' The appellant has filed appeal against the order of IIIrd Rent Controller, Karachi dated 13th May, 1980, in Rent Case No, 442 of 1975 on application of the respondent under section 13 (6) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) striking off the defence of the appellant on his failure to deposit rent for the months of November, 1975, July, October and December, 1976 in breach of the tentative rent order, dated 4th September, 1975.
' The facts leading to the filing of the instant appeal are as under :
1. The respondent acquired ownership of the tenement in Building on Survey Sheet No, LR-8/45 by transfer from the Settlement Department On 12th August, 1961. The appellant was occupying the tenement and was given notice, dated 31st March, 1962 by Mr. I. H. M. Badsha, Advocate of the respondent informing him that the same had been transferred to the respondent by Deputy Settlement Commissioner, Karachi vide P.T.O. And requiring him to pay Rs, 33 per month as rent in accordance with the latest Municipal Assessment a copy of which was enclosed with the notice.
The notice further called upon him to pay the arrears of rent from 12th August, 1961 upto the date of the notice within 4 days of receipt thereof failing which legal action for recovery would be taken.
The notice was sent by registered post acknowledgment due. Reply dated 18th April, 1962 by appellant Yusuf, who was then member B. D. Dharamsiwara Union Committee No, 45, Karachi, was sent to Mr. Badsha, Advocate of the respondent with inter alia the objection that copies of P.T.O.
And K.M.C. Assessm ent had not been made available with the notice with letter, K.M.C., 16th April, 1962, the Advocate for the respondent sent a true copy of P.T.O. In respect of the premises which was admittedly received by the appellant by registered post who signed the postal acknowledgment receipt.
2. It is also apparent from certified copy of the judicial record of the Court of Senior Civil Judge and Rent Controller No, III, Karachi, that Rent Case No, 26 of 1963 filed by the respondent on 22nd April, 1963 against the appellant ended in compromise under which the appellant agreed to pay Rs, 15 per month as rent from 1st November, 1965. Earlier in his written statement in the case the appellant had taken the stand that according to K.M.C. Assessment for the year 1947-48 the rent was Rs, 7.50 per month and after transfer of ownership to the respondent the K.M.C. Obviously at his instance had assessed it at Rs, 33 per month.
3. On 10th February, 1975 the respondent filed application under section 13 of the Sind Rent Restriction Ordinance, 1957 against the appellant stating that the appellant was his tenant in respect of the premises at the agreed monthly rent of Rs,
15. The respondent was residing in tenements bearing Nos. 1 and 2 in the same building which consisted of 2 rooms ; with his wife, son, daughter-in-law and grand-daughter and the accommodation was insufficient for their needs. He, therefore, needed the premises in occupation of the appellant for his and his children's bona fide use. He, therefore, prayed for eviction of the appellant.
4. On 1st March, 1975 the appellant filed written statement admitting that the respondent had purchased seven tenements including the one in his occupation, from Settlement Department and that the respondent was living in one of the units on the ground floor. He however, took the plea that the respondent did not need the premises in his occupation but was demanding further enhancement of rent which had already been enhanced once to Rs, 15 per month. It was his contention that the accommodation with the respondent was sufficient for his and his family's needs.
5. On 4th September, 1975 the learned Controller passed the tentative rent order, which reads as under : "The Advocate for the opponent is present. The rate and period of rent is not disputed. As per rent account of applicant himself the rent is due from February, 1972. The opponent is, therefore, directed to deposit Rs, 105 as arrears of rent upto August, 1977 within a period of 15 days from this order. He is further directed to deposit the future rent in the Court before 15th of every calendar month."
6. On 23rd November, 1976 the respondent filed application under section 13 (6) of the Sind Urban Rent Restriction Ordinance, 1959 for striking off the defence of the appellant on the round that he had committed default in compliance of rent order, dated 4th September, 1975 whereby he was directed to deposit arrears of rent amounting to Rs, 105 within 15 days from the date of order and he was further directed to deposit the future monthly rent before the 15th of every calendar month.
The Nazir was directed to submit report which he did on 19th February, 1977. After perusal of the report of the Nazir and after hearing the counsel of the parties the learned Controller found that the appellant had failed to deposit future monthly rent within the statutory time on a number of occasions. He had failed to deposit rent for the months of November, 1975, July, 1976, October, 1976 and December, 1976 before the 15th of each succeeding month. There was no explanation whatsoever regarding the said default and it was held that the negligence amounted to wilful default in making compliance of the order for deposit of rent. The learned Controller, therefore, allowed the application and struck off the defence of the appellant and directed him to put the landlord in possession of the premises by his order, dated 31st May, 1977.
7. The appellant filed appeal against the aforesaid order of the Controller in the District Court, Karachi, which was incidentally heard by the IVth Additional District Judge, Karachi who set aside the order of the Controller, dated 30th September, 1977 and allowed the appeal and remanded the case to the learned Controller with the direction to frame issue with regard to service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is apparent from a perusal of the judgment of the learned IVth Additional District Judge, dated 6th August, 1978 that although the contention about non-receipt of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had not been raised in the previous Rent case or even in the written statement, in the instant case, and further the Rent Case No, 26 of 1963 was admittedly compromised by the parties without any such contention, the same was raised for the first time in the appeal although the relationship of landlord and tenant, as already stated had not even been denied in the written statement.
8. On receiving the case by remand the learned Controller settled the issue, whether the respondent had given the appellant notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and if not, what is the effect. He then recorded the evidence of the respondent/landlord who produced copy of the notice and also the acknowledgment receipt signed by the appellant. He also produced the reply sent by the appellant and the reply of his Advocate enclosing the copy of P.T.O. For satisfaction of the appellant. In his evidence, the appellant admitted his signature on the acknowledgement receipt and also the reply made by him raising objection and the correspondence ending with the letter sent by the Advocate sending copy of the P. T.
0. The learned Controller, therefore, had no hesitation in giving the finding that the notice under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been given by the respondent and had been served upon the appellant. It may here be observed that the certified copies of the application and the written statement filed by the respondent in Rent Case No, 26 of 1963, the application for compromise and the order allowing it, were also produced before the learned Controller. The aforesaid evidence also further proved that the relationship of landlord and tenant had, in fact, never been denied nor had it been suggested that no notice under section 30 aforesaid had been given.
9. After the finding on the preliminary issue the respondent moved an application under section 13
(6) of the Ordinance in continuation of his previous application, on 25th July, 1979 on which the impugned order, dated 13th May, 1980 was passed against which the instant appeal has been filed.
10. It has been contended by Mr. A. G. Siddiqui, the learned counsel for the appellant that the application under section 13(6) of the Ordinance had been totally misconcieved and should have been rejected as the tentative Rent Order, dated 4th September, 1975 was set aside by the order of the Additional District Judge, dated 6th August, 1978 and after the remand of the rent case, no fresh tentative Rent Order had been passed. Reliance has been placed on decision of High Court of Madhya Pradesh (reported in A.I.R. 1963 Madhya Pradesh 344) wherein it was inter alma observed that where the order of remand lays down any limit for the enquiry to be made by the lower Court, that. Court has no jurisdiction to enter into any question which falls outside the limits. The learned counsel further argued that order under section 13(6) of the Ordinance is in the nature of an interlocutory order which is merged in the final order. He further relied upon the decision in Roshan Din v. S. M. Badruddin (1) in which it was inter alia held that the order of deposit of rent does not survive the conclusion of proceedings before the Controller and such order being in the nature of an interlocutory order exhausts itself with the conclusion of the proceedings or becomes merged in the final order of determination of rent and, therefore, the order for deposit of rent made by the Controller cannot be invoked during the appellate proceedings under the Ordinance to strike off the tenant's defence.
11. In the instant case, the Appellate Court remanded the case to the Controller not only with the direction to frame issue with regard to service of notice but also, "then to dispose of matter in accordance with law." The only objection of substance, therefore, is that the rent order, dated 4th September, 1975 having been set aside by the judgment of the Appellate Court, the Controller could not penalise non-compliance with the same after remand of the case.
(1) PLD 1969 Kar. 546
12. Mr. Munawar A. Malik, the learned counsel for the respondent has argued that, firstly, the very order of the learned Additional District Judge for settlement of issue with regard to the question whether there had been a notice issued under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was not legal or proper. He argued that the application for ejectment in Rent Case No, 442 of 1975 was filed on 10th February, 1975 when the aforesaid Act of 1958 stood repealed on 28th January, 1975. The finding of the learned Additional District Judge, that the appellant had a vested right and protection in the disputed property by virtue of section 30 of the Act of 1958, which could not be taken away by repeal of the Act, was not legally sound.
13. The decision of the Additional District Judge was announced on 6th June, 1974 and, therefore, it is obvious that the decision in Sardar Ali v. Muhammad Ali (1) was overlooked by him, although the same was binding. The objection with regard to non-service of notice was objection to jurisdiction of the Controller and should not have been taken for the first time at appellate stage. In the aforesaid decision the practice of appellant to contend for first time at the appellate stage that for some defect or other the orders passed by the Rent Controller were without jurisdiction was deprecated. It was observed as under : "And as I have explained, this objection has to be pressed before the Rent Controller. But if appellate Court allows it to be entertained when it has not been pressed in the trial Court, then, in my humble opinion, the result would be to import the technicalities of the Civil Procedure Code into proceedings before the Rent Controller despite the clear warning of the Supreme Court in Khadim Mohyuddin's case. And, I am certain that if we disregard that warning, to which we are bound, the law's delays will increase beyond measure and the ends of justice will be frustrated. In my humble opinion I am also supported in my view by another judgment of their Lordships in Mahmood Khan v. Muhammad Ahmad. There the tenant challenged the Rent Controller's order fixing tentative rent on the ground that the landlord had not served the statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act , 1958. Reliance was naturally placed on the rule that the Rent Cont roller's jurisdiction was dependent on the service of this statutory notice, but the tenant's appeal was dismissed by the High Court on the ground that this objection was being raised for the first time in a 2nd appeal. The tenant, therefore, filed a petition for leave in the Supreme Court, which was dismissed. Cornelius, C.J., observed, 'The High Court refused to allow the plea to be taken for the first time in 2nd appeal since, for determination of the question, further evidence would be required. The same point is raised at the hearing of this petition. If the point had been taken before the Rent Controller evidence could have there been received and the point of correct amount that could have been demanded as rent could be determined."
14. With regard to the contention that after the repeal of the Displaced Persons (Compensation and Rehabilitation), Act, 1958, section 30 of that Act would not be attracted, Mr. Munir A. Malik, the learned counsel for the respondent has referred to the Supreme Court decision in
(1) PLD 1974 Quetta 68 Muhammad Ramzan v. Choudhry Bashir Ahmad (1) in which the contention that notwithstanding repeal of Act XXVIII of 1958, landlord was obliged to serve notice under section 30 was considered and it was held that character and intention underlying provisions of section 30 relating to issuance of notice and protection of tenant were of temporary nature and not intended to create any permanent liabilities and that right, obligation, etc. Covered by various clauses of section 6 of Act 10 of 1897, were, therefore, not applicable to section 30 after the repeal of Act XXVIII of 1958. It was further held that respondent/landlord was not under any liability to send such a notice before filing eviction petition. For the reason already given and also in view of the authoritative decision of the Supreme Court, it is apparent that the very decision and order of the learned Additional and District and Sessions Judge was not legally sound. Further as already observed, the remand of the case was not for any restricted purpose but for the disposal of the same in accordance with the law and, therefore, the impugned decision of the learned Controller is legal and proper. I, therefore, find no weight in this appeal which is dismissed. However, under the circumstances with no order as to cost.
(1) PLD 1981 SC 340