ZAFFAR HUSSAIN MIRZA, J.---This is a certificated Letters Patent Appeal arising out of judgment dated 30-1-68 by a learned Single Judge of this Court (Noorul Arfin, J. As he then was) in IInd Appeal No. 71 of 1966 whereby the appeal of the respondent was accepted and orders of his ejectment were set aside.
2. This appeal raises an interesting question of law as to the interpre--tation of section 30 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act).
The question is whether a statutory tenant who once complies with a notice of demand for payment of amount of rent or arrears of rent due by paying the same within the prescribed period of these months, a fresh notice of demand would be necessary in law for the ejectment of such a tenant. The background facts of this case are that the disputed premises were transferred to the appellant on 27-3-62 by the Settlement Authorities in open auction. The appellant then served a notice of transfer as provided by proviso (b) of subsection (1) of section 30 of the Act. He also sent a notice of demand for the arrears of rent on 1-12-62 under clause (i) of subsection (3) of the said section. It is common ground that arrears were cleared and duly paid up to 31-12-62. However, the respondent fell in arrears from 1-1-63 to 31-10-63 and therefore, the appellant took out distress warrant proceedings against him for recovery of arrears. The respondent made a default in the payment of rents once again from 1-2-65 to 30-6-65. As a result the appellant filed ejectment application against the respondent. The learned Rent Controller by his order dated 6-12-64, however, dismissed the ejectment application on the ground that the appellant had failed to serve further notice of demand on the respondent for arrears of rent before filing the ejectment application.
3. The appellant appealed against this decision which came before the learned Additional District Judge and Appellate Authority, Karachi. The learned Additional District Judge did not agree with the view of the learned Rent Controller and relying on the observations of their Lordships of the Supreme Court in the case of E. A. Evans v. Muhammad Ashraf (PLD1964SC536) held that second notice of demand was not contemplated by law and on this view reversed the decision of the Rent Controller and directed the respondent to hand over the possession of the premises to the appellant. The respondent then came up in IInd Appeal before the High Court which was disposed of by the impugned judgment. The learned Single Judge accepted the view of the Rent Controller and set aside the judgment of the learned Additional District Judge. Subsequently by his order dated 20-3-68 the learned Single Judge certified this case for appeal under clause I9 of the Letters.
Patent.
4. We have heard Mr. Ahmedullah Farooqi for the appellant but the respondent remained absent.
5. It would be advantageous to set out the relevant provisions of section 30 of the Act which are as under :- "(1) Where any person is in possession of any evacuee house, or shop, or has been declared on or before the 20th day of December 1958, by a Custodian to have tenancy rights from a date prior to the 14th of August 1947, in any industrial concern, Cinema house or Printing Press which is transferred to any other person under the provisions of this Act, then, notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer; Provided that;----
(a) it shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the Municipality or local authority, as the case may be, for other properties in the locality generally ; and
(b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years and from the industrial concern, cinema house or printing press for a period of 3 years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due).
(2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1) the period mentioned in that Proviso shall count from the date of receipt of such notice by the tenant.
(3) Nothing in proviso (b) to subsection (I) shall apply to a tenant :-
(i) who has not within 3 months from the date of receipt of a notice of demand sent to him by the transferee by Registered Post (acknowledg--ment due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer ; or
(ii) who after the transfer, has sublet or otherwise parted with the possession or the house of shop, industrial concern, cinema house or printing press, or any part thereof, or has committed acts which are destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop, who in any urban area within the same town or city, owns a house or shop, as the case may be..
(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 subsection (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." .
6. Mr. Ahmedullah Farooqi contended that the protection against ejectment extended to a statutory tenant under section 30 is lost, in terms of subsection (3) upon the tenant committing default in the payment of rent due for any period after the transfer and there is no warrant for the proposition that successive notices of demand are required to be served upon the tenant whenever he commits default subsequent to his paying the arrears of rent within the prescribed period after the initial notice of demand. He strongly relied upon the underlined* portion of the following observations of their Lordships at page 548 in the case of E. A. Evans referred to above, which are as under :---- "Even the circumstances in which the tenant would be deprived of its protection have been specified and not left in doubt. Furthermore, subsection (3) firstly provides that a tenant must pay or tender rent payable under the said section to the transferee within 3 months from the date or receipt of a notice of demand sent to him again "by Re--gistered Post (acknowledgment due)".
Secondly, since the protection is a personal protection, the tenant must not sublet or otherwise part with the possession of the promises and thirdly, he must not commit acts of waste and must not be in possession of similar premises in the same town or city. It is thus clear from the language of the section that that notices contemplated thereunder must be of two kinds ; (1) giving intimation of the transfer and (ii) containing a demand. It is, of course, possible that both these notices may be combined into one, as, for example the same notice while giving intimation of the transfer might also demand the rent and/or arrears of rent, if any, due for any period after the transfer. But where no such combined notice has been issued, it would, in order to take a tenant out of the protection from eviction granted to him by proviso (b), be necessary to serve upon him a second notice of demand as contemplated by clause (i) of subsection (3). It may not be necessary to serve such a notice of demand each time there is a default but at any rate, at least one notice of demand has of necessity to be served to deprive the tenant of the protection. One notice of demand is at least necessary for the protection to be lost and that too from the expiry of period of 3 months from the date of receipt of such notice of demand. Unless such a notice of demand is given, the com-- mencement of the period of 3 months cannot be fixed."
We were also referred to the case of Saeed Ahmed v. Zait-un-Nissa (PLD 1967 Lah. 196) in which A.
R. Shaikh, J. Noticed the aforesaid observations of their Lordships and repelled the contention that the opinion of their Lordships was tentative in nature. In support of this contention, support was brought before his Lordships from A. M. Khan Laghari v. Government of Pakistan (P ,L D 1965 Lah. 214) in which a D. B. Of the West Pakistan High Court, Lahore Bench had, expressed the view that where the Supreme Court makes remarks which are in the nature of the tentative opinion, the High Court would be free to examine the question independently, A. R. Shaikh, J. However, came to the conclusion that the dictum laid down by their Lordships of the Supreme Court in Evans' case was binding on him and held that no second notice of demand under section 30 of the Act was necessary. We were also referred to Jaindo Khan v. Muhammad Ishaq (PLD 1964 Kar. 61). But the facts of that case are distinguishable inasmuch as the tenant in this case had committed default in payment of arrears of rent within the prescribed time of 3 months from the date of statutory notice.
7. Learned counsel very fairly invited our attention to some decisions in which view has been taken that after the tenant complies with the initial notice under section 30, in case of any subsequent default a fresh notice of demand would be necessary to deprive him of the protection against eviction. In Abdul Aziz v. West Pakistan Publishing Company (Private) Limited (PLD 1965 Lah. 82) a Division Bench expressed the view that if subsequent to the tenant having paid arrears of rent after the initial notice, a default is committed by him, the landlord again must give him a notice because if he does not do so and files a petition, the petition is liable to be dismissed on the ground of lack of jurisdiction for the reason that the Rent Controller under the ordinary law can assume jurisdiction in such cases only if it is proved that the provisions of section 30 (3) (i) have been contravened. It was observed that 'such notice is necessary to give the tenant an opportunity to remedy the default which he would be within his right to do within 3 months after the receipt of the registered notice. In Muhammad Rizwan v. Ashiq A.I (PLD 1966 Quetta 11) Noorul Arfin, J. (as he then was) held that the statutory protection is lost only if the tenant fails to pay the amount of rent within 3 months from the date of notice of demand sent by the transferee. As observed by the learned Single Judge in his impugned judgment this decision was noted with approval in a- D. B. Case reported as Muhammad Amin v. Jamshed A.I (PLD 1967 Lah. 856) wherein Anwarul Haq, J. (as he then was) made the following significant observations; "Therefore, before proceeding under the Ordinance or to make any order under section 13, thereof, it will first have to be determined whether there is default on the tenant's part to pay the rent within the period prescribed by clause (i) of subsection (2) of section 30. A finding to this effect is the condition precedent to confer jurisdiction on the Controller to proceed under the Ordinance against tenants and occupants of properties under the Act."
8. No other decision of the High Court or the Supreme Court was brought to our notice having a bearing on the question of law raised in this appeal. The first question that has received my anxious consideration is whether the observations cited in the foregoing part of this judgment from the case of E. A. Evans are binding upon us or we are free to interpret the provisions of section 30. Of course, even an obiter dicta of the Supreme Court on a question of law would be the law declared and would bind the High Court. However, on a closer scrutiny of the judgment and the observations relied upon by the learned counsel, I have come to the conclusion that their Lordships of the Supreme Court did not express final opinion on the precise question which is at issue in this appeal.
In the first place in the case before their Lordships no notice at all under section 30 was served by the transferee on the statutory tenant and therefore, the question of a subsequent notice of demand did not arise in that case. This, however, alone is not sufficient to detract from the binding force of the dictum laid down by their Lordships. But a careful reading of the observation makes it quite clear to my mind that the opinion expressed by their Lordships was explicitly tentative and the true interpretation of clause (i) of subsection (3) of section 30 of the Act was left open. This is clear from the use of the word "may" and the words "at any rate, at least one notice of demand" in the underlined portion of the observations. At the end of the quotation once again their Lordships have used the words "one notice of demand is at least necessary for the protection to be lost". The word "may" imposts possibility but cannot be deemed to express absolute opinion. Similarly "at least" means at all events or even if a wider statement is disputable or it means at the lowest computation. Having regard to the language used by their Lordships the clear import of the observations is that their Lordships did not rule out the possibility of the interpretation to the effect that more than one notice of demand may be necessary in case of successive defaults by statutory tenant. In this view of the matter I regret my inability to agree with the view taken by A. R.
Shaikh, J., in Saeed Ahmed's case regarding the observations of their Lordships. As a consequence, in my opinion, it is open to us to construe the effect of section 30, subsection (3) of the Act.
9. Now the six years protection extended by section 30 to a statutory tenant against the eviction ceases to be operative on expiry of the aforesaid period or on the contravention of any of the provisions of subsection (3) which ever is earlier vide subsection (4) of section 30. Upon the happening of any of the aforesaid events the relationship of landlord and tenant between the transferee and the occupant is to be regulated by the Urban Rent Restriction Ordinance. As held in the decisions cited above, the Rent Controller would, therefore, have jurisdiction to entertain an application for ejectment under section 13 of the Rent Restriction Ordinance in case of alleged default, only if it is proved that the tenant has not within 3 months from the date of receipt of a notice of demand sent to him by the transferee by registered post, paid or tendered the amount of rent or arrears of rent for any period after the transfer. As held by his Lordship Anwarul Haq, J. This is a condition precedent for assumption of jurisdiction by the Rent Controller. In the present case clearly no such default was committed by the respondent in so far as admittedly he had paid the rent arrears within the prescribed time of 3 months. Unless, therefore, a fresh notice of demand was served by the landlord and default was committed by the respondent in the payment of arrears within 3 months from the date of receipt of such notice, obviously the condition precedent for bringing the case within the ambit of normal law could not be fulfilled. In my opinion the sine qua non for attracting the general law is the contravention of any of the provisions of subsection (3). In the present case no such contravention on the part of the respondent has been proved by the appellant. All that has been found is that the respondent has committed default in the payment of rent in terms of the general law, namely, the Urban Rent Restriction Ordinance in failing to pay the rent for more than 2 months but the general law cannot be invoked unless the condition precedent prescribed by section 30 (3) of the Act is fulfilled. I am therefore, in respectful agreement with the view taken in the cases of Muhammad Amin and Abdul Aziz referred to above and agree with the learned Single Judge that the respondent had not lost the protection against eviction for a period of six years from the date of notice intimating transfer viz. 21-6-1962.
10. For the foregoing reasons, I would dismiss this appeal with no order as to costs.