ABDUL KARIM vs MUHAMMAD IBRAHIM

1. MUHAMMAD GUL, J.-This petition is from the judgment of the High Court dated 7-3-1975 dismissing a second appeal by the petitioner herein under section 15 of. W. P. Ordinance VI of 1959.

2. Respondent 1 herein is transferee of house No. Y/713 Rawalpindi, under an auction sale held by the Settlement Department under Act 28 of 1958. A P.T.O. Having issued in his favour, he gave notice under section 30 of the Act to the petitioner herein, an occupant in the horse, for payment of rent.

3. The petitioner having failed to pay the rent, the respondent applied for his ejectment under section 13 of the Ordinance. The petitioner denied relationship of landlord and tenant and characterised the auction sale of the house in favour of the respondent void ab initio, because ho himself being a displaced person from the State of Jammu and Kashmir and occupant in the house, it was not available for transfer. The learned Rent Controller found that with the issuance of notice under section 30 of the Ordinance,statutorytenancy was brought into existence and the petitioner was liable to pay rent to the respondent. Accordingly, the Rent Controller ordered the petitioner on 17- 10-1964 under section 13(6) of the Ordinance to pay the arrears of rent by the specified date and future rent before the 5th of each succeeding month.

4. On appeal by the petitioner, the above order of the Rent Controller was set aside by the learned District Judge vide order dated 6-1-1965 on the ground that the auction sale in favour of the respondent was confirmed by the Additional Settlement Commissioner who had no jurisdiction under the law so to do. The law bearing, on the subject, however, was amended in the meantime by Ordinance XIII of 1964 to take effect retrospectively so as to validate all confirmations of auction sales by the Additional Settlement Commissioner and the respondent thereupon applied to the learned District Judge for a review of his order. The review petition, however, was dismissed by the learned District Judge on 27-5-1965 on the short ground that he had no power of 'review under W.

5. P. Ordinance VI of 1959. This obliged the respondent to file a belated second appeal on 7-7-1965 against the original order of the learned District Judge dated 6-1-1965 accepting the petitioner's appeal. The respondent also prayed for the condonation of delay on then ground that the law being in a state of flux, he was wrongly advised to file review application before the learned District Judge, and further that he suffered a fracture of leg in an accident and was laid to bed. In the absence of any counter-affidavit by the petitioner, the delay for filing the appeal by the respondent was condoned by the High Court. On merits the High Court held that P. T. O. Having issued in favour of the respondent, the Rent Controller or the Appellate Authority had no jurisdiction to go behind the order of the transfer of the house in favour of the respondent, and therefore, set aside the order of the learned District Judge and restored that of the learned Rent Controller.

6. The learned counsel for the petitioner basing himself on Paragraphs 19 and 21 of the Settlement Scheme No. IV argued that the house being in possession of the petitioner who is a refugee from the State of Jammu and Kashmir, its transfer to the respondent was void and therefore petitioner was not liable to ejectment. As rightly held by the High Court, the Settlement Authorities in exercise of their exclusive jurisdiction had transferred the house in dispute in favour of the respondent who having paid the price was issued a P.T.O. The petitioner who had failed to file any appeal or revision against the transfer of the house in favour of the respondent, cannot now agitate against the transfer before the Rent Cont--roller who exercises a limited jurisdiction under the Ordinance.

7. Learned counsel for the petitioner further argued that respondent's appeal before the High Court was barred by limitation and that delay was condoned foe inadequate reasons. The argument is without substance. As pointed out already respondent filed an affidavit explaining the reasons which prevented him from Wag the appeal within time. There was nocounter --- affidavit by the petitioner.

8. The petition is accordingly dismissed.