P L D 1968 Lahore 229 (PLP)

(4) If the respondent No. 1 has sublet the shop in dispute to respondent No. 2? O. P. P. (5) Relief. Learned Rent Controller held

"The alleged refusal of the registered notice Exh. P. 1 by the respondent No. 1 is not believed by the Court. The postman himself should have been put to cross‑examination. The formal .proof of Abdul Qayyum the record clerk is not accepted." The learned Rent Controller also came to the conclusion that the true monthly rent of the shop was Rs. 12.50. On issue No. 2, the finding was that the tenant had matte a statement before the issues, that the applicant was the proprietor of the shop in dispute since the 19th of March 1963. Knowing this fact the tenant should have paid rent to the landlord and on refusal that should have been deposited with the Rent Controller. The appellant was, therefore, found to be a defaulter. On issue No. 4, the finding of the Rent Controller was that besides the two statements of respondents 1 and 2 that they were master and servant, there was no independent evidence on the record to support their version. The photograph duly admitted by the respondent shows a sign board "Yamin Expert Vulcanizer" on the shop.

5. In his statement Raja Muhammad Alam admitted that he was paying Rs. 12.50 to the Rehabilitation Department. The rent of the shop in the vicinity might be Rs. 20/25 p.m. He was running hotel Kehkshan in the disputed shop. Now the work of vulcanization is carried therein. Yamin appearing as R. W. 2 admitted in cross‑examination that he was serving with respon dent No. 1, Raja Muhammad Alam for the last 10 months. He further stated that when he came the work of vulcanization was started in the shop, and before his coming, there was ‑a hotel in the shop. Respondent No. 1 started vulcanizing before, and he was brought later. He admitted that a sign board of his name was hanging on the shop.

6. On behalf of the landlady, Muhammad Sadiq Taxation Sub‑Inspector appeared as P. W. 1 and produced the relevant record showing the latest assessment of the rent of the disputed shop. Abdul Qayyum P. W. 2 record clerk of Chakwal post‑office stated that a registered letter was posted on the 22nd of July 1963, which was returned to the post office with the report of the postman. He identified the signature of the postman, who had reported refusal on it. He stated that the postman was on sick leave and was suffering from T. B. and belonged to Gujjarkhan. The attorney of the landlady appeared as P. W.

3. He stated that the shop was transferred to Mst. Akbari Begum on the 19th of March 1963. At the time of the transfer, Raja Muhammad Alam was running "Hotel Kehkshan" in it. Notice was served on him on the 22nd of July 1963. He did not pay any rent. In the shop, Muhammad Yamin is now carrying on the work of a vulcaniser for the last 9/ 10 months. He is a sub‑tenant under Raja Muhammad Alam appellant. Learned Rent Controller ordered the ejectment of the appellant.

7. Feeling aggrieved by this order the appellant filed an appeal before the learned District Judge which was dismissed by him on the 28th of June 1965. Hence this second appeal.

8. Mr. Zia Mahmood Mirza, learned counsel for the appellant argued that as the learned Rent Controller did not believe the refusal of the registered notice Exh. P. 1, because the postman was not produced and the formal proof of Abdul Qayyum record clerk was not accepted by him, therefore, the statutory notice under section 30 was not proved, in the absence of which there could not be any relationship of landlord and tenant between the parties, and penalty of ejectment could not be incurred by the tenant, even if, he had admitted that he knew that the property was transferred to the landlady. He relied on Mrs. E. A. Evans v. Muhammad Ashraf (P L D 1964 S C 530) and also cited Malik Abdad Aziz v. West Pakistan Publishing Company (Private) Ltd. (P L D 1965 Lah. 82) in support of his contention. I am afraid there is no force in the submission of the learned counsel for the appellant. In this case, in the first place, there is an explana tion for not producing the postman in the witness‑box furnished by Abdul Oayyum record clerk of the Chakwal post office. He stated that the postman belongs to Gujjarkhan and was on sick leave as he was suffering from T. B. This was a reasonable explanation why the postman was not produced. The record clerk bad also stated that he identified the signatures of the postman. Normally, this evidence should have been accepted as secondary evidence. However, this evidence has not found favour with the learned Rent Controller or the learned District Judge. Probably the appellant can raise such plea that he has not received the statutory notice for demand of rent, and at the most he can wriggle out of the penalty of default. But in my humble view he would definitely incur the penalty of eviction from the shop in dispute which he knew has been transferred to the landlady if he sublets the property or in any manner causes damage to it. Section 30 of the Displaced Persons (Compensation and Rehabili tation) Act, 1958, is reproduced as under :‑- Section 30.‑(1) Where any person is in possession of any evacuee house, or shop, or has been declared, on or before the twentieth day of December 1958, by a Custodian to have tenancy rights from a date prior to the fourteenth day of August 1947, in any industrial concern, cinema house or print ing 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 immedi ately before transfer: Provided that‑ (a) it shall not be lawful for the transferee to charge a rent on the basis of the latest assessment (carried out by the municipality or local authority, as the case may be, for other properties in the local generally) and (b) it shall not be lawful for the transferee to eject such persons from the (house or shop for a period of six years, and from the) industrial concern, cinema house or printing press for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknow ledgment due). (2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period (mentioned in that proviso) shall count from the date of receipt of such notice by the tenant. (3) Nothing in proviso (b) to subsection (1) shall apply to a tenant‑ (i) who has not, within three months from the date of receipt of a notice of demand sent to him by the transferee by registered post (acknowledgment due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer ; or (ii) who, after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house, or printing press, or any part thereof, or has committed acts which are destructive of or injurious to the property ; nor shall anything therein apply to the tenant of any house or shop, in any urban area within the same town or city, owns a house or shop, as the case may be." A cursory reading of this provision of law would show that an occupant of a property under the Act would become a tenant under the transferee on the same terms and conditions, but the transferee would be entitled to charge rent according to the latest assessment of the municipality or local authority or other properties in the locality. The tenant has been granted protec tion against his eviction for a period of six years. The notice has to be given within one month of such a transfer by a registered post (acknowledgment due). If the transferee does not give any notice within one month, then the period of six years shall commence from the date of the receipt of such a notice by the tenant. Clause (3) of section 30 requires the tenant to pay the arrears of rent to the landlord within three months of the receipt of the notice. If he does not tender the arrears of rent dues, be is liable to incur the penalty of eviction. The tenant is also liable to ejectment from the property if after the transfer he sublets or otherwise parts with the possession of the property or causes any injury or damage to the property. Clause (3) (ii) of section 30 is an independent clause in which there is no A mention of any notice of transfer, although such a notice has been mentioned in sub‑clause (i) of clause (3) of section

30. If the tenant has the knowledge that certain property which he is occupying has been transferred to a certain individual and he either sublets it or commits any act of injury or waste regarding that property, he cannot seek the protection of eviction from that property under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. I am fortified in my view by a decision of my learned brother Anwarul‑Haq, J. in Nawabzada A. K. Mumtaz v. Begum Naeema Khanam (P L D 1967 Lah. 11).

9. There is a concurrent finding of fact on this point that the property has been sublet by the appellant, and Muhammad Yamin is carrying on business of vulcanising in the shop in dispute at present. Previously, in this shop, the appellant was running "Hotel Kehkshan". It was after the transfer of the property to the respondent that the appellant sublet the same and, as such, he cannot seek protection against his eviction, even if no notice is proved to have been served on him by the landlady.

10. For the reasons given above, this appeal is dismissed, but I make no order as to costs. S.A.H. Appeal dismissed.