Major (Retd.) MUHAMMAD YOUSAF vs MEHRAJ UD DIN And Other

ORDER

MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 27-2-1984 of the Lahore High Court; whereby a Constitutional petition arising out of a matter dealt under the Rent Restriction Law, was dismissed.

2. The petitioner's ejectment application against the respondent on ground of default in payment of rent was allowed ex parte on 21-12-1974 and the latter was dispossessed on 4-2-1975.

Respondent's application for setting aside ex parte order succeeded on 11-2-1978. The case was heard on merits and the learned Rent Controller dismissed the petitioners application on the negative finding on the solitary issue on merits; relationship of landlord and tenant. The petitioner's appeal was also dismissed on 21-6-1983. In the meanwhile the possession remained with the petitioner. However, the respondent's restoration application succeeded on 14-2-1984 against which the petitioner's appeal was dismissed. Then he filed a Constitutional petition against orders, dated 21-6-1983 and 19-2-1984 which having been dismissed by the High Court on 27-2-1984 it led to this petition for leave to appeal.

3. After hearing both the sides, we have converted the petition into appeal and dispose it of accordingly.

4. The learned counsel for the respondent has candidly stated that he does not claim the ownership of the property. Nor the ownership thereof by the appellant is denied. The serious dispute however is on two-fold controversy; whether the appellant was required by law (under section 13-A of the West Pakistan Rent Restriction Ordinance. 1959) to serve a notice on the respondents before seeking eviction on ground of default; and, whether non-service of notice under section 13-A., would amount to negation of the relationship of landlord and tenant.

5. On the first question proper evidence leading to presumption was adduced that a notice under section 13-A was sent to the respondents who refused to receive the same. Instead of raising rebuttable proper presumptions under the law regarding delivery of such notice, it has been found that the appellant failed to establish delivery of notice by production of the postman. We would leave this question at that because rent has not been tendered or paid even after the institution of the application which for the present purpose amounts to service of notice. See Syed Azhar Imam Rizvi v: Mst. Salama Khatoon 1985 SCMR 24 and Muhammad Siddique v. Mst. Sharifan and another Law Notes 1969 SC 78.

6. On the second question also the respondents have no case. It is neither supported by statute nor any principle of law that if a notice under section 13-A of the Ordinance is not served that would amount to absence of relationship of landlord and tenant. The analogy of case-law under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is not attracted here.

Thus, the finding on issue of relationship has to be reversed and we do accordingly.

7. That being so, rent having admittedly not been paid after the institution of the application for eviction which has also been treated as notice under section 13-A the respondents were liable to be evicted.

We order accordingly.

8. Regarding laches it suffices to observe that the appellant continued litigating for retaining the possession. And that being so a part of cause of action had arisen within few days of the filing of writ petition. In the circumstances of the case, it did not suffer from laches.

9. This appeal thus succeeds and the impugned orders are set aside.