INAYATULLAH Versus RENT CONTROLLER, RAWALPINDI

ORDER

1. MUHAMMAD HALEEM, ACTG. C. J.‑‑‑ The petitioner seeks leave to appeal against the order of the Lahore High Court, Rawalpindi Bench, by which Petition No. 93 of 1983 was dismissed in limine.

2. It appears that the petitioner was contesting his right to the transfer of a residential house comprised in evacuee property bearing No. Q/43, Chowk Imambara, Rawalpindi, but was not successful as it was transferred to Haji Shaikh Abdullah and through him to respondents Nos. 3 to 17 by reason of association deed. The appeal before the Additional Settlement Commissioner succeeded and the case was remanded for fresh decision. Against this order a revision was filed before the Settlement Commissioner, but as the respondents did not succeed they filed a writ petition and succeeded with the result that the remand order was set aside. This order was upheld by the Supreme Court as leave was refused to the petitioner. A review petition against this order also failed.

3. In this background, the respondents sued to evict the petitioner. The petitioner resisted his eviction on the ground that there did not exist the relationship of landlord and tenant. In this context, it was further averred that the petitioner had not paid the rent as he did not recognised the respondents as the owners of the property.

4. It will be of interest to notice that despite the order of this Court. refusing leave, the special attorney when examined by the trial Court denied the title of the respondents and so also conceded the non‑payment of rent. This plea did not find favour with the trial Court, which ordered his eviction by its order, dated the 2nd of January, 1983. The appeal before the District Judge also failed. Against this order the writ petition was dismissed as aforementioned.

5. Before the High Court it was urged that the trial Court having held that the relationship of landlord and tenant existed it should have further given an opportunity to the petitioner to contest the quantum of rent due and payable under section 13(8) of the Punjab Urban Rent Restriction Ordinance, 1959, and that opportunity not having been given the order was bad in law. The High Court rejected this contention holding:

6. "He, however, chose to deny relationship of landlord and tenant, which was, on the face of it mala fide and contumacious and was apparently motivated by a desire to continue to remain in possession of the house for as long as it was possible. Learned counsel concedes that no rent was ever paid. The petitioner could have paid rent in protest but as things stand he did not pay any rent. This non‑payment of rent was also, therefore, contumacious. The learned counsel concedes that in written statement point was not raised that non‑payment of rent was not deliberate. In my opinion, therefore, there was no controversy left to be resolved and neither any order under section 13(6) of Punjab Rent Restriction Ordinance, 1959 was necessary to be made nor affording of an opportunity of hearing to show that non‑payment of rent was not deliberate and willful was necessary and the petitioner had rightly been ejected immediately after the finding that there was a relationship of landlord and tenant between parties. la this connection case of Abdul Khaliq Qureshi v. Saeed Hassan Shah 1979 C L C 118 and case of Aman Ullah Khan v. Chotey Khan 1978 S C M R 14 refer."

7. Before us this very contention is urged and so also that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was served on the petitioner, and, therefore, the rent was not due and payable. As for the first contention, we are of the view that the finding of the High Court in regard to it is unexceptionable. This Court having earlier refused leave to the petitioner, the order of the High Court remained in the field whereby the transfer in favour of the respondents 3 to 17 was restored. In this view of the matter, there is no question of any denial of relationship of landlord and tenant, and the Court having once held that such relationship existed, there was no reason to examine the question of default when the petitioner himself admitted that he had not paid the rent. Accordingly, if the Court straightaway ordered his eviction, its order cannot be said to be bad in law as there was nothing further for the Court to do in these proceedings when the default itself was admitted. As for the notice, it was necessary to be given after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Nonetheless the Courts have concurrently held that such a notice was given.

8. In this view of the matter, we find no substance in this petition, which is dismissed.

9. S.Q. Petition dismissed.