of West Pakistan Urban read with section 20 of West Pakistan General Clauses Act, 1956.
Mr. Suleman Kassim; Advocate has further relied upon the decision in the case of Muhammad Hanif v. Muhammad Ramzan (2) wherein it is held that if there is a mistake on the part of the Court the party may not be allowed to suffer from such mistake. On these premises it is argued by learned counsel for the landlord that it was a simple case of mistake which was rectified by the learned Rent Controller after hearing both the parts and the learned Rent Controller was quite competent to do so. Argument of Mr. Sulleman Kassim, Advocate has substantial force and I feel inclined to agree with him.
8. Mr. Sulleman Kassim, Advocate for the landlord has submitted that landlord had filed ejectment case against another tenant namely Sikandar Khan of the same building in question in which ejectment was granted and the said tenant filed appeal which was dismissed and he filed IInd Appeal in the High Court, which was also dimissed vide Judgment, which is reported as a case of Sikandar Khan v. Muhammad Amin (3). It is further stated that almost the same points which have been urged in this appeal before me on behalf or the tenants, were urged in that reported case but did not find favour with the learned single Judge who dismissed the appeal. I have gone through this elaborate judgment in the reported case. This judgment is very much helpful to the arguments of Mr. Suleman Kassim, Advocate. Even otherwise, I have discussed the arguments of both the learned counsel appearing before me in this appeal on their own merits.
9. The learned counsel for the landlord has submitted that he has filed cross objections on the li ited ground that the learned Rent Controller should not have fixed the rate of rent at Rs, 150 P. m. when the landlord had claimed the rent at the rate highe than Rs, 150 p. m. In fact quantum of rent was Issue No,
1. Before the learned Rent Controller and he has given cogent reason for arriving at the conclusion that the rate of rent should be Rs, 151 p.m. On the assessment for the year 1963.68 which indicates assessm ent of the premises as Rs, 1800 per year. As against that the learned Rent Controller has not accepted assessment showing the gross annual rental property in the year 1972 which comes to Rs, 398 p.m. For the reason that the same was obtained after the ejectment case was filed. I do not feel inclined to disagree with the finding of the learned Rent Controller on this point. I would also like to point out that Muhammad Amin landlord in his evidence before the learned Rent Controller has stated in unequivocal terms that he was prepared
(1) P L 13 1968 Kar. 589 (2) PLD 1983 Kar. 126
(3) PLD 1979 Kar. 59 to forego the arrears of rent if the Court directed ejectment on preliminary issues. In view of such statement of the landlord there does not appear to be any justification for filing cross objections on the question of rate of rent. In any case apart from this fact mentioned above the learned Rent Controller on this point has given reasons which do not call for any interference.
10. For the facts and reasons stated above the appeal as well as cross objections are hereby dismissed with no order as to costs. Tenants are directed to hand over the vacant possession of the premises in dispute within three months from the date of this judgment.