1993 PLP 1424 (MLD)

(4) Whether the opponent has committed default in payment of rent? (5) Whether the house in question is required by the applicants for their personal bona fide use? (6) What should the order be? In the rent proceedings, the Issue No.2 being the issue dealing with the relationship of landlord and tenant between the parties was taken up as preliminary issue at the request of the Advocates for the parties. The parties had led evidence on this issue. The respondents examined Muhammed Anwar, who produced P.T.D., .Extract of City Survey record, copy of notice addressed to the appellants, envelope containing notice, postal receipt and acknowledgement receipt. He also examined City Surveyor and then closed his side. In rebuttal the appellant filed the affidavits of his son Muhammed Yameen, DW Barkatullah, DW Barkat Ali and his own affidavit. He produced rent agreement between his son and Dr.Nazeer Ahmed, two PTDs, three rent receipts. He also examined Dsr. Nazeer Ahmed, who produced copy of order dated 13‑9‑1979 from the Court of IInd Senior Civil Judge, Hyderabad and a letter of Deputy Settlement Commissioner. Lastly he filed affidavit‑in‑evidence of DW.Haji Noor Muhammed and then closed his side. All these witnesses were cross‑examined. The learned Rent Controller after hearing the arguments of the Advocates for the parties was pleased to decide the preliminary issue in favour of the respondents vide orders passed on 5‑3‑1980. Consequently on the same day, he also passed an order directing the present appellant to deposit the arrears of rent from August, 1975 to February, 1980 at the rate of Rs.75 being a sum of Rs.4,200 by 10‑4‑1980 and also to continue to pay future monthly rent at the same rate on or before 10th of every following calendar month. This order was not complied with by the appellant and, therefore, an application was moved by the present respondents under section 16(2) of Sindh Rented Premises Ordinance, 1979. The present appellant did not file any objections to the said application. Nazir's report also shows that no deposits were made by the appellant in consequence of the orders dated 5‑3‑1980. The Rent Controller, therefore, passed the impugned order on 21‑8‑1980, hence this appeal. I have heard Mr.Hakim Ali Siddiqui, the learned counsel for the appellant and Mr. Hassan Mahmood Baig, the learned counsel for the respondents. The learned counsel for the appellant has contended that the Rent Controller while deciding the preliminary issue has not considered that certain valuable rights had accrued in favour of the present appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as Act of 1958. He has submitted that section 30 of the Act of 1958 provided that no action for ejectment can be taken against a statutory tenant unless a notice under section 30 of the Act of 1958 has been served upon him and a period of six years has elapsed. He has referred to the provisions of section 30 of the Act of 1958. He has further contended that in law no tenancy stands created except where such notice is served as required under section 30 of the Act of 1958. He has placed reliance on the case of Maji Faqir Muhammed v. Hazratullah 1989 CLC

252. This case would not be of any help to the present appellant as in this case it has been held that a tenancy would not ipso facto be created between the parties but the relationship of landlord and tenant could be created only either by some oral or written agreement or by Statute. In the present case, it is an admitted position that the premises in dispute were transferred to the deceased father of the respondents in 1965; and that the present appellant is in occupation of the same since very beginning. In these circumstances, by operation of the Statute, the appellant becomes a tenant of the transferee as laid down in section 30 of the Act of 1958. Section 30 (1) of the Act reads as under: (1) Where any person is in possession of any evacuee house, or shop, or has been declared on or before the 20th day of December 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August 1947, in any industrial concern, Cinema house or printing press which is transferred to any other person under the provisions of this Act, then notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer:‑‑‑ (2) ........................................................................................................................... (3) ........................................................................................................................... A plain reading of this provision would itself show that the present appellant, if in occupation of the premises transferred to the respondents' father, had become statutory tenant and he cannot deny the said position. The learned counsel has then referred to the cases of Khair Muhammed v. Akhter Hussain 1983 CLC 302, Qadir Khan v. Mst. Kishwar Begum 1983 CLC 613, Haji Suleman v. Haji Amin Shakoor Tubi 1982 CLC 1453 and Muhammed Tufail v. Barkat Ali PLD 1967 Kar.

151. The facts of all these cases are different than the present case. In the last case of Muhammed Tufail v. Barkat Ali, it may be observed that the same pertains to period prior to 1974 when the Evacuee Laws were in force. Repelling the above contentions of the learned counsel for the appellant, Mr.Hassan Mahmood Baig, the learned counsel for the respondents has submitted that the Evacuee Laws including Displaced Persons (Compensation and Rehabilitation) Act, 1958 stood repealed by Act XIV of 1975 with effect from 1‑7‑1974 through an earlier Ordinance. He has further submitted that the effect of the repeal of the Evacuee Laws is that any protection, which was available to the occupant under section 30 of the Act of 1958, had been lost and ceased to exist. In support of his above contention he has placed reliance on the case of Mst. Jaleesa Begum v. Iqbal Ahmed Qureshi PLD 1982 SC 396 wherein their Lordships have been pleased to hold that the effect of Act XIV of 1975 repealing the Evacuee Laws read with General Clauses Act section 6 is that the protection against eviction available to the occupant disappeared as if it never existed. Also in the case of Rahim Bux v. Ch. Ahmed Bukhsh PLD 1964 SC 189 it has been held by their Lordships as under:‑‑‑ "The upshot of the whole discussion is that the P.T.O. issued in favour of the respondents must have its full force and the appellant has become a statutory tenant under the respondents who are the P.T.O. holders. The Rent Controller had therefore, jurisdiction in the case. The appeal fails and is hereby dismissed with costs." The r6sult of the above discussion in view of the case‑law cited is that since repeal of the Evacuee Laws under Act XIV of 1975 all the protections against the eviction available to occupant under section 30 of the Act of 1958 ceased to exist and can no more be pressed. The consequence is that the relationship of the parties thereafter is to be governed under the law as applicable i.e. West Pakistan Rent Restriction Ordinance, 1959 and thereafter the Sindh Rented Premises Ordinance, 1979. Now the next question is as to whether a proper notice under section 13‑A of the West Pakistan Rent Restriction Ordinance, 1959 as was applicable then, had been served on the present appellant. The evidence shows that a notice had been sent by the present respondents to the appellant through registered post A/D on 31‑7‑1978, the copy of which is produced as Exh.36. The respondents have also produced as Exh.37 an envelope containing the said notice addressed to the present appellant on the address given as "House No.B‑72/73 Mohallah Hajam Para, Tando Allahyar". They have also produced the postal acknowledgement receipt as Exhs.38 and

39. This envelope was returned by the appellant as refused. The learned counsel for the appellant has submitted that burden is on the respondents to prove that such notice was served on the appellant; and that he had refused the same. He has further contended that it was, therefore, 'necessary for the respondents to have examined representative of Postal Authorities which they have failed to do. I am afraid even this submission of the learned counsel is of no help to him in view of the circumstances of this case. In the present case, it may be observed that a notice has been sent through registered post on the address of the B appellant as disclosed in the case and the same has been prepaid for. In these circumstances, it would be deemed that the notice has been deliberately refused by the appellant; and that he knew the contents of the notice. In the case of Moniruddin v. Shamsuddin Ahmed 1969 SCMR 873, their Lordships have been pleased to hold as under: "Section 27 of the General Clauses Act, inter alia, provides that where any Central Act or Regulation made after the commencement of that Act authorises or requires any document to be served by post, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Section 106 of the Transfer of Property Act among other things lays down that the notice contemplated by that section either be sent by post to the party ..or be tendered or delivered personally to such party . Under section 114(e) of the Evidence Act there is a presumption that official acts have been regularly performed. There is no dispute about the fact that the envelope was correctly addressed. The posting of the envelope with proper stamps has been proved and was not disputed. In these circumstances a presumption arose that the envelope was delivered to the petitioner and since it came back to the sender he did not accept it. The refusal points to the conclusion that he was aware what was container: in the envelope. Mere denial by the petitioner is not sufficient to rebut the presumption." Similar view has been taken in the cases of Khuda Bukhsh v. Muhammad Yakooq 1981 SCMR 179; Ghulam Muhammad v. Muhammad Sharif 1987 CLC 2439 and Bashir Ahmed Khan v. Mumtaz Khan PLD 1965 (W.P.) Lah.

126. In view of the above discussion, it is established that the due notice as under section 13(A) of the West Pakistan Rent Restriction Ordinance, 1959 was sent by the respondents to the appellant and the same was properly addressed and, therefore, it would be deemed to have been served on the appellant even if refused by him. Now I take the factual aspect of the case. In the present case, the appellant has pleaded that his son Muhammad Yameen is the tenant of Dr. Nazeer Ahmed at a monthly rent of Rs.40 which he has been regularly paying to Dr. Nazeer Ahmed and, therefore, the question of relationship of landlord and tenant between the present parties does not arise and he is not liable to pay the rent to the present respondents. He has produced an Agreement of Tenancy as Exh.68. This agreement shows that the said Muhammad Yameen is tenant of Dr. Nazeer Ahmed in respect of a portion of the House No. V‑

68. He has also produced three rent receipts dated 8‑10‑1978, 12‑10‑1975 and 17‑9‑1972 as Exhs.71, 72 and 73 respectively. Last receipt Exh.73 shows the rent was received from one Boddi Masih while the other two receipts do not show as to from whom the rent has been received. Now a reference may be made to the cross‑examination of this Muhammad Yameen, the son of the appellant. In his cross‑examination he states "I do not know the number of the house in which I am residing presently. Azizuddin resides in the disputed premises since last 8/9 years." Now disputed premises is House No.B‑72/73, whereas the Agreement in favour of Muhammad Yameen is with regard to House No.B‑

68. This itself shows that Azizuddin, the appellant is in occupation of the house other than the house which is in tenancy of Muhammad Yameen. it would be pertinent to also refer to the cross‑examination of present appellant Azizuddin himself wherein he has stated that he is residing in the disputed premises since 9/10 years; and that entire premises are in his possession. He further says in cross‑examination that he knows Ch. Hanif and it is a fact that house of Dr. Nazeer Ahmed is in occupation of Ch. Hanif. This cross‑examination also goes to contradict the case of the appellant. Lastly a reference may be made to the evidence of City Surveyor Jan Muhammad, who is the most important witness in this respect. According to the evidence of Jan Muhammad, the ,three City survey numbers i.e. B‑68, B‑72 and B‑73 are distinct survey numbers. He has also stated that there is one house constructed over C.S. No.72 and 73 and a separate house is constructed over C.S. No.68. He has also stated that an evacuee C.S. No.71 is lying in between C.S. No.68 on one side and C.S. Nos.72 and 73 on the other side. It will also be material to observe that the evidence of City Surveyor further shows that House on C.S. No.68 stands mutated in the name of Dr. Nazeer Ahmed while House on C.S. No.73 stands mutated in the name of Muhammad Irfan Khan (deceased father of respondents). He has also stated that the evacuee owners of C.S. No.68 and C.S. No.73 are different. P.T.D. produced before the lower Court show that House No.68 was owned by evacuee Moolchand while Houses. Nos.B‑72 and B‑73 was owned by Toularam Basarmal. This would also show that the C.S. No.68 and C.S. Nos.72 and 73 are different properties and cannot be the same as pleaded by the appellant. The learned counsel for the appellant has argued that the evacuee No.B‑68 was given corresponding Nos.B‑72 and 73 by Settlement Authorities. This does not stand proved in the circumstances, as he has not brought any evidence on the record to substantiate the same. Lastly the learned counsel for the appellant has placed reliance on the case of Abdul Salam and 2 others v. Muhammad Rasheed 1983 CLC 1058 and has prayed that in view of the principles laid down in this case the present case may be remanded. I am afraid that this contention of the learned counsel is also devoid of any force as in the above case there was no evidence recorded on the preliminary issue and, therefore, the case was remanded while in the present case both the parties had led exhaustive evidence on the preliminary issue. In view of the above discussion, I find no justification to interfere with I the two orders passed by the Rent Controller. The appeal is accordingly dismissed with no order as to costs. The appellant shall hand over the vacant possession to the respondents within 30 (Thirty) days from the date of announcement of this judgment. H.B.T./A‑1349/K Appeal dismissed.