1. This appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, calls in question the decisions of the Controller and of the first Appellate Authority, given respectively on 28-3-1966 and 26-10-1966, dismissing the application filed by the appellant for the ejectment of the respondent.
2. The facts which form the background of this appeal are these: The respondent has been residing since Partition in tenement J of Chandomal Chellaram Building, bearing No. GRW-63-1/1, VII A. W.
3. 41/1, situated near Gandhi Garden, Lawrence Road, Karachi. The said tenement, which is an evacuee property, was allotted to the appellant by a P. T. O. Dated 21-7-1960. On 30-1-1961, the appellant served a notice upon the respondent under the provisions of section 30 of the Displaced Persons (Compen--sation and Rehabilitation) Act, 1958, informing the respondent that the tenement in question had been transferred to the appellant and making a demand upon the respondent to pay rent to him for the above tenement from the date of it allotment to the appellant, at the rate of Rs. 50 per month, which was the latest assessment made for the tenement by the Karachi Municipal Corporation (K. M. C.). It appears that the appellant did not make any payment of rent to the appellant and hence the appel--lant resorted to distress warrant proceedings against the respondent in the Small Causes Court, Karachi. The said Court directed the respondent to pay rent to the appellant from 21-7-1960 onwards at the rate of Rs. 50 per month, which was in accordance with the latest assessment of the K. M. C. The respondent deposited a sum of Rs. 50 and the balance was to be paid by him in monthly installments. According to the appellant, the respondent did not pay the rent of the tenement in spite of the aforesaid order of the Court of Small Causes, and hence he filed an ejectment application against the respondent under the Act. That application appears to have been filed in 1962, but the exact date does not appear from the record. In that application an order was made by the learned Controller requiring the respondent to deposit rent, including arrears, at the rate of Rs. 50 per month. It is, however, stated in the order that the rent to be deposited by the respondent would be subject to adjustment, if any, after his appeal was decided by the K. M. C. This rent application was ultimately dismissed on 4-10- 1963 by reason of the absence of the appellant. The appellant subse--quently filed another ejectment application in 8-5-1965, which application has given rise to the present appeal. In that application, he sought the ejectment the respondent on two grounds, namely, that the appellant had been a persistent defaulter in the payment of rent, and further, that he requires the premises in question for his own personal use. The respondent resisted the application and claimed that he had paid rent to the appellant through Money Orders up to and including the month of April 1965, and that although he had sent rent for the subsequent month to the appellant through Money Order, the appellant had refused to accept the rent. He also disputed the claim of the appellant that the latter required the house in good faith for his personal occupation.
4. The learned Controller held that since the K. M. C., on the application of the respondent herein, had revised the assessm ent in respect of the tenement in question from Rs. 50 to Rs. 15, the appellant herein was entitled to pay rent at the rate of Rs. 15 per month only. He also held that the respondent had not committed default in the payment of the due rent and that he had paid rent up to May 1965, and thereafter he had sent rent by Money Orders, which were refused by the appellant herein.
5. The learned Controller further took the view that the appellant herein had failed to establish the fact that he required the tenement in good faith for his personal use.
6. Aggrieved by the aforesaid order, the appellant preferred an appeal to the first Appellate Authority which has concurred with the finding of the learned Controller that the respondent herein had not com--mitted default in the payment of rent. The first Appellate Authority did not consider the question whether the appellant required the house in good faith for his own occupation, as according to the order of that authority this point was not pressed by the learned counsel for the appellant.
7. Mr. Aqil Ahmed Jafri, the learned counsel for the appellant, has pressed the appeal on the twin ground that the respondent had committed default in the payment of rent and that further the appellant requires the house in good faith for his own occupation. According to Mr. Jafri, since the claim regarding requirement of the tenement by the appellant for personal occupation was specifically stated in the memo. Of Appeal which was filed before the first Appellate Authority, the appellant cannot be considered to have given up this claim.
8. Although the appellant herein in his eviction application had contended that the respondent herein was a persistent defaulter and that a sum of Rs. 2,010 was outstanding against him on 8-5-1965, when the said application was filed, in his evidence in Court he has admitted that during the pendency of the first rent application, the respondent herein had been depositing rent for the tenement at the rate of Rs. 15 per month, which was the provisional rent fixed by the Controller in view of the revised assessm ent of the K. M. C , and that after the dismissal of the said rent application, he had, with the permission of the Court, withdrawn from the Court all the amount deposited by the respondent as rent for the premises in question. He has further admitted that thereafter the respondent had been sending him every month Rs. 15 through Money Order and that he had been accepting that amount. He has also admitted that he continued accepting rent at Rs.
9. 15 per month from the opponent through Money Orders up to May 1965, and that even thereafter the respondent had been sending him monthly rent through Money Orders at the rate of Rs. 15, but he refused to accept the said Money Orders. It is thus clear that the respondent had been sending to the appellant and the latter had been accepting rent for the tenement in question at the rate of Rs. 15 per month and that such rent had been paid for the period from 21-7-1960 up to the time when the second rent application was filed.
10. Mr. Aqil Ahmad Jafferi, however contended that the appellant was entitled under the provisions of clause (a) of subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to charge rent for the premises in question at the rate of Rs. 50 per month, in accordance with the assessm ent made for the said premises by the K.M.C., vide its letter dated 30-12-1960, which is Exh. 2 on the record of the Con--troller. Mr. Jaffari's argument was that since the respondent had admittedly failed to pay rent for the premises at the above rate, he has become a defaulter and is thus liable to ejectment. Mr. Zahiruddin Khan, the learned counsel for the respondent, on the other hand contended that the assessment order (Exh. 2) dated 30-12-1960, by the K. M. C. Was for the entire building and not for the tenement in question, and that further the said order was revised by the K. M. C. By its memo. (Exh. 12), dated 10-8-1963, according to which the assessm ent for the tenement in question was fixed with effect from 1-7-1960 at the rate of Rs. 15 per month. The memo. (Exh. 12) does support the latter contention of Mr. Zahiruddin and even Mr. Jaffari had to concede the position that the assessment of the tenement was revised by the K. M. C.
11. As contended by the respondent. In support of his contention that the assessment order (Exh. 2) was for the entire building and not merely the tenement in occupation of the respondent, Mr. Zahiruddin relied upon the document which is Exh. 11 on the record of the Controller. This is a true extract from the Revision Book of the Chief Assessor and Collector K. M. C. And is for the year 19.17-
48. It shows that the gross monthly assessment for the entire building, of which the tenant in occupation of a respondent was a small part, was Rs. 50 per month. No presumption, however, can be drawn from this extract that the assessment for the entire building continued to be pegged at this rate up to 1960. It is common knowledge, of which judicial notice can well be taken, that the assessm ent of properties within the limits of K. M. C. Was sharply raised after 1947. Furthermore, the assessm ent order Exh. 2 clearly shows that it is not in respect of the entire building but only the tenement owned by the appellant and which is in occupation of the respondent. If there had been no amendment or revision of this assessment, the respondent would have been liable to pay rent to the appellant at rate of Rs. 50 per month and the mere fact that he may have approached the K.
12. M. C. For revising the assessm ent would not have been of any assistance to him view of the decision of their Lordships of the Supreme Court in the case of Ahmad Khan v. Sakina Bi (1969 SCMR 435). The position in the instant case, however, is materially different from the one in the reported case. As already indicated, in the instant case, not only the K. M. C. Had revised the assessment in respect of the tenement in question but such revised assessment was made effective from 1-7- 1960, the date when the appellant herein was transferred the premises in question. The appellant thus is entitled only to pay rent at the aforesaid rate, which is in accordance with the latest assessm ent made by the K. M. C. Since the respondent herein admittedly paid rent at the above rate up to the time when the rent application out of which this appeal has arisen was filed, and even thereafter sent rent by Money Order at the aforesaid rate to the appellant but the latter refused to accept the same without assigning any reasons, the appellant cannot be considered to be in default. As admittedly no rent was due from the respondent on the date when the rent application was filed by the appellant, on the footing of rent at the rate of Rs. 15 per month, which was the proper rent payable by the respondent, the dispute as to default in payment of rent would be B covered by the decision of their Lordships of the Supreme Court in Samiullah v. Muhammad Saleem (1971 SCMR 725). In that case, the law was thus stated and interpreted by Salahuddin Ahmed, J.: ---- "It is thus evident that it is only when a tenant has not paid the rent and that rent is still outstanding against him that a landlord is entitled to maintain an application for eviction of his tenant under section 17 (2)(i) of the Act. There is no question of tendering of rent in this case.
13. As has been noticed already, the landlord had already received the rent which had been deposited by the tenant with the latter's consent and therefore, on the date when the landlord filed the apple- -cation for ejectment before the Rent Controller there was no rent outstanding against the tenant.
14. It has been contended on behalf of the tenant-appellant that respondent No. 3 having agreed to and accepted the aforesaid rent, there was a tacit waiver of forfeiture of the lease. He has in effect armed the continuance of the lease, and thereby determined the opinion of taking advantage of the forfeiture for condition broken. We accept this contention."
15. The only other ground on which the appellant has sought the ejectment of the respondent is that the appellant requires the tenement in question in good faith for his own occupation. Although this ground was not urged before the first Appellate Authority, in view of the fact that this ground was stated not only in the ejectment application but also in the Memo. Of Appeal before the first Appellate Authority, I have permitted Mr. Aqil Ahmad Jaffri to argue this question also. He has contended that the claim of the appellant in this behalf is genuine as he has no other house at Karachi and for want of a house he has been forced to reside at Hyder--abad. Mr. Zahiruddin for the respondent, however, has raised a two-fold objection to this claim. His first objection is that the respondent is entitled by virtue of the proviso to section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to protection from eviction on the ground of personal requirement of the landlord for a period of six years from the date of notice of the transfer of property to the transferee, and since the appellant had given notice of the transfer to the respondent on 30-1-1961, and as the eviction application was filed and even the appeal by the first Appellate Court was decided before the expiry of the said period of 6 years, the appellant cannot succeed on this ground. His con--tention in other words is that the appellant was not entitled before the expiry of the statutory period of 6 years even to file an eviction apple--cation on the ground of requirement of the tenement for personal occupation. His second objection is that the appellant in any case has failed to establish that he requires the house for his personal use.
16. Mr. Jaffari, while conceding that the ejectment application was filed by the appellant before the statutory period of 6 years and that this period expired during the pendency of the second appeal in this Court, contended that the law merely contemplates that the transferee of art evacuee property cannot eject a tenant, who has the protection granted to him under proviso (b) to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, for a period of 6 years from the date of notice of transfer, but this does not mean that he cannot institute proceedings for the ejectment of the tenant on the ground of personal requirement of the landlord before the expiry of the said period. His argument, in other words, is that proceedings for the ejectment of such a tenant on the ground of personal requirement of the landlord could be instituted before the expiry of the statutory period of 6 years but an order for ejectment of the tenant cannot be made before the said period. He accordingly urges that since this period has admittedly now expired, the respondent is not entitled any further to the protection of the statutory period and hence is liable to be ejected. In support of his contention he has relied upon a decision of the Peshawar High Court, reported as M. Wahabuddin & Sons v. Controller of Rents (PLD 1971 Pesh. 236). That was a case under the Cantonment Rent Restriction Act, 1963, the provisions whereof for the ejectment of a tenant on the ground of requirement of the landlord of a premises for his own occupation are prac--tically identical to those contained in the Act. The landlord, who had been transferred evacuee property, filed an ejectment application against the statutory tenant before the expiry of the statutory period The objection taken against the institution of the eviction proceedings by the landlord before the expiry of the statutory period of six years was repelled and it was held as follows:- " . . . . The admitted position now is that the petitioner has already remained in possession of the disputed shop for more than six years and has also occupied his own shop premises. This development, which has taken place during the pendency of the proceedings, can be taken due notice of by this Court, and consequently it would be wholly unjust to dismiss the eviction application at this stage on a technical ground that when it was filed the period of six years had not expired."
17. PLD 1964 SC 106).
18. "An argument had been addressed to us that the suit was premature and should have been dismissed on that ground. The suit had been filed on 17-1-1958 that is long before 31-12-1959 on which date the period of the licence was to terminate. The trial Court had dismissed the suit. The Additional District Judge on appeal had decreed it on a date when the period of the licence had expired and the appellants had a right to possession. It was open to the appellate Court to have decreed a suit which was premature when it was filed but the cause of action respecting which had arisen during the pendency of the suit. We would not be prepared at this stage to dismiss the suit on this technical ground and to direct the appellants to file a fresh suit."
19. The above observations of their Lordships of the Supreme Court were in respect of a suit instituted upon a licence for a specified period and the licensee was entitled on the expiry of that period to immediate possession of the licensed property. In the case of a tenant who is entitled to pro-- tection under clause (b) of the proviso to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, not only is the transferee landlord debarred from ejecting the tenant on the ground of requiring the premises for his personal occupation so long as the period of protection has not expired, but even after the expiry of the said period, he can only eject the tenant in accordance with the provisions of the law regulating the relationship of landlord and tenant. In this con--nection the provisions of subsection (4) of the above section are relevant.
20. The said subsection reads as follows:- "(4) On the expiry of the period mentioned in proviso (b) to sub--section (1), or on the contravention of any of the provisions of sub--section (3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship."
21. A bare perusal of the aforesaid subsection makes it clear that the pro--visions of the Ordinance, at least regarding the ejectment of a tenant, would not become applicable in respect of a tenant entitled to protection under subsection (1) of section 30 of the aforesaid Act until the period of protection has expired or when the protection is lost. If the relationship of a trans--feree landlord and a tenant entitled to protection under the aforesaid Act is only to be regulated under the Ordinance after the expiry of the period of protection or when the protection has been lost, can the landlord apply under the Ordinance before the expiry of that period or before the tenant has lost the protection, or to put it in different form, can the question of claim of such a landlord for requirement of the premises for his personal occupation be entertained under the Ordinance during the subsistence of n the period of protection. As I read subsection (4) of section 30 of the aforesaid Act, it appears to me plain that since the provisions of the Ordinance in regard to relationship of landlord and tenant do not apply during the subsistence of the protection to the tenant under the Act, no application can be made by the landlord for the ejectment under the Ordi--nance of the tenant, or if made, can be entertained by the Controller, during the subsistence of the protection. The making or entertainment of such an application would be a proceeding under the Ordinance, and since the Ordinance is not to apply during the subsistence of protection, such proceeding would be in contravention of the provisions of section 30 of the Act. I am conscious of the observation of the Supreme Court in the case of Mahomad Jamil v. Improvement Trust (PLD 1965 SC 898), that a Court has a discretion to take notice of events subsequent to the institution of a suit, but even in that case their Lordships pointed out that it is not bound to do so and "it can adjudicate upon rights of parties as they existed at the date of institution of the suit leaving the questions arising out of subsequent events to be decided in fresh proceedings." In cases where resort can be had to a provision of law only upon the fulfillment of certain conditions, then those conditions must first be satisfied before any proceedings can be resorted to under that law. With very great respect to the learned Judges of the Peshawar High Court who decided the case of M. Wahabuddin v. Controller of Rents, I am of the opinion, on the basis of subsection (4) of section 30 of the aforesaid Act, the provisions whereof were apparently not brought to the notice of their Lordships that the eviction application filed by the appellant under the Ordinance during the subsistence of the period when the respon--dent was protected against ejectment under the Displaced Persons (Compen--sation and Rehabilitation) Act, 1958, was not competent and was premature. The questions whether the appellant required the premises in good faith for his personal occupation, as contemplated by section 13(3)(a)(i) of the Ordinance and whether he was not occupying another residential building, suitable for his needs at the time, in the same urban area, could only be considered by the Controller when the relationship of landlord and tenant between the appellant and respondent was to be regulated under the Ordinance, and this was to be only after the expiry of the period of protection.
22. Even on merits, the learned counsel for the appellant has failed to satisfy me that the appellant requires the tenement in question for his personal occupation. The appellant has admitted in his evidence that he is residing in Hyderabad since 1960-61 and that he is doing business in that city. It is possible that he may at one time have been residing at Karachi, but since he appears to have permanently shifted to Hyderabad, where he is doing business, he could hardly require the premises in question at Karachi in good faith for his personal occupation. I am, therefore, in agreement with the finding of the two Courts below, which is based on tangible evidence, that the appellant has failed to establish his claim that he requires the premises in question in good faith for his personal use.
23. For all these reasons I find no merit in this appeal. I would accordingly dismiss the same with costs.
24. K. B. A.