1980 PLP 1967 (CLC)

This second appeal has been filed by one Rehmat Din alias Rehman Din to call in question an order of ejectment made against him.

2. The impugned order relates to a house which was previously owned by one Allah Dad and his brother, Khuda Dad. On 29th Septem ber, 1967, when the house was occupied by the appellant as a tenant under them, it was purchased by the respondent, Mst Walayat Jan. She sought ejectment of the appellant alleging that he had committed default in the payment of rent and that she needed the house for her own occupation and for the purpose of reconstruction. The appellant resisted the application, inter alia, on the ground that after the purchase of the house, notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance. 1959, hereinafter referred to as the said Ordinance, was not served by her and, therefore, she could not ask for his eviction on the ground of default. It was, however, admitted by the appellant that he had not paid or tendered any rent to the respondent. The Rent Controller, who heard the application, framed a preliminary issue with regard to the service of the said notice and, after recording the parties evidence thereon, decided that issue against the appellant. Since the appellant had not alleged the payment or tender of any rent, the learned Rent Controller straightaway ordered his ejectment by treating him as a defaulter. On this, the appellant went in appeal before an Additional District Judge but without success. Hence this second appeal by him.

3. What actually happened in this case was that the notice in question which was sent by the respondent to the appellant by means of registered post, acknowledgment due, was not delivered to the appellant. Instead, it was received by his brother-in-law, Khali -ur-Rehman on behalf of the appellant. The learned Rent Controller treated this as a valid service of the notice on the appellant and his finding was also upheld by the appellate authority.

4. Learned counsel for the appellant contended that according to section 13-A of the said Ordinance the notice is required to be served on the tenant but since it was not served on the tenant (appellant) in the present case the requirement of section 13-A had not been satisfied and, therefore, the appellant's eviction on the ground' of default was not in order.

5. In reply, learned counsel for the respondent maintained ,that as it was not denied that Khalil-ur-Rehman, who had received the notice on behalf of the appellant, was his brother-in-law and both of them lived together, the delivery of notice to Khalil-ur-Rehman would be deemed to be a valid service notice on the appellant. He cited Masood Sadiq v. Haji Muhammad Ali (P. L. D 190 Lah. 1201.) to support his contention.

6. While commenting on the argument advanced by the learned counsel for the respondent, it was submitted by the learned counsel for the appellant that the cited case was distinguishable inasmuch as the view expressed in the precedent case was inter alia based on the provisions of section 27 of the General Clauses Act, 1897 but since the said Ordinance was a Provincial statute the above Act was not applicable to the instant case. 7. 1t is true that section 27 of the General Clauses Act is not applicable to the present case because the said Ordinance is a Provincial law whereas the said Act relates to the Federal laws but a presumption similar to the one arising under section 27 of the above Act can also be drawn under section 114 of the Evidence Act, 1872. It was not the case of the learned counsel for the appellant that the provisions of the Evidence Act could not be invoked by the respondent. As a matter of fact the said provisions were also relied upon in the case of Masood Sadiq referred to above. in view of the provisions of section 114 of the Evidence Act, therefore, it would be presumed that the notice in question did, in the ordinary course of events, reach Khalil-ur-Rehman who appears to have; appended his signatures on the acknowledgment receipt, Exh. P.

3. This presumption remained unrebutted because Khalil-ur-Rehman, did not come forward to deny the receipt of notice. The two tribunals below were, therefore, justified in holding that the notice in question was delivered to Kbalil-ur-Rehman.

8. What is now to be seen is whether the delivery of notice to Khalil-ur-Rehman would amount to its receipt by the appellant. Learned counsel for the respondent again relied on Masood Sadiq's ease to contend that the receipt of notice by Khalil-ur-Rehman would be deemed to be service of notice on the appellant inasmuch as, admittedly, both of them resided together and were closely related to each other a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was sent to a tenant and it was received by boy who had emerged from his house. The view taken by the High Court was that the receipt of the notice by the boy amounted to service of notice on the tenant. Learned counsel for the appellant did not cite any authority to the contract. Therefore, relying on the decision in the case of Masood Sadiq, I agree with the two tribunals below that the receipt of notice by the brother-in-law of the appellant constituted a valid service of the notice on the appellant.

9. It may also be pointed out here that the postman who deliverer to Khalil-ur-Rehman the letter (notice) meant for the appellant did s~ in conformity with law governing clause (c) of section 3 of the Post Office Act, 1898; `the delivery of a postal article at the house" of the, addressee "shall be deemed to be delivery to the addressee". It is in the statement of the appellant as R. W. 1 that Khalil-ur-Rehman, who receive his (appellant's) notice, lived to the same house in which the appellant was residing. Thus, the delivery of the notice to Khalil-ur-Rehman was in accordance with the provisions of law relating to the delivery of post: articles.

10. In view of the foreging discussion, I am unable to agree wit the learned counsel for the appellant that the service of notice, under section 13-A of the said Ordinance, on the appellant had not been duly proved and, therefore, the order of ejectment passed against him was nr sustainable.

11. Learned counsel for the appellant did not raise any other objection against the impugned order.

12. The appeal, therefore, fails and is dismissed with costs. The appellant is, however, allowed a period of four months to vacate disputed premises. K. M. A. Appeal dismissed