' The dispute between the parties is about a grace of property No. 148-A (Old No.152), Ward No.3, Gall Vakilan, Faisalabad, which is being used for the purpose of a ration depot since the year 1948.
The entire property No.148-A was originally transferred on the 10th October, 1959, to the appellant.
Some appeals and revisions were filed against this order by Muhammad Tufail, Muhammad lqbal and the respondent. It was agreed upon at the time of arguments that the appeal of Muhammad Tufail succeeded before the Additional Settlement Commissioner, on the 5th March, 196G, to the extent that three rooms on the ground floor were ordered to be transferred to him. This order was, however, set aside by the Settlement Commissioner, on a revision filed by the appellants on the 6th May, 1960. The Chief Settlement Commissioner maintained the order of the Settlement Commissioner on the 7th July, 1960. Thereafter, a writ petition was filed by Muhammad Tufail in the High Court which was dismissed. The respondent himself could not succeed in his appeal or revision. Muhammad lqbal was initially transferred in appeal three rooms on the upper floor but he was also excluded from the revision. His writ petition having failed. He filed a petition for Special Leave to Appeal before the Supreme Court in which he succeeded. The appeal was allowed by the Supreme Court and his case was remanded for consideration to the Settlement Authorities. In post-remand proceedings, the Settlement Authorities transferred one room on the upper floor to him. The rest of the house remained transferred in the name of the appellant.
2. The appellant served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, upon the respondent on the 17th April, 1961, and thereunder filed an application for his ejectment. This application, however, failed before the learned Rent Controller since the proceedings about transfer of the house were still sub judice between some party or the other. It was, therefore, held that the appellant had not succeeded in proving the relationship between the landlord and the tenant between him and the respondent. This order was maintained in appeal too. After the conclusion of all the proceedings between the appellants and Muhammad lqbal, a fresh notice under section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958 was given on the 7th December, 1974, which was received by the respondent on the 18th December, 1974. The respondent sent a Money Order of Rs.36 as rent for three years at the rate of Re.1 per month on the 28th January, 1975, vide Ex.R.4. When this money order was not accepted, he sent a sum of Rs.390 as rent at the rate of Rs.10 per month on the 11th March, 1975, vide Ex.R.5. This money order too was returned.
3. An application for ejectment was filed by the appellant against the respondent on the 6th March, 1975 on ground of default and requirement of the house for personal use since he wanted to shift his legal practice from Lahore to Faisalabad. In order to make out a ground of default the appellant made a detailed reference to the proceedings so as to justify the notice dated the 17th April, 1961, which is admitted by the respondent to have been received.
4. The learned Rent Controller did not agree that there was any dafault. He held that the first notice became ineffective in view of the orders passed by the Rent Controller dismissing the appellant's application for ejectment and the order of the Additional. District Judge maintaining that order.
Relying upon the notice dated the 7th December, 1974, he found that valid tender had been made of the rent by money order Ex.R.5. He, therefore, answered the first issue about default against the appellant. Now, there were two other issues left. One was about bona fide requirement and the other whether the premises in dispute was non-residential. He found both these issues in favour of the appellant and directed the respondent to vacate the premises.
5. In the appeal filed by the respondent the learned Additional District Judge did not consider the first issue. He confined his finding to the second and third issues. He held that the property in dispute had lost its residential character since despite its use as a Ration Depot by the respondent the latter had filed a C.H. Form for its transfer. He, however, held that the appellant did not require the premises in dispute in good faith for his personal use since he was already in possession of two portions of Building No. 148-A and he had failed to prove the ownership of a car. He held that the garage was only a room in a huge building.
6. The learned counsel for the appellant argued that the first notice of 1961, despite the earlier orders of the Rent Controller and the Additional District Judge revived as soon as the proceedings regaridng the transfer of three rooms to Muhammad Tufail came to an end, He submitted that the finding of the learned Rent Controller that the garage stood transferred to Muhammad Tufail was incorrect and is not justified by the record. He placed reliance upon F.A. Saleem v Muhammad Yaqub Khan (PLD 1967 Lahore 683) and Abdul Saeed v Abdul Salam Farooqui (PLD 1971 Karachi 217).
It was held in the Lahore case that a notice given under section 30 was not invalidated by an order of status quo passed in revision by the Settlement Authority. In the Karachi case it was observed that the original notice only remained suspended during the period but the matter remained sub judice between the parties on the settlement side it did not become invalid. He supported the concurrent finding of the learned Rent Controller and the learned Additional District Judge about the property in dispute being residential in character, by referring to Suba v. Siraj Din (PLD 1977 Lahore 1263).
7. Mr. Muhammad Saeed Ansari, Advocate, on the other hand tried to justify the order of the learned Additional District Judge on the ground that house No. 148-A is a huge building comprising several residential units some of which were in possession of the appellant and his family being a small one he could not eject the other tenants including the respondent from the other portions of the same property. He submitted that mere expression of intention of shift to another city is no ground unless the appellant has shifted to Faisalabad. The sum and substance of the argument is that the petition as such is premature. He also made reference to some later developments but it is unnecessry to refer to them since neither there is a petition nor any case is made out for additional evidence under Order XLI rule 27 C.P.C. He justified the order of the learned Rent Controller on Issue No.1 and further argued that the appellant could not re-open this matter since he had not filed any appeal against the order of the learned Rent Controller dismissing his petition to the extent of allegation of default.
8. I do not agree with the learned counsel for the respondent that an appeal or cross-objections were required to be filed by the appellant against the decision of the learned Rent Controller on the issue of default against the appellant. In fact, having succeeded in obtaining an order of ejectment in his favour the appellant had no right to file an appeal. He could have filed an appeal under section 15 of the Urban Rent Restriction Ordinance only against the final order of the Rent Controller and not against his finding on any particular issue. It was open to him to justify the order of the learned Rent Controller on any of the points decided against him by showing that the finding on such point was not legally warranted. He could thus justify the order on issue No.1, therefore, repell this objection.
9. From the facts stated above it appears clear to me that the finding of the learned Rent Controller that this garage was also one of the rooms transferred to Muhammad Tufail was correct. The effect of this finding, however, is that the moment the litigation between Muhammad Tufail on one hand and the appellant on the other ceased by the dismissal of the former's writ petition by the High Court, the notice under section 30 given on the 17th April, 1961, became effective. It is the case of both the parties that the question of relationship of landlord and tenant was decided in the earlier proceedings against the appellant on account of this garage having been transferred to Muhammad Tufail after the issuance of the P.T.O. In favour of the appellant and in view of the pendency of proceedings in regard to this transfer before the High Court. In view of this, I agree with the argument of the learned counsel for the appellant that the effect of the notice under section 30 served upon the respondent on the 17th April, 1961, remained suspended during the period that the dispute between the appellant and Muhammad Tufail was sub judice. As soon as Muhammad Tufail finally lost his case regarding the transfer of inter alia the garage, the P.T.O. Issued in the year 1959 in favour of the appellant and the notice served by him in the year 1961 upon the respondent stood revived. The authorities relied upon by the learned counsel for the appellant fully support him in this connection. I am, therefore, of the view that the notice became effective from the time when the writ petition of Muhammad Tufail against the order of the Settlement Authority excluding him from the transfer of any portion of property No.148-A was dismissed. The second notice appears to have been served upon the respondent only by way of abundant caution. It will be futile to rely upon it for the purpose of determining the question of default.
10. In these circumstances, the dafault having taken effect at most within 90 days from the period that the notice stood revived, which was several years ago before the second notice was given, the respondent was proved to be a rank defaulter in the payment of rent and is liable to be ejected from the property on this ground alone.
11. In view of this finding it is not necessary to go into the question of personal requirement.
However, agree with the argument of the learned counsel and the concurrent finding of the learned Rent Controller that the property in dispute is residential in character. This is borne out by the definition of "Non-residential Building" in the West Pakistan Urban Rent Restriction Ordinance, 1959, which means a building being used solely for the purpose of business or trade. It will be seen that the entire building is property No.148-A of which only a very small portion i.e. Garage, is used for nonresidential purpose. Since the entire building is not being so used, the garage also cannot be held to be a non-residential building. This point finds support from Suba v. Siraj Din (supra).
12. The learned Additional District Judge was mainly guided by the absence of evidence about the appellant having a car, I do not see how it was incumbent upon the appellant who required the entire house including this garage for his personal use to prove in addition that he had a car also.
The fate of the entire house is to be taken into consideration for the purpose of requirement of the appellant. It is his case from the very beginning that he had taken proceedings of ejectment against all the different occupants of this property No.148-A since he required the house meaning thereby the entire house for his own use. This is supported by the fact, that he had already been successful in ejecting at least two of the tenants and the proceedings for ejectment were pending against others. It has never been the case of the respondent on the other hand that the appellant cannot succeed in the case since he has no car and there was no possibility of his using the garage. There was, therefore, no necessity on the part of the appellant to produce such evidence.
This is sufficient for setting aside the finding of the learned Additional District Judge even if it is considered to be a finding of fact.
13. I also do not agree, as a point of law, with the ground given by the learned Additional District Judge, as well as urged by Mr. Muhammad Saeed Ansari, that the appellant having a small family should be confined to a self-contained residential unit the possession of which he had already obtained from at least two tenants. The expression "self-contained residential unit" is not recognized by the West Pakistan Urban Rent Restriction Ordinance, 1959, which recognises a residential building or house. This is a concept of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, but that principle cannot be invoked even from that Act in view of the admitted circumstances of this case. It is clear from the facts given by the learned e,',trisel as well as from the facts on the record that minus the room .Timately transferred to lqbal on the upper storey the entire building has been transferred to the appellant as a house and not as a house containing different self-contained residential units. If it had been so such self-contained residential unit would have been treated to be different houses and the appellant could not have been held entitled to more than one house under the scheme of the Settlement Act.
14. It is worth noticing that during the cross-examination of the respondent, a suggestion was put to him whether he had seen the house of the appellant in Lahore, which clearly meant to signify that despite having a small family, as the respondent says, he was living in a big house which contained a garage also in Lahore. Mr. Muhammad Saeed Ansari has also relied upon his living in a big house for the argument. Same is the evidence of the appellant himself. In these circumstances, it will not be fair for the Court to determine whether only a portion of the house will be sufficient for the residence of the appellant.
15. The last argument that mere expression of intention to shift to another city is no ground is also without force, since the appellant cannot take the risk of shifting unless the house is vacated. It is clear from the evidence that despite the fact that two portions of the house were vacated by two different tenants against whom ejectment proceedings were taken, the appellant had not shifted his residence nor had let out those portions to any other person. This was sufficient to corroborate his statement that he wished to reside in the entire house.
16. 1, therefore, reverse the finding of the learned Rent Controller on issue No.1 and the learned Additional District Judge on issue H No.2 and allow this petition with costs. The respondent shall vacate the premises by the 3rd May, 1978, and hand over its possession to the appellant. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.