P L D 1962 (W (PLP)

Date of hearing : 29th January 1960. This Revision application is directed against the order of S. Iftikhar Hussain, Judge, Karachi Small Causes Court in Ejectment Application No. 540 of 1954, dated the 5th January 1956, ordering the ejectment of the petitioner from the premises in his occupation. Briefly, the facts leading to the present petition are that the petitioner was occupying quarter No. 5 in the Keamari Village, Karachi as a tenant of the K. P. T., the opponent. By a notice dated 31st July 1952, the opponent called upon the petitioner to vacate the premises by 31st August 1952. The petitioner failed to comply with the notice of ejectment and eventually on 27th August 1954, opponent filed an application for ejectment against him in the Karachi Small Causes Court. The learned Subordinate Court accepted the application and ordered the petitioner to vacate the premises. The sole question for consideration in this case Is whether the ejectment notice dated the 31st July 1952, for vacating the premises is a valid notice or not. The learned Subordinate Court disposed of this question on the short ground that it conforms with the requirements of law and treated, it as a valid notice. Mr. Ishaque Ahmad, the learned counsel for the petitioner has attacked this finding and contended that the notice is bad as admittedly full calendar month's notice to vacate the premises In question was not given. He referred me to the notice in question and the acknowledgement receipt Exh. 14 to show that the notice was served on the petitioner on 4th August 1952, and cannot be treated a calendar month's notice as mentioned in paragraph 4 of the petition. On the other hand, Mr. Hassan, the learned counsel for, the opponent, argued that the allegation in para. 4 of the petition was made inadvertently and under section 106 of the Transfer of Property Act, which applies to this case, notice of fifteen days was sufficient and the notice in question fully conforms with its require ments. It appears to me that a landlord cannot be allowed a such a late stage to go back on the allegation made in the plaint., Once the allegation is made that a calendar month's notice was given, it shall have to be presumed that either it was necessary under the terms of the contract or on the basis of the local usage. It is obvious to me that in such cases it is not obligatory on the tenant to allege and prove that a calendar month's notice was necessary under the terms of the contract or local usage as the matter shall have to be disposed of on the admission of the plaintiff. Mr. Hassan strongly contended that in Karachi there is no local usage to give one month's notice to the tenant to vacate the premises. While at the Bar it was always my impression that such a usage is recognised in Karachi. Rupchand, J. in Haroon Haji Hamid v. Meherali Din Mahomed (A I R 1927 Sind 24) has indirectly referred to such customary notice. Number of cases from Karachi cited at the Bar also show that in all cases one month's notice was given to the tenant to vacate the premises. On these instances there can be no doubt that such a usage does exist in Karachi. But the decision of the present case, as already observed, does not depend on the proof of such a local usage. The opponent in paragraph 4 of the plaint clearly stated:‑ The opponent has been duly served with a calendar month's notice expiring on 31‑8‑1952, copy filed herewith and marked `B'." This allegation amounts to an admission that a calendar month's notice was necessary in this case to terminate the tenancy. Now the notice in question was given on 31st July 1952, and served on the petitioner on 4th of August 1952, which clearly falls short of a calendar month and cannot be treated as valid notice. In these circumstances the learned Subordinate Court's order in favour of the opponent cannot be upheld. Accordingly the order for ejectment is set aside and the revision is allowed. The opponent will bear the costs of these proceedings. A. H. Revision allowed,