' This second appeal is directed against the order passed by IVth Extra Joint Civil Judge and Rent Controller, Hyderabad, dated 11-1-1978 and the order passed in Appeal No, 32 of 1979 by the learned District Judge, Hyderabad on 24-3-1979.
2. The appellant was directed to be evicted from premises No, 751/156, Ward-B, Hyderabad on the ground of default in the payment of rent of July, 1976 and on the ground of reconstruction. This appeal was admitted on 18-8-1979 only on the point of default while on the point of reconstruction the appellant's counsel had admitted that the ejectment on the ground of reconstruction was rightly granted but the point of protection of being put back into possession of the premises in question after reconstruction had been kept open. The finding on default by the Rent Controller is based on the agreement of 1967 which provided that the rent had to be paid in advance. The rent Controller came to the conclusion that the rent of July, 1976 was not paid in advance and, therefore, default had been committed. He took into consideration the two money orders Exh. 29, dated 16-9-1976 and Exh. 30, dated 7-10-1976 but he took the view that since the rent was payable in advance, therefore, submission of money orders in September and October, 1976 did not save the default.
3. The learned District Judge took into consideration the said money orders but he took the view that since no person has been produced as witness from the Postal Authorities to prove that the money orders were properly addressed to the respondent and they were tendered to the respondent and that the respondent refused to accept the same. Therefore, it could not be held that the appellant had tendered the rent due to the respondent.
4. I have no hesitation in coming to the conclusion that both the learned lower Courts have proceeded to decide the case on wrong approach. The Rent Controller relied upon an expired agreement which could not be relied upon. Reference is invited to PLD 1980 SC 298. The agreement of 1967 was a dead agreement and, therefore, the rent could be paid by the tenant within 60 days from the period for which the rent was payable under section 13 (2)(f) of the West Pakistan Urban Rent Restriction Ordinance, 1959. In this case rent of July, 1976 became due on 1st of August, and therefore, within 60 days from 1st August it could be paid by 29th September, 1970 but the money order was sent on 16-9-1976 and hence the same was tendered within proper time. The Rent Controller had assumed that the money orders had been sent but the learned District Judge has unnecessarily tried to find loop holes in the sending of money orders, The money orders have the seal of the post office of Cloth Market, Hyderabad and they show that on 16-9-1976 one money order was sent for Rs, 220 and the same is addressed to Ghulam Muhammad and merely because the name B of Ghulam Muhammad Ghulam Ahmed has not been shown in this Exh. 29 does not mean that it was not sent. In fact a presumption should have been drawn that the money order was sent. Exh. 30 has the mention of Ghulam Muhammad Ghulam Ahmed and it also bears the post office seal. In fact a presumption should have been drawn that the said money order had been duly sent. It is, therefore, apparent that the finding of default in the payment of rent of July 1976 was completely uncalled for and was not warranted by law. Consequently, the same is hereby set aside and the appeal of Rehmatullah is allowed.
5. This appeal was admitted on 18-8-1979 and the appellant handed over the possession of the premises to the respondent on 7-10-1979. He made an application in this Court on 28-5-1980 under section 13(5)(a) of the Ordinance for direction to the respondent to put the appellant in possession of the entire premises No, 751. Notice of the same was issued but the objections were filed by the respondent stating that he has leased out the premises on 22-5-1980 and 19-6-1980 to respondents Nos. 3 and 4 and that he had received respectively Rs, 25,000 and Rs, 12,000 from them as advance and the monthly rent was Rs, 725 and Rs, 450. The said Application No, 1813/80 is still undisposed of. The allegation of the respondnet is that the appellant had not made the application under section 13 (5)(b) of the Ordinance to the Rent Controller when the building was under construction and, therefore, the respondent has let out the same to Abdul Latif on 22-5-1980 and to Abdul Samad on 19-6-1980. The respondent has further stated that Rs, 25,000 were recovered by him from Abdul Latif and Rs, 12,000 from Abdul Qadir and Abdul Saeed.
6. Mr. Ismail Kassim, the learned counsel for respondents Nos. 3 and 4 had also taken the position that the appellant did not move application under section 13 (5)(b) of the Ordinance before the Rent Controller, and therefore, he cannot now ask for restoration of the possession.
7. I am of the view that because the appellant applied for restoration of possession on 28-5-1980 while the respondent Abdul Latif had been put into possession of the part of the premises on 22-5- 1980, therefore, Abdul Latif cannot be ordered to go away from the premises and to that extent the request for the restoration of possession made by the appellant is disallowed. However, since Abdul Qadir and Abdul Samad were put into possession of the premises by the respondent on 19- 6-1980 during the pendency of the application made by the appellant for restoration of possession, therefore, the application is to be allowed as against Abdul Qadir and Abdul Samad and hence the respondents Nos. 1, 2 and 4 are directed to put the appellant into possession of tha area of the shop which is in possession of Abdul Qadir and Abdu Samad subject to 'acceptance of rent of Rs, 450 and the payment of Rs, 12,000 by the appellant which should be deposited within two months. I may note here that mere mention of wrong section 13 (5)(a) instead of 13 (5)(o) does not disentitle the appellant from claiming the restoration of possession. Moreover, since the second appeal was pending in this Court from 1979 and the question of restoration of the possession had been kept open for consideration in this .second appeal by the learned Judge who had admitted the appeal on 18-8-1979, therefore, the appellant could have made an application for restoration of possession in this E very appeal and the pendency of the second appeal is a continuation proceedings initiated before the Rent Controller and this Court could pass such orders in appeal which could be passed by the Rent Controller.
8. Mr. Ismail Kassim, the learned counsel for respondents 3 and 4 has requested that sufficient time be granted to respondent No,4 to hand over the possession to the appellant. The r9quest is reasonable.
' I, therefore, grant Your months' time to the respondent No, 4 put the appellant in possession of the premises in the occupation of respondent