Ch. MUHAMMAD SAEED vs ABDUL MAJID ETC.

1. ' MUHAMMAD GUL, J.-This leave petition arises out of proceedings for the ejectment of the petitioner herein from shop No, 248-B-V, Pul Bazar, Sahiwal.

2. ' Abdul Majid respondent No, 1 herein is transferee of the shop under Act XXVIII of 1958 and the petitioner is in its possession since before the transfer in favour of the respondent. The latter applied for the petitioner's ejectment on the ground of default in the payment of rent. Certain preliminary objections raised by the petitioner against the competency of the application were overruled by the Rent Controller on 6-1-1964 and by a subsequent order dated 30-4-1971 he directed the petitioner to deposit arrears of rent from 6-1-1965 to 30-6-1967. The petitioner instead of making the deposit filed an appeal which was dismissed by the learned District Judge on 9-12- 1971. By the same order, the learned District Judge struck off the petitioner's defence, purporting to be under section 13(6) of the 1959 Ordinance, because of the petitioner's failure in the meantime, to deposit arrears of rent as directed by the Rent Controller. The petitioner filed further appeal which was partially accepted by the learned Chief Justice by order dated 14-1-1974. The learned Chief Justice took the view that the District Judge was not competent to strike off the petitioner's defence for his failure to deposit the rent within the prescribed time and that for that purpose; the case ought to have been remitted to the Rent Controller, who alone is empowered by the statute for the relevant purpose. Accordingly, the learned Chief Justice remitted the case to the Rent Controller for an appropriate order under section 13(6) of the Ordinance, holding at the same time, that the petitioner's appeal before the learned District Judge was otherwise rightly dismissed.

3. ' The petitioner now seeks leave to appeal against the order of the earned Chief Justice.

4. ' Learned counsel for the petitioner submitted that in the proceedings before the Rent Controller and the Appellate Authority, the petitioner's aim defense was that respondent No, 1 was a benamidar for the petitioners father Ch. Muhammad Amin who was the real transferee of the shop.

5. It appears that before the Rent Controller, the petitioner had taken the position that his father Ch. Muhammad Amin was the allotted of the shop in question and subsequently, he purchased it though sensibly in the name of the respondent to fore-stall any possible objection against multiple allotments of evacuee properties in favour of e petitioner's father. The petitioner's father having died since, it is Ileged that the petitioner alongwith his sisters and brothers had become the owners of the shop in dispute. It was, however, not denied that respondent No, I had after the issuance of P.

6. T. O. And P. T. D. In his avour had duly issued notice to the petitioner under section 30 which instituted him a statutory tenant under the respondent by operation of section 30 of Act XXVIII of 1958. The learned Chief Justice, however, went on to observe that the Rent Controller ought to have put the matter in issue, and given a finding on it though any such finding by him could not have been res judicata because of the special nature of the jurisdiction of the Rent Controller under the Ordinance. Nevertheless, the learned Chief Justice examined the evidence produced before the Rent Controller by the petitioner in support of his plea that the respondent was a mere benamidar of the shop and came to the conclusion that respondent No, 1 was the real transferee of the shop and not a benamidar. For that conclusion, the learned Chief Justice strongly relied upon the earlier suit brought by the petitioner against respondent No, 1, for the specific performance of agreement of sale of the shop in dispute by respondent No, 1 to the petitioner. This was dismissed. This was utterly inconsistent with the petitioner's plea in the present litigation.

7. ' The petitioner's learned counsel submitted that the Rent Controller's order dated 30.4-1971 in so far as it required the petitioner to deposit arrears of rent for a period exceeding three years next prior to the date of the order had no warrant in law and, therefore, the petitioner was not bound to comply with it. The argument was that the Rent Controlle could have directed the deposit of arrears of rent for three years beginning from the date of the order backwards and not from the date of the institution of proceedings for ejectment. As rightly pointed out A by the learned Chief Justice this plea is devoid of substance, in view o this Court's decision in Ashfagur Rahman v.

8. Muhammad gm: (1). It was also urged that the Rent Controller could have ordered the deposit of the arrears of rent on the basis of assessment current at the time of the transfer of the shop or the date of service of statutory notice unde B section 30 and not on the basis of assessment in force at the time of makin the order for the deposit of rent. This plea is also untenable in view of this Court's decision in Ahmad Khan and another v. Mst. Sakin Bibi (2).

9. ' There is no merit in this petition. It is, accordingly, dismissed.

(1) PLD 1968 SC 230 (2) 1969 SCM R 435