1979 PLP 732 (CLC)

Raja Said Akbar Khan for Respondent, Date of hearing : 4th March 1979. This second appeal is directed against an order, dated the 3rd of December 1978, passed by an Additional District Judge of Rawalpindi, whereby he dismissed the first appeal of the appellant, Ahmad Dar, against an order for his ejectment from a house belonging to the respondent; Mian Abdul Majid.

2. The house in dispute was transferred to the respondent under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The appellant was occupying the house at the time of its transfer to the respon dent and he continued to occupy it even after its transfer as aforesaid. Thus, by virtue of the provisions of section 30 of the said Act, he became a statutory tenant under the respondent. However, according to the respondent, the appellant did not pay him rent and, therefore, he sought eviction of the appellant from the house in question by making an application, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The appellant opposed the application inter alia on the ground that notice under section 30 of the said Act was not served upon him, and, therefore, the respondent could not oust him from the house in dispute on the ground of default. The learned Rent Controller, who heard the application, found that the required notice was sent to the respondent but he had refused to receive it. He, therefore, passed an order of ejectment against him. The finding of the Rent Controller has been upheld by the learned Additional District Judge who has dismissed the first appeal against the order of ejectment passed against the appellant.

3. Learned counsel for the appellant contended that the respondent had failed to establish that the appellant had refused to accept service of the notice in question. The respondent's case is that the notice was sent to the appellant by means of registered post and when it was taken to the appellant by Muhammad Anwar Postman the appellant refused to get it. This was denied by the appellant in his reply to the application. The respondent, however, did not examine the said Postman to prove the refusal of service by the appellant. Another Postman, namely, Muhammad Sarwar (A. W. 1) was examined by the respondent to prove the report of Muhammad Anwar Postman on the registered envelope. This, however, he was not able to do, because, as stated by him, he could not identify the handwriting of Muhammad Anwar. His statement was misread by the learned Additional District Judge. This is obvious from his observation to the effect that it was deposed by Muhammad Sarwar "that Muhammad Anwar Postman had gone to Greece and claimed that he was well conversant with the handwriting of Muhammad Anwar". The fact of the matter is that Muhammad Sarwar had expressed his inability to identify the handwriting of Muhammad Anwar and thus he did not prove the report of Muhammad Anwar regarding the refusal of service by the appellant, which report, as already stated, had been challenged by 'the appellant.

4. Learned counsel for the respondent also maintained that formal proof of the report of Muhammad Anwar Postman was not necessary because the same is presumed to have been correctly made. He relied o section 114 of the Evidence Act, 1872 and section Z7 of the Central Genera Clauses Act, 1897. In view of these provisions of law, a presumption of correctness is attached to the report in question but this is a rebuttabl presumption. In the present case, the presumption was effectively rebutted by the appellant by making a statement on oath, against which there is no such statement to the contrary. In the circumstances, the provisions of section 114 of the Evidence Act and section 27 of the Central General Clauses Act are of no avail to the respondent.

5. Admittedly, no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was received by the appellant before the ejectment proceedings were taken out against him. He is alleged to have refused service of the aforesaid notice but this plea has not been substantiated. The respondent could not seek his eviction on the ground of default without serving him with that notice. As this was not done, his ejectment could not be ordered on the ground of default. In this view of the matter, the order passed by the two tribunals below cannot be sustained.

6. As a result, I accept the appeal with costs, set aside the order of eviction passed against she appellant and reject the ejectment application made by the respondent. M. A. K. Appeal accepted.