1989 PLP 2468 (MLD)

3. Mr. H.A. Rahmani, learned counsel for the appellants made the following contentions before me. (i) The remittance by money orders (Exhs. 24 & 25) after the filing of the ejectment case or even commission of default could not erase the default. In support of his contention he placed reliance on several decisions of which I may refer only two i.e. 1972 SCMR 262 and 1987 CLC 364). (ii) In terms of Section 13-A of the Ordinance only an intimation was to be given to the tenants/respondents regarding the transfer of ownership in favour of the appellants. The respondents had not only the intimation of transfer of proprietary ownership rights in the disputed property in favour of the appellants but they had admittedly paid rent for the period commencing from 1972 to September 1976 as is evident from the various receipts Ex.8 onwards filed in the case. Abbas Hussain, the witness of the respondents, in his cross-examination has also admitted this fact. In these circumstances the non-service of section 13-A notice was not fatal to the proceedings. In this respect, he placed reliance on the following authorities:(a) PLD 1979 Lah. 210, (b) 1981 SCMR 179, and PLD 1982 Kar. 770 which has been upheld by the Hon'ble Supreme Court in 1983 SCMR 282. (iii) The learned Rent Controller has wrongly held that the evidence of the appellants' witness, Abdul Rashid Qureshi could not be considered on account of non-production of the power of attorney or any resolution passed by the Trustees to this effect. A.W. Abdul Rashid had deposed that he is the attorney of the appellants and also that he is appellants' Rent Collector for the last 8/10 years. The non-production of the power of attorney was thus of no material consequences. (iv) The ejectment application was filed by the appellants under their own signatures. The appellants' above-named witness, being the Rent Collector, was personally in know of the facts of the case and hence his evidence could not be discarded on the ground of non-production of the Power of Attorney Admittedly the rent receipts Ex. 8 to Ex. 20 were issued under his signatures as a Rent Collector. (v) The power of attorney has also now been filed with an application (CMA-1919/84) in this Court shortly after the filing of the appeal. (N.B.-This application has been allowed by a separate order of date passed thereon).

4. Mr. Abdul Sattar Memon, learned counsel for the respondents, on the other hand, contended: (i) that the ejectment application has been dismissed by the learned Rent Controller on merits as well as on legal grounds as is evident from the impugned order. She has categorically stated that "in any case, after taking into consideration the evidence available on record, I hold that the opponent has not committed any willful default and no notice under Section 13-A of the Ordinance, 1959 had been given and thus for the above reason and for the reason that the applicant had failed to produce any authority to give evidence. I hold that this application is not maintainable." (ii) that-the non-service of notice under section 13-A of the Ordinance was fatal to the proceedings. In support of his contention he cited a single Bench decision of this Court in the case of Mrs. Mariam Fernandez v. State Life Insurance Corporation of Pakistan (1981 CLC Kar. 591).

5. Having heard the arguments of the learned counsel for the parties and going through the deposition of the witnesses and the impugned order, I have reached the conclusion that the impugned order cannot be sustained for reasons more than one. In the first instance, having paid the rent to the appellants for several years, after the property having been purchased by them, the non-service of formal notice under Section 13-A of the Ordinance was of no material consequence. The rejection of the application, inter alia, on this ground was little justified. Secondly, the evidence of A. W. Abdul Rashid Qureshi has been wrong discarded from being considered for want of the production of Power of Attorney. In this behalf she failed to appreciate that this witness was also a Rent Collector and had deposed about the facts out of his personal knowledge.

6. The observations made by the learned trial Court with regard to the effect of non-service of notice under Section 13-A of the repealed Ordinance, 1959, the learned counsel for the appellant has, in my opinion, rightly pleaded that it was not fatal to the case in the facts and circumstances of the case inasmuch as the respondents had been paying the rent to the appellants right from October; 1972, onwards until September, 1976 through Receipts Ex.8 to Ex.19 (appearing at pages 27 to 49 of the lower Court record), the rent receipts issued by the appellants to the respondents. There can, therefore, be no question of the respondents having no intimation about the transfer of the property in question in favour of the respondents. Since the learned Rent Controller, has already observed, has not recorded her finding on the question of default in ,payment of rent after duly scrutinizing the evidence prevalent on record and giving her reasons therefore. I, therefore, think it proper to set aside the impugned order and remit the case to the learned trial Court for fresh order according to law, after considering they pleadings and the evidence on record.

8. In the result, the appeal succeeds and is allowed as indicated above. The parties are, however, in the circumstances of the case, left to bear their own costs.) M.Y.H./ M-754/K