1983 PLP 2028 (CLC)

This appeal is directed against the order passed on 30th March, 1978 by the learned 1st Additional District Judge, Hyderabad whereby he set aside the order passed by the Rent Controller in Rent Case No. 15/76.

2. The facts briefly stated are that on the plea that respondent is tenant of the appellant in respect of property bearing C. S. No. B/1045 situated .at Tando Allahyar, the appellant filed ejectment case under section 13 of the then West Pakistan Urban Rent Rest riction Ordinance 1959 in the Court of Rent Controller at Tando Allahyar. The appellant landlord claiming to be the transferee of the above mentioned house from the Settlement Authorities on the ground that in spite of notice served under section 30 of the Displaced Persons Compensation Act of 1958 on 1st April, 1976 intimating the transfer and demanding the payment of rent the respondent com mitted default in tendering the rent and thus became liable to be ejected. The above application was contested by the respondent tenant inter alia on the ground that he was not in occupation of the house claimed to have been transferred by the appellant but he was residing in his own house bearing No. B/1047. He also denied that alleged notice under section 30 was served upon him. It was further pleaded that there was no relationship of landlord and tenant bet ween the parties. The learned Rent Controller accordingly framed the following preliminary issues "(1). Whether there exists relationship of landlord and tenant between the parties? (2) What should the order be? After recording the evidence and hearing the parties the learned Controller came to the conclusion that the appellant/landlord proved that he is the owner of the house bearing No. R/1045 and that the respondent is his tenant. It was further held that notice dated 1st April, 1976, Exh. 19 was served upon the respondent which was I received by his son Jamaluddin vide postal receipt/A. D. Exhs. 20 and

21. In view of the findings on issue No. 1 in the affirmative the learned Rent Controller held the respondent to be wilful defaulter in payment of rent and directed him to vacate the premises.

3. Civil Appeal No. 123/77 was filed against the above-mentioned order of the Rent Controller which was heard by the learned 1st Additional District Judge, Hyderabad who by his order dated 30th March, 1978, set aside the said order on the ground that the services of notice under section 30 on the son of the appellant could not be held as good service and that the signature on the acknowledgment receipt purporting to be that of his son had been denied by the respondent. It was also held that there was no evidence on record to establish that the respondent was the statutory tenant of the appellant/ landlord. Accordingly the findings of the Rent Controller that rela tionship of landlord and tenant existed between the parties was held to be erroneous and, therefore, the appeal was allowed.

4. I have heard the learned counsel for the parties both of whom in view of the cases reported in Muhammad Ramzan v. Ch. Bashir Ahmaa (P L D 1981 S C 340) and Muhammad Anwar v. Abdul Majeed (P L D 1981 Kar. 528) conceded that the plea of section 30 was no longer available in view of the repeal of the Dis. placed Persons (Compensation and Rehabilitation) Act of 1958, In view of the fact that the learned Ist Appellate Court disposed of the appeal on the interpretation of section 30 and its alleged non service of notice under section 30 upon the respondent, the counsel for the parties agree that the order of the learned 1st Appellate Court be set aside and the case may be remanded for decision on merits.

5. Accordingly by consent of the Advocates the order dated 30th March, 1978, passed in Civil Appeal No. 123 of 1977 by the learned 1st Additional District Judge, Hyderabad is set aside and the case is remanded to him i.e. the 1st Additional District Judge Hyderabad), who shall dispose of the same on merits in accordance with the Law, The parties are directed to appear before the learned 1st Additional District Judge, Hyderabad on 21st November, 1982. In the circumstances of the case there shall be no order as to costs. K. M. A. Case remanded.