' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of an application under section 13 of the Punjab Urban Rent Restriction Ordinance filed by Zafar Hussain petitioner herein against Manzoor Hussain respondent No,1 and Fazal Hussain the predecessor-in-interest of respondent No,2 with respect to shop bearing No,B-3/275 situated in Bazar Maqbara Panday Shah, Gujrat, on the ground of default in payment of rent with effect from March, 1975.
2. In the written reply filed by them respondent No,1 and predecessor of respondent No,2 denied that they were tenants under the petitioner and instead pleaded that they were occupying the shop as tenants under Islahi Committee (Registered) Maqbara Panday Shah, Gujrat.
3. The learned Rent Controller framed a preliminary issue regarding the existence of relationship of landlord and tenant between the parties and by his order dated 13th of May, 1984 held that the respondents were tenants under the petitioner and proceeded to direct their eviction from the shop in dispute.
4. Aggrieved by this order respondents 1 and 2 filed an appeal which was heard by an Additional District Judge at Gujrat who vide his order dated 14th of October, 1984 upheld the findings of the Rent Controller on the issue relating to the existence of relationship of landlord and tenant between the parties but set aside the older of ejectment holding that without determining whether a notice under section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 had been served upon the respondents by the petitioner, no order for ejectment could be passed. The case was therefore, remanded for further proceedings to the Rent Controller.
5. In the post-remand proceedings the Rent Controller framed the following issues:-
(1) Whether the respondents have committed default in payment of rent? OPD.
(2) Relief.
' By the order dated 3rd of March, 1985, the Rent Controller held that the notice under section 13-A had not been served upon the respondents by the petitioner and as such, the respondents were not defaulter in payment of rent. As a consequence of these findings, the ejectment petition was dismissed. This order of the Rent Controller was challenged by the petitioner by filing an appeal which was accepted by the Additional District Judge on 21st of July, 1985, who was of the view that as no issue regarding service of notice under section 13-A of the Ordinance has been framed by the Rent Controller, the order passed by him is illegal. The Additional District Judge, therefore, framed the following additional issue and also recast Issue No,2 as under:- (1-A) Whether the petition is preceded with a notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance? OPA.
(2) If issue No,1-A is not proved, whether the respondent has not committed the default in payment of rent to the appellant-petitioner?
6. The case was once again remanded to the Rent Controller who vide his order dated 24th of March, 1986 decided the issues in favour of the petitioners and directed the eviction of the respondents.
6. This order of the Rent Controller was challenged by the respondents by filing an appeal which was accepted by the Additional District Judge, Gujrat on 20-10-1986 on the finding that notice under section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 had not been served upon the respondents by the petitioner before filing the ejectment petition. The finding of the Rent Controller on this issue was, set aside. The Additional District Judge did not, however, decide issue No,2 relating to default.
7. The petitioner has now filed this constitutional petition assailing this judgment of the Additional District Judge.
8. Sh. Muhammad Shafi, the learned counsel for the petitioners has raised two contentions in support of this petition:-
(i) That in the present case there was no necessity of serving any notice under section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 as there was no transfer of ownership. It was explained by the learned counsel that the shop had been rented out by the petitioner to respondents 1 and 2 but was taken over by the Chief Administrator of Auqaf through a notification dated 24th of January, 1973 issued under section 7 of the Waqf Properties Ordinance, 1961. However that notification was rescinded on 15th of January, 1975 with the result that the property stood restored to the petitioner. According to the. Learned counsel, the Additional District Judge was in error in treating the restoration of property as transfer of ownership.
(ii) That even if a notice under section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 was necessary, the ejectment petition was itself a notice. Reliance has been placed on Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others 1986 SCMR 751 and Syed Azar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24.
9. The learned counsel for the respondents in addition to converting the arguments of the learned counsel for the petitioners, has raised two preliminary objections firstly that at the time of filing of this Constitutional petition Fazal Hussain respondent No,2 was dead and therefore, this petition being against the dead person was a nullity, and secondly that as Zafar Hussain petitioner had died during the pendency of the present petition, his legal representatives should have served a notice under section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959 on the respondents.
10. The first contention of the learned counsel for the petitioners has force in it. While deciding the issues as to the existence of relationship of landlord and tenant between the parties, both the Rent Controller and as also the Additional District Judge in the earlier round of litigation had held that at the time of taking over of the property by the Chief Administrator of Auqaf the petitioner was in control and management of the same of which he was deprived by the notification issued under section 7 of the Wafq Properties Ordinance, 1961. Subsequently upon the rescision of this notification, the property stood restored to the petitioner. The rescision had the effect of wiping away and effacing the effect of that notification. This restoration could not be equated with transfer of ownership within the meaning of section 13-A of the Urban Rent Restriction Ordinance, 1959. The transfer contemplated by section 13-A of the Urban Rent Restriction Ordinance, is the one where rights for are the first time created or conferred upon another person by virtue of an alienation or inheritance. In the present case, no new rights were created in favour of the petitioner by the rescision of the notification taking over the property which revived the pre-existing rights.
Section 13-A of the Ordinance had as such no applicability.
11. The second contention of the learned counsel for the petitioners is equally forceful and is based upon the high authority of the Supreme Court in the precedents cited by him, wherein it has been held that ejectment petition itself is to be regarded as a notice under section 13-A of the Ordinance and if even after the filing of petition of ejectment no rent is paid to the landlord, the tenant cannot plead want of notice under section 13--A of the Ordinance, as a defence.
12.
12. Now reverting to the preliminary objections of the learned counsel for the respondents, it is correct that when the constitutional petition was filed, Fazal Hussain respondent No,2 was already dead. However on an application filed by the petitioner his legal representatives were brought on the record, vide order passed on C.M. No,1459 of 1988 on 5th of June, 1988. Consequently the defect in constitution of the petition stood rectified from that date. As there is no limitation prescribed for filing a constitutional petition, even if it is considered to have been filed on 5th of June, 1988, it would not make any substantial difference.
13. So far as the other objection of the learned counsel is concerned suffice it to say that the notice issued in this petition by this Court can be regarded as a sufficient compliance of the provisions of section 13-A of the Punjab Urban Rent Restriction Ordinance, as held by the Supreme Court in Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others 1986 SCMR 751 and Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24. Even otherwise the dispute here is whether the respondent had committed default in payment of rent for the period when the petitioner Zafar Hussain was alive. The question of service or non-service under section 13-A by the present petitioners is, therefore, of no consequence.
As a result of what has been stated above this petition is accepted. The judgment of the Additional District Judge dated 20th of October, 1986 is declared to be without lawful authority and of no legal effect as the Additional District Judge had not recorded finding on issue No,2. The appeal filed by the respondents is remanded to him for decision on this issue. There shall be no order as to costs.