JUDGMENTMALIK MUHAMMAD QAYYUM, J.-This first appeal under section 24 of the Cantonment Rent Restriction Ordinance 1963 is directed against the order dated 19th of February, 1987 passed by an Additional Rent Controller Lahore Cantonment directing the ejectment of the petitioner.
About 19 years back i.e. On 31st of July 1969 an ejectment petition under section 17 of the Cantonment Rent Restriction Act 1963, was filed by Abdul Latif, the predecessor in interest of the resopndents alleging that he was the transferee of ground floor of property No. 180/181, B.1, Bazar, Lahore Cantonment and the respondents who were the transferess of first floor of this property, were in possession of one room on the ground floor transferred*to him and had became tenants under him. Lt was also averred that despite the service of notice under section 30 of the Displaced Person(compensation and Rehabilitation) Act 1958 the respondents had failed to pay the rent with the result that they had become defaulter and as such liable to be ejected. This application was contested by the appellants by filing written reply which led to the framing of following issues:-
1. Whether the relationship of landlord and tenant exists between the parties ? OPP.2. Whether statutory notice under section 30 of Displaced Person (Compensation and Rehabilitation) Act was served upon the respondents: OPP.
The parties produced oral as well as documentary evidence for these issues. The respondents examined Muhammad Munir Khan Postman as PW1 who stated that reports Ex. Pl/1 and Ex. P2/2 on the registered envelopes Ex.Pl and P2 were in his handwriting. He also produced Ex.P.3 theregistered acknowledgement due card signed by Pir Muhammad. The respondent Abdul Latif appeared as his own witness and had produced copy of the PTD Ex.P4, copy of demarcation conducted by the Deputy Settlement Commissioner Ex.P5, certified copy of the plan Ex.P6 He stated that against the demarcation conducted by the Settlement Authorities the appellants had filed a writ petition in the High Court copy of which is produced as Ex. P8 and the copy of the decision of High Court Ex.P7. He also deposed that notice under section 30 of the Displaced Persons (Compensation & Rehabilitaion ) Act has been served upon the appellants copy of which has been produced Ex. P10.
He further deposed that no rent was paid by the appellants after the service of this notice. The appellants on the other hand produced Syed Umar son of Habib Ullah as RW.I. According to this witness the appellants were the transferees of the room in their possession. One of the appellants namely Pir Muhammad appeared as RW.2 and made statement to the similar effect. Rw 3 Nisar Ahmad, attorney of appellant No. 1 also appeared as witness.
2. The learned Rent Controller by means of his impugned order held the appellants to be tenants under the respondents. As regards the issues No. 2 which related to serivee of notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act 1958, the Rent Controller observed that in view of the repeal of the aforesaid Act, the issue need not be discussed.
3. The learned counsel for the appellants have raised the following four contentions in support of their appeal:-
(i) That there was no relationship of landlord and tenant between the parties as the respondents, were not the transferees of the room which is in possession of the appellants.(ii) That the learned Rent Controller was under an obligation to have decided issue No.2 regarding service of notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act 1958.(iii) That Mr. Khan Bahadur the presiding officer who passed the impugned order, was not duly appointed as the Additional Rent Controller I^ahore Cantonment and as such his order is vitiated.(iv) That in any case the Rent Controller could not have directed the ejectment after deciding preliminary issue but should have held further proceedings in the matter after framing issues on merits.
4. In my view none of the contentions raised by learned counsel for the appellants can previl. As regards the first contention, it is important to note that the controversy as to which portion was transferred to the petitioners stands finally decided by the judgment of this Court in W.P.985-R of 1971 as copy of which has been produced as ex.P.7 in this case. The leamed counsel for the appellants has contended that there are two separate properties being numbers 180 and 181 out of which property No.180 were transferred to the appellants and property No.181 to the respondent and further that the appellants were in possession of property No. 180 which the respondents have no concern. Similar arguments were raised by the appellants, who were the petitioners in aforementioned writ petition, and this Court in W.P. 985-R/1971. Were repelled. It was held that the Settlement Department from the very beginning had treated the two properties as one property and the appellants were transferred upper portion while the respondents were allowed the transfer of the lower portion, lt was further clarified that the appellants were allowed nothing on the lower portion at all. Ln face of this finding by this Court it is not open to the petitioners to reagitate or to reopen the matter which stands conclusively and finally decided, lt is also to be noted that Nisar Ahmad the son and attorney of the respondents while appearing as RW3 has categorically admitted that his father was transferred the upper portion alone. The learned Rent Controller was as such correct in holding that the respondents were the transferees of the ground floor, a part of which is in possession of the resopndent who by operation of law had become the tenant.
5. As regards the second contention of the learned counsel for the appellant, the Displaced Persons (Compenstion & Rehabilitation) Act stands repealed with effect from 1.7.1974. Ln Muhammad Alam V. Ameer- un-Nisar (PLD 1984 Karachi 135) it was held, in similar circumstances that after the repeal of the Displaced Persons (Compensation & Rehabilitation) Act the necessity to prove the service of notice disappeared even in a pending matter. The learned High Court in the precedent case had relied upon the judgment of Supreme Court Muhammad Ramzan V, CH. Bashir Ahmad (PLD 1981 S.C. 340). Similar view was taken in Muhammad Jumman Vs. Muhammad Bachai (1985 C.L.C. 48). 1 am in respectful agreement with the view in the above cases and hold that it was not necessary to prove the service of notice after the repeal of the Act. Leamed counsel for the respondents has relied upon Muham-iad Ismail and another V. Sh. Muhammad Munawar (1984 S.C.M.R. 27) and Ch. Haji Muhammad Ishaque V. Ganga Ram (1985 S.C.M.R. 2043). None of these authorities deal with the question which has arisen for decision in the present case i.e. The effect of the. Repeal of section 30 of the Displaced Persons (Compensation & Rehabilitation)Act 1958 in pending proceedings. The leamed counsel for the appellants has not disputed the proposition that, in' any event after the repeal of the Act a fresh petition can be filed without serving any notice, As observed by their Lordships of the Supreme Court in Mst. Amina Begum and others V. Mehr Ghulam Dastpir (PLD 1978 S.C. 220) in such like circumstances, the cause brought by the party should not be dismissed but the court should take notice of the subsequent events, ln these circumstances it will be highly inequitable to force the respondent to file a fresh ejectment petition on the basis of mere technicality when already about 20 years have been spent in this litigation.
6. The next contention of the leamed counsel for the appellant, that leamed Rent Controller after deciding two issues should have held further enquiries, has not impressed me. Lt is, no doubt,correct that in view of recent pronouncements of the Supreme Court, the tenant by denying the relationship of land lord and tenant does not forfiet his tenancy and the denial simpliciter cannot form basis for directing his eviction from the premises. However, the question as to whether after the decision of issue relating to landlord and tenant, further enquiry is to be held it depends on facts of case. If the tenant in his written reply or even in his statement, has not taken up the position that he has been paying rent to the landlord there is no necessity of holding of any further enquiry. On his own admission, he cannot but be held to be a defaulter, ln the instant case there was no plea raised by the appellants in their written reply that they had ever paid or tendered any rent to the respondents. Therefore, it would have been futile for the Rent Controller to have proceeded further to determine whether the rent had been paid or not. Ln fact in the absence of any such assertion in the written statement no issue would possibly arise for determination. THe leamed counsel has however, contended that to order ejectment on theground of default or not was discretionary with the learned Rent Controller and if the issue had been framed, the Rent Controller could have exercised his discretion in favour of the appellants! Lt is, however, to be noticed that the appellant all along and even before this Court remained adamant in denying the status of the landlord. Notwithstanding the decision of this Court in Writ Petition 985 of 1971, on 27th of May, 1985 he persisted this denial before the Rent Controller as also before this Court. In the face of this situation the appellant was not entitled to exercise of any discretion in his favour and was deary a wilful defaulter (See Pehlaj R.I v. Khcm Chand and others ) (1987 SGMR 1772).
7. As to the last contention of the learned counsel that Mr. Khan Bahadur was not a duly appointed as Additional Rent Controller suffice it to say that such objection was not raised by the respondents during the course of trial before Mr. Khan Bahadur. The appellant fully participated in the said proceeedings and never objected to the same, lt appears that after an adverse decision by the officer this objection for the first time has been raised in appeal, lt is correct that in law a jurisdictional objection can always be raised but it is equally true that if a party does not object to the jurisdiction of the tribunal or a Court and after having fully paritcipated in the procedings loses his cause before that forum, he cannot be allowed to challenge the decic; _: on the ground of lack of jurisdiction. See Feroze Shah and two others v. Manzoor Hussain Shah and others (1969 S.C.M.R.
96 ). Furthermore as to whether Mr. Khan Bahadur was duly appointed Rent Controller or not, is a matter which requires factual probe. According to the learned counsel Mr. Bahadur was the Rent Controller and Executive Officer of Gujranwala Cantonment while Mr. Muhammad Tariq Naeem was the Additional Executive Officer and Additional Rent Controller Lahore Cantonment.
Mr. Muhammad Tariq Naeem went to America and in his absence Mr. Khan Bahadur was asked to work as Additional Executive Officer of Lahore Cantonment and as Additional Rent Controller by the Director Military Lands and Cantonments which according to the learned counsel for the appellant was not proper. He has pointed out that under section 6(2) of the Cantonment Rent Restricition Ordinance 1963, the appointment of an Additional Rent Controller can only be made by the Central Government and that too by notification in the gazette. There is a presumption of regularity and correctness attached to all officials acts, lt is not denied that Mr. Khan Bahadur was working as Additional Rent Controller Lahore Cantonment and he was also duly appointed Rent Controller for Gujranwala Cantonment. Under section 6(2) of the Ordinance, a Rent Controller can be appointed for more than one Cantonment. The question as to whether any order was passed by the Central Government or by the Director Military Land Cantonment and if so whether the authority which passed such an order had the power to do so requires evidence which is wholly absent in the present case. Since no objection was raised by the respondents at the relevant time, 1 am not inclined to allow the appellants to agitate the matter at this stage of the procedings especially when the ejectment petition had remained pending before the Rent Controller for a period of about 18 years.For the foregoing reasons 1 find no merit in this appeal and dismiss it leaving the parties to bear their own costs. The respondents are allowed two months time to vacate the premises.