MUHAMMAD YASIN Versus FATEH MUHAMMAD

1. The facts leading to this second appeal under section 15(4) of the West ‑Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordi nance) are that the respondent filed an application for eviction of the appellant tenant on the various grounds including non‑payment of rent. The appellant tenant resisted this application and denied the relationship of landlord and tenant between him and the respondent. The Rent Controller, however, on 3‑1‑1967, passed an order under section 13(6) of the Ordinance fixing the tentative rent. The appellant tenant went in appeal which was allowed and the case was remanded to the Rent Controller with the direction to frame preliminary issue whether there existed relationship of landlord and tenant between the parties. Accordingly, the Rent Controller framed the preliminary issue and gave a finding that the relationship of landlord and tenant did exist between the parties. No appeal was filed against this finding which became final. Thereafter, respondent‑landlord filed another application for passing order under section 13(6) of the Ordinance for deposit of arrears and future rent by the tenant. Simultaneously, appellant‑tenant filed an application for framing yet another preliminary issue on the question whether statutory notice under section 30 of the Displaced Persons (Compensation and Rehabili tation) Act had been served by the respondent on the appellant‑tenant. The contention of the appellant before the Rent Controller was that no notice under section 30 of the Act had been served on him and as such the very application was not maintainable in law. The learned Rent Controller framed the preliminary issue and gave a finding that notice under section 30 of tire Act had not been served by the respondent landlord on the appellant‑tenant and accordingly dismissed the application for eviction. The respondent‑landlord went in appeal. The learned District Judge in appeal reversed the finding of the Rent Controller on the issue of notice and held that two notices one dated 3‑2‑1966 (Exh. 26) and the other dated 20‑4‑1961 (Exh. 29) under section 30 of the Act bad been served by the respondent on the appellant‑tenant and is support relied upon the reply notice dated 9‑5‑1966 given by the appellant‑tenant to the respondent‑landlord wherein the former acknowledged to have received the notice of the landlord. The relevant observations by the learned District Judge may be reproduced as under:‑

2. "The two P. T. Os. (Exhs. 23 and 24) of the appellants are on record. The disputed house was transferred to them by the Settlement authorities. The two notices given by the appellants to the respondent. are also on record as Exits. 26 and 29. No legal flaw has been pointed out in any one of them. There is also reply of the opponent on record as Exh.

27. This reply is dated 9‑5‑66. It is admitted by the respondent in this reply that the notice of the appellants dated 4‑5‑66 was received by him. It is further admitted therein that the appellants had wrongly changed the name of the building in question as "Kashana‑e‑Haider". All that the opponent has contested in his reply is that the notice was ambiguous and illegal. How was it ambiguous or illegal is not explained by him either in the reply or by any other evidence. The reply of the opponent is a clear proof that the notice under section 30, Displaced Persons Act was served on him. If the learned Controller had carefully gone through the record he was bound to lay hands on this document and would have come to a different conclusion. It is therefore, proved from the above reply that the notice under section 30, Displaced Persons Act was served on the respondent and his contention is false."

3. Having thus held that notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act had been served, he allowed the appeal. Having done . that, be, however, proceeded further to hold that as the appellant‑tenant had set up a false plea regarding notice and denied the tenancy, he was liable to be ejected forthwith and accordingly directed the appellant‑tenant to hand over the vacant possession of the premises in. question to the respondent‑landlord within one month. The appellant‑tenant has now come in this second appeal.

4. The first contention raised by Mr. Sabghtullah, the learned counsel for the appellant, was that the learned District Judge having reversed the finding, in appeal acted beyond his functions and authority in ordering eviction of the appellant‑tenant inasmuch as the only question before him in appeal was whether the eviction application was maintainable which had to be answered by him by giving a finding whether notice under section 30 of the Act had or had not been served by the respondent‑landlord on the appellant‑tenant. Having held that the notice had been in fact served by the respondent on the appellant‑tenant with the effect that the application filed by the respondent became maintainable, he ought to have remanded the case to the Rent Controller to decide it on merits and it was not open to him to direct the eviction of the appellant‑tenant on the grounds that the latter had raised false plea of notice and denied tenancy, as no such issue was involved in the appeal before him and also no opportunity was given to the appellant‑tenant to put forth his case on the point and also because o pass such an order was exclusively the function of the Rent Controller who bad yet not even applied his mind to this question. In support of his contention, the learned counsel relied upon P L D 1974 Lah. 446.

5. His next contention was that even the finding by the learned District Judge that notice under section 30 had been served was erroneous in view of the fact that the reply notice relied upon by the learned District Judge referred to a notice dated 4‑5‑1966 of the respondent‑landlord whereas the notice claimed to have been given by the respondent‑landlord was dated 3‑2‑1966 which had not been at; all received by the appellant‑tenant so that, even if the reply notice by the appellant‑tenant was taken into consideration, it could be treated as reply to the notice dated 4‑5‑1966 of the respondent and on ;hat basis the main application filed on 4‑7‑1966 was not maintainable having been filed less than three months of the notice. The learned counsel next contended that while the application was filed on 4‑7‑1966, the order passed by the Additional Settlement Commissioner transferring the premises in question to the respondent‑landlord was passed on 12‑12‑1966 so that at the time the eviction application was filed the respondent‑landlord had no title to the premises in question and hence the application was not maintainable on that ground also.

6. Mr. Khaliq A. Niazy, the learned counsel for the respondent, on the other hand contended that the learned District Judge was perfectly within his jurisdiction in ordering eviction of the appellant‑tenant forthwith on the stated grounds instead of remanding the case. as the appellant‑ tenant had throughout denied the title of the respondent‑landlord and had admittedly paid no rent whatsoever so that no further purpose could have been served to remanding the case to the Rent Controller. In support he placed reliance on the case of the High Court reported as Nisar Ahmed v. Nazar Muhammad (P L D 1974 Lah. 489).

7. Mr. Niazy next contended that the finding of the learned District Judge that the respondents‑landlord had served two notices Exhs. 26 and 29 on the appellant‑tenant was valid and supported by the record in that the nothe dated 26‑4‑1961 (Exh. 29) was produced by the respondent‑landlord Fateh Muhammad in his deposition and the same was admitted in evidence and exhibited without any objection being raised by the appellant‑tenant and was also not challenged in the cross‑examination by the appellant. Similarly the notice dated 3‑2‑1966 (Exh. 26) was also received by the appellant‑tenant, although the appellant ascribed to it a different date.

8. Whether or not the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was served on the appellant‑tenant is essentially a question of fact. The learned District Judge has given his finding that two notices (Exhs. 26 and 29) had been served on the appellant tenant. Appellant Yasin Ali in his deposition has categorically admitted that he had received notice dated 20‑4‑1961 given by respondent Fateh Muhammad. Reply notice (Exh. 27) admittedly sent by the appellant tenant also shows that he had received another notice although he claims that it was dated 20‑4‑1966 and not 3‑2‑1966 as claimed by the respondents landlords The argument of the learned counsel for the appellant‑tenant that this reply notice referred to the notice of 26‑4‑1966 sent by the respon dent‑landlord and not in reply to the notice dated 3‑2‑1966 (Exh. 26) is with out substance. The reply notice (Exh. 27) by the appellant‑tenant indeed shows that they had received a notice and since no notice other than that of 3‑2‑1966 is claimed to have been sent by the respondent‑landlord to the appellant‑tenant, it can be safely accepted that the reply notice (Exh. 27) was in response to the notice dated 3‑2‑1966 by the respondent‑landlord. To remove any doubt, the learned counsel for the appellant‑tenant was called upon to substantiate his assertions that their reply notice was in response to the notice dated 26‑4‑1966 and not to the one dated 3‑2‑1966 by producing the said notice but he was unable to produce it, although, be claimed to know even the date on which he had received that notice. Thus, two notices dated 26‑4‑61 and 3‑2‑66 having been found to have been served on the appellants, the learned District Judge was perfectly justified in reversing the finding of the Rent Controller and the same does not call for interference in this second appeal.

9. As to the contention of the notices being invalid on the ground that notices were given by the respondents‑landlord before the premises in question were transferred to them by the order of the Additional Settlement Com missioner on 12‑12‑1966, 1 find no substance in it either. As rightly argued by Mr. Niazy, that order was passed on the application by respondent No. 2 against respondent No. 1 regarding inter se dispute between them as to the use of cellar and the appellant had no concern with that inter se dispute. In so far as the appellant‑tenant was concerned his application for transfer of the disputed premises had been rejected by the Additional Settlement Com missioner as far back as 19‑12‑1961 for the reason that the premises in question went with the building. Indeed, the learned counsel for the appellant conceded that his claim to the transfer of the disputed premises became a closed chapter after 19‑12.61. That being so, he could not attack the validity of the notices on the misconceived ground. Also, this question was never raised before the Courts below and it being a mixed question of law and fact, it cannot be raised in this second appeal. Upshot of the above discussion is that the learned District Judge rightly came to the finding that the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act bad been duly served on the appellant.

10. The contention of the learned counsel for the appellant that the learned District Judge after coming to the conclusion that notice under section 30 of the Act had been served on the appellant ought to have remanded the case and should not have proceeded to order ejectment of the appellant forthwith, is, however, not without force. The learned Rent Controller bad held the application filed by the respondents to be not maintainable in law on the ground that statutory notice under section 30 of the Act had not been served and for that reason did' bat go further to examine and decide the application on merits. Now that the learned District Judge found that the notice had been served, it was only appropriate that lie ought to have remanded the case to the Rent Controller to decide the application on merits and should not have ordered ejectment forthwith on the grounds that the appellant‑tenant had raised false plea of notice and denied tenancy, as this was neither the issue before him nor was it his function. It was the function of the learned Rent Controller who had to perform it by exercising the jurisdiction vested in him.

11. It is well established that when a tribunal is vested with a jurisdiction, howl, low it may be, it is that tribunal which has to exercise its jurisdiction and any exercise of that jurisdiction by a higher tribunal without allowing for former to exercise it, will be usurping the jurisdiction of the lower tribunal which is l not permissible in law. The learned counsel for the appellant has very rightly referred to the Lahore case reported as Muhammad Hussain v. Muhammad Bashir and others (P L D 1974 Lah. 446), in which also the Rent Controller had dismissed the application holding that there was no relationship of landlord and tenant between the parties but the appellate authority reversed the finding and went further to order eviction of the tenant forthwith. In second appeal, it was held by his Lordship Sardar Muhammad Iqbal, C. J. that the appellate authority was not right in directing eviction of the tenant forthwith and ought to have remanded the case to the learned Rent Controller to decide it on merits. In so holding, Sardar Muhammad Iqbal, C. J. relying on the Supreme Court case reported as Abdul Ghafoor v. Ahmed Kunhi (P L D 1969 S C 424) observed as under:

12. "The Additional District Judge set aside the finding of the Rent Con troller, and held that the relationship of landlord and tenant existed. It necessitated the remand of the case to the Rent Controller to pass the order under section 13(6) and to try the case on merits. But he instead passed the following order:‑

13. The aforementioned three respondents, namely, Muhammad Hussain, Khushi Muhammad and Muhammad Din will put the petitioner in possession of the rooms in their possession within one month of the date of this order, failing which they will be ejected forcibly.

14. There was no justification in law for him to have ordered the ejectment of the appellants. The petitions for ejectment could be decided by the Rent Controller, who was required to pass an order in the first instance under subsection (6) of section 13 directing the petitioners to pay the arrears of rent and the future rent and then to decide the case on merits. In Abdul Ghafoor v. Ahmed Kunhi P L D 1969 S C 424, it was observed by their Lordships of the Supreme Court that such an order could be passed only by the original Court. The order of the Additional District Judge being erroneous in this respect has to be set aside."

15. I fully agree with the view expressed by the learned Chief Justice in the above reported case and held that after having reversed the finding, effect of which was that the main application before the learned Rent Controller became maintainable, he ought to have remanded the case to the Rent Con troller to decide it on merits according to law. Before parting with the case, I may refer to the case reported as Nisar Ahmed v. Nazar Mohammad (P L D 1974 Lah. 489) relied upon by Mr. Niazy in support of his contention that the ejectment of the appellant forthwith could be rightly ordered by the learned District Judge in view of the fact that the appellant admittedly had paid no rent whatsoever and had denied the title of the respondents‑landlords. The reported case no doubt lays down that the Rent Controller after deciding the preliminary issue regarding existence of relationship of landlord and tenant in favour of land lord can forthwith order ejectment of the tenant if he has admittedly paid no rent whatsoever to the landlord but, that decision is not applicable to the facts of this case in which the impugned order directing ejectment of the appellant has been passed by the appellate authority and not by the Rent Controller. I wish to make it clear, however, that I should not be under stood to mean that I am in any manner, directly or indirectly, accepting the view taken by the learned Single Judge in the above‑quoted Lahore case (P L D 1974 Lah. 489). All I mean to say is that the above case is not applicable to the facts of the case in hand and therefore, I do not find myself called upon to deal with it in this case. More so, when the case decided by the learned Chief Justice of Lahore High Court reported in P L D 1974 Lah. 446 provides the necessary answer.

16. In the result, while maintaining the finding of the learned District Judge on the issue of service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act on the appellant, I set aside the impugned order in so far as it orders ejectment of the appellant forthwith and remand the case to the learned Rent Controller to decide the application on merits on the basis that the application filed before him by the respondents/ landlords was maintainable in law.

17. This appeal is partly allowed. Parties to bear their own costs.

18. K. B. A Appeal partly accepted.