P (PLP)

5. It was contended by the learned counsel for the appellant that the said Act was applicable to Islamabad. He maintained that according to the Schedule attached to the Province of West Pakistan (Dissolution) Order, 1970, the Islamabad Capital Territory was a Federal area and, therefore, the said Act, which was a Federal law, was applicable to Islamabad.

6. For the purpose of determining the extent of the application of the said Act I will have to refer to section 1 thereof, which reads as follows ; "I. Short title: This Act may be called the Transfer of Property Act, 1882. Commencement.--It shall come into force on the first day of July 1882. Extent.-This Act or any part thereof may by notification in the official Gazette be extended to the whole or any part of a Province ,and the Federal Territory of Karachi by the Provincial Government concerned. And any Provincial Government may . . . . . . . . from time to time, by notification in the official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such Provincial Government from all or any of the following provisions, namely : Section 54, paragraphs 2 and 3, 59, 107 and

123. Notwithstanding anything in the foregoing part of this section, section 54, paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Registration Act, 1908, under the power conferred by the first section of that Act or otherwise." From these provisions, it is evident that while making the law contained in the said Act, the Legislature did not itself make it applicable to any part of the country and it was left to the Provincial Governments to extend its application to the areas to which they were concerned, by issuing notifications in this behalf. No such notification has been placed on the record extending the application of the said Act to Islamabad. It may also be pointed out that in view of the present wording of section 1, it is not possible to issue a notification extending the application of the said Act to Islamabad because the Federal area referred to in section 1 to which the Act can be made applicable is the Karachi Federal Territory and not the Islamabad Capital Territory. In this state of affairs, the said Act does not become applicable to Islamabad merely for the reason that it is a Federal area. This being the correct legal position, I agree with the two Courts below that the said Act does not apply to Islamabad.

7. The next point canvassed by the learned counsel for the appellant was that even if the provisions of the said Act were not applicable to Islamabad, the appellant could invoke the principles thereof as principles of equity, justice and good conscience. The argument proceeds that the respondent did not serve the appellant with a notice of termination of the tenancy as contemplated by section 106 of the said Act and, therefore, he was not entitled to seek his ejectment. According to the respondent, he had served the appellant with notices terminating his tenancy on two occasions-once on 13th July 1978, by means of a telegram (copy Exh. P. 1) and then on 21st August 1978, by means of a letter, Exh. P. 5, addressed by the respondent's counsel, Mr. Anwar-ul-Haq to the appellant's counsel, Mr. Basbir Ahmad Ansari. These notices, according to the learned counsel for the appellant, were not valid inasmuch as the first one was not sent by post and the second one was not received by the respondent or any member of his family or his servant. It was also urged by him that even if the notice alleged to have been sent by telegram was considered to be valid, its service had not been proved. He cited M. Salim v. Sheikh Abdul Latif (1), G. A. Jaffery v. Karachi Port Tust (2) and Rattan Sen Sachhar v. Sm. Krishan Kaur and another (3) to support his arguments. (1) P L D 1963 Dacca 477 (2) P L D 1962 Kar. 32 (3) A I R 1933 Lab. 134

8. On the other hand, learned counsel for the respondent pleaded that the notice sent by the respondent to the appellant by means of a telegram was a notice sent by post and, therefore, it satisfied the requirements of section 106 of the said Act. He also submitted that the telegram was delivered to the daughter of the appellant at his residence and, therefore, it amounted to service of notice on a member of his family. As regards the letter sent by respondent's counsel to that of the appellant's counsel in regard to the termination of the tenancy, learned counsel for the respondent submitted that the said letter too amounted to service of notice on the appellant inasmuch as the appellant's counsel was his agent. Besides, it was urged by him that even if the view taken was that no valid notice was served on the appellant before the filing of the suit, the institution of the suit itself amounted to notice of termination of the tenancy and, therefore, the suit could not be thrown out on the ground of non-service of notice. In this connection, he invited my attention to Maulvi Faiz Bakhsh v. Syed Shad! Shah (4) and Karam Chand v. Amar Nath Mohsan (5). (4) P L D 1956 Lab. 261 (5) A I R 1933 Lab. 377

9. Before examining the respective contentions of the learned counsel for the parties, I would like to reproduce the provisions of section 106 of the said Act in so far as they relate to the service of notice. They make the following reading : "Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if surf tender or delivery is not practicable) affixed to a conspicuous part of the property."

10. The word "post" has not been defined in the said Act and, therefore, we will have to look to its dictionary meaning. In the context in which the word "post" has been used in section 106, according to the Chambers( Twentieth Century Dictionary (New Edition 1973), it means as follows : "A messenger carrying letters by stages or otherwise : a post-man (obs. Ordain) : a public letter carrier : an established system of conveying letters : a post-horse (Shak) : a male-coach : a packet-boat (obs.) : a despatch, delivery, or batch of letters : a post office, or post office letter box." This clearly indicates that the word "post" refers to the word "letter", and it is too well known that a letter sent by one person to another is delivered in its original shape. Since a telegram is not sent in that shape but the message recorded therein is conveyed mechanically it cannot be treated as post. It is also a matter of common knowledge that the Postal Department is different from the Telephone and Telegraph Department. They have separate establishments and their functioning is regulated by separate laws, namely, Post Office Act, 1898 and the Telegraph Act, 1888. I therefore, agree with the learned counsel for the appellant that the telegram sent by the respondent to the appellant was not a notice sent by post within the meaning of section 106 of the said Act.

11. As stated earlier, it is also the plea of the learned counsel for the appellant that the delivery of the telegram had not been established by the respondent. In his written statement, the appellant had denied . having received the telegram. It is not disputed that the appellant was abroad when the telegram was sent. His wife appeared as his witness to depose that the telegram was not delivered at his house. It was, therefore, necessary for him to produce evidence to show that the telegram was, in fact, delivered to some member of the family of the appellant or to his servant. He, however, did not produce any official of the Telegraph Department to do the needful. The witness appearing from the respondent's side is the respondent himself. He, however, frankly admitted that he was not there when the telegram was delivered at the house of the appellant. 1, therefore, agree with the learned counsel for the appellant that the service of notice through telegram had not been proved by the respondent.

12. As regards the other` notice which was in fact a letter addressed by the respondent's counsel to the appellant's counsel it is to be noted that the appellant's counsel was neither the servant of the appellant nor a member of his family. Learned counsel for the appellant referred to the appellant's counsel as an agent of the appellant but was not prepared to call him a servant of the appellant. Therefore, the appellant's counsel was not one of those who could receive notice: of the respondent on behalf of the appellant. Accordingly, the letter sent by the respondent's counsel to the appellant's counsel regarding the termination of the tenancy was not received by a competent person.

13. In conclusion, I hold that the telegram sent by the respondent did not constitute a vaild notice as contemplated by section 106 of the said Ac arid its service was also not duly proved by him. It will, therefore, have to be excluded from consideration. As for the letter sent by the respondent's counsel to the counsel for the appellant, although its receipt by the latter was not denied yet that too did not fulfil the requirements of section 106 because it was not received by any of the persons authorised to receive notice, under section 106, on behalf of the appellant. Therefore, strictly speaking, the respondent had not complied with the provisions of section 106 regarding the service of notice, before initiating ejectment proceedings against the appellant.

14. This is, however, not fatal to the case of the respondent. It has already been held that the said Act is not applicable to Islamabad where the house in dispute is situated. Therefore, strict compliance with the provisions of section 106 of the said Act cannot be insisted upon. In view of the principle enunciated in section 106, the respondent was required to inform the appellant that his tenancy bad been terminated. This he had done by means of the letter addressed by his counsel to the counsel for the respondent. The said letter, therefore, satisfied the requirements of the principle of section 106 though not of the provisions thereof which provisions as stated above, are not applicable to the present case.

15. Even if the said letter is omitted from the consideration, the filing of the suit by the respondent served as a notice of the termination of the tenancy and, therefore, he could not be non-suited just for the reason that formal notice of termination of tenancy had not been given to the appeal font before the institution of the suit . This view is supported by the law laid down in the cases of Maulvi Falz Bakhsh and Karam Chand which were relied upon by the learned counsel for the respondent. A contrary view appears to have been taken in the cases of M. Salim, G. A. J41fery and Rattan Sen Schhar, cited by the learned counsel for the appellant. While commenting on these cases it was pointed out -by the learned counsel for the respondent that the cases of M. Salim - and G. A. Jaffery related to areas where the said Act was strictly applicable. M. Salim's case is in respect of the former Province of East Pakistan and G. A. Jaffery's case pertains to the city of Karachi. It was conceded by the learned counsel for the appellant that the said Act had been made applicable - to the fromer Province of East Pakistan. As for Karachi, it was submitted try him that the said Act did not apply to that city. He, however, did not cite any authority to support his plea. The case of Rattan Sen Schhar relates to the Province of the Punjab. It was decided by Bhide,J. of the Lahore High Court in the year 1933. In the same year, His Lordship expressed a contrary view in the case of Karam Chand which too was in respect of the same Province. The view taken in the case of Karam Chand was also apprpved of by this Court while deciding the case of Maulvi Fair Bakhsh in 1956. Therefore, even if the said Act had not been made applicable to the former Province of East Pakistan and the city of Karachi, I would have, with respect, followed the view taken in the cases of Karam Chand and Maulvi Falz Bakhsh for the reason that strict compliance with the provisions of the said Act cannot be insisted upon in regard to the property situated in the areas to which the said Act has not been made applicable. To hold otherwise would amount to eliminating distinction between the areas to which the said Act applies and those to which it does not apply. This, for obvious reasons, cannot possibly be done. I, therefore, agree with the learned counsel for the respondent that the suit filed by the respondent amounted to notice to the appellant regarding the termination of his tenancy. This means that even if no notice in the matter .had been served on the appellant before the suit was brought against him, the suit could not be dismissed for non- service of the notice.

16. In result,. I find no merit in this appeal. It is, therefore, dismissed with costs.

17. Learned counsel for the respondent has no objection to one month's time being given to the appellant to vacate the premises in dispute. I, therefore, direct that the decree passed against the appellant shall not be -executed for one month. S. Q. . Appeal dismissed.