P L D 1978 Lahore 193 (PLP)

The provisions of section 30 of the Displaced Persons (Compensation. and Rehabilitation) Act, 1958, being specific in nature would prevail as against the general provisions contained in the West Pakistan Urban Rent Restriction Ordinance, 1959, regulating the relationship of landlord and tenant. If the subject-matter of an ejectment application is a property which has been transferred out of the Compensation Pool then the provision as contained in section 30 would be applicable and in tire case of its noncompliance by the statutory tenant necessary order may be passed by the Controller. Section 13(2) of the Rent Restriction Ordinance would not be applicable to such property as against the specific conditions contained in section 30 of the Act. Muhammad Amin v. Jamshed Ali P L D 1967 Lah. 856 ; Ishrat Hussain and others v. Subedar alias Suba 1975 S C; M R 19 ; Muhammad Akram v. Dr. Ghafoor Muhammad 1974 S C M R 40 and Malik Abdul Aziz v. West Pakistan Publishing P L D 1965 Lah. 82 ref. Munir A. Sheikh for Appellants. Ch. A. Waheed Saleem and Riasat Ali for Respondent. Dates of hearing : 17th and 18th January 1977. The dispute relates to house bearing No. 1619-A, Kucha Lal Missar, Satthan, inside Bhati Gate, Lahore. It was permanently transferred to the respondent-landlord on 10-1-1970 under Settlement Scheme No. VIII. He thereafter issued notice to the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on 16-1-1970 which according to the respondent was served upon Umer Din, appellant No. 1, on 27-1-1970. According to the report made by the Process-Server, appellant No. 1 intentionally avoided to come before him and as such he refused to receive the process. The postman has also been examined as P. W.

1. He has stated that he knew appellant No. 1, Umer Din, for the last about sixteen years and since he refused to receive the process, therefore, he reported accordingly. He has further stated that since he intentionally avoided to come before him, though as a matter of fact he was present in his house, therefore, he reported about the refusal. The envelope as well as the copy of the notice, both, have been exhibited as P. 1 and P. 2, respectively. Since the appellants in spite of the notice having been served upon then.. did not pay the rent due from them, therefore, ejectment application was filed on 26-5-1970. The learned Controller as well as the learned lower Appellate Court, both, have decided the preliminary as well as the issues on merits against the appellants. Hence this second appeal.

2. The appellants, who received notice in regard to the ejectment application on 15-10-1970, raised preliminary objection in the written statement that since no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been issued to them, therefore, the ejectment application was not competent. They further averred that each one of the appellant, was in separate and independent portion of the house and as such required separate notice, and in the absence thereof the petition being incompetent was liable to be dismissed.

3. So far as the service of notice is concerned, both the Courts below decided the relevant issue against the appellants. They further held that since appellants Nos. 2 to 4 were the real sons of appellant No. 1 and were putting up in the same house, therefore, Umer Din, appellant No. 1, being head of the family, having been served upon, service under the law was complete. On merits it was held that since in spite of service of notice rent due was not paid, therefore, the appellants were liable to be ejected.

4. The learned counsel for the appellants, while referring to the report of the postman, Exh. P. 1, has argued that in the absence of clear refusal by appellant No. I to receive the notice he cannot be deemed to have been served upon ; according to the report he avoided to receive the notice and as such he cannot be deemed to have refused service. It has also been submitted that even if it is accepted for argument's sake that service was avoided on 27-1-1970, the ejectment petition should have been filed after the expiry of five months, after having accounted for the period of three months as provided under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and period of two months as provided under section 13 (2) (I) of the Urban Rent Restriction Ordinance. According to the learned counsel, the aforesaid period of three months should precede the expiry of period of two months as provided by section 13 of the Ordinance. He has relied upon an unreported judgment passed la limine on 17-11-63 in S. A. O. 15 of 1965 holding that period of sixty days as provided by section 13 of the West Pakistan Urban Rent Restriction Ordinance should be added to the period of ninety days as provided by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act and a tenant would be within his right to pay the arrears within the period of five months. 4-A. I am afraid. none of the contentions raised above has any substance. The report Ech. P. 1, as referred to above, made by the Postman has to be read in conjunction with his statement made before the Controller on 15-9-1971 while appearing as P. W.

1. The report says that appellant No. 1, Umer Din has deliberately avoided service and by his conduct he has refused to receive the notice. He has clarified this position in his statement by saying that appellant No. 1 was in fact in his house on all the occasions when he went to him for effecting service upon him sad since he refused to come out to receive the notice, therefore, he reported about his refusal. If we read the report alongwith his statement then it becomes clear that appellant No. 1 refused to receive the process and that is why the report regulated by the ordinary law only after the expiry of period of six years or on the occurrence of certain conditions specified in the section itself, one of them being default in the payment of rent by the statutory tenant. In that case, the tenant did not pay rent within the period of three months after the issue of notice under section 30 of the Act on the ground that the rent demanded was excessive. He, on the contrary, filed an application before the learned Controller under section 4 of the Ordinance for fixation of fair rent. It was held that such application was not maintainable under the law as against the specific provisions embodied in section 30 itself.

10. The same view has been taken in Malik Abdul Aziz v. West Pakistan Publishing Company (P L D 1965 Lah. 82)_ It has been held that in every case when a landlord, who is a transferee under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, invokes jurisdiction of the Rent Controller to eject a statutory tenant, he must prove that the provisions of subsection (3) of section 30 of the Act have been contravened. It has been further held that such tenant cannot be ejected like the ordinary tenant by a simple default on his part in the payment of rent to warrant an action of ejectment against him. It is necessary to give him an opportunity to remedy the default which he would be within his rights to do within three months after the receipt of the registered notice. If the landlord does not give the required notice, then there being no contravention of section 30 (3) of the Act he cannot invoke the jurisdiction of the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959.

11. The above discussion would show that the provisions of section 30 of the Displaced (Compensation and Rehabilitation) Act, 1958 being specific in nature would prevail as against the general provisions contained in the West Pakistan Urban Rent Restriction Ordinance, 1959 regulating the relationship of landlord and tenant. If the subject-matter of an ejectment application is a property which has been transferred out of the Compensation Pool then the provision as contained in section 30 ibid would be applicable and in the case of its non-compliance by the statutory tenant necessary order may be passed by the Controller. Section 13 l2) of the Rent Restriction! Ordinance would not be applicable to such property as against the specific conditions contained in section 30 of the Act. The contention of the) learned counsel for the appellants is, therefore, hereby repelled.

12. In view of the discussion made above, there is no force in this appeal which is hereby dismissed with costs. S.A H. Appeal dismissed.