1986 PLP 1923 (CLC)

Date of hearing: 16th February, 1986. This appeal is directed against the order of the Rent Controller, Shikarpur, dated 27‑10‑1984 whereby he directed the appellants to hand over vacant possession of the disputed premises to the respondents within two months. The brief facts of the case are that the house bearing City Survey No. 23/35 situated at Station Road, Shikarpur was transferred to one Ikramullah by the Settlement Department on 12‑12‑1968. Ikramullah sold the same to Saghir Ahmed who sold it to the respondent by registered sale‑deed, dated 29‑5‑1974. The respondents served the appellants with a notice under section 30 of Displaced Persons Act, 1958 on 15‑1‑1975. The respondents however did not tender any rent whatsoever to the respondent nor did they care to reply to the notice of the respondents. Hence the respondents filed this ejectment application under section 13 of the West Pakistan Rent Restriction Ordinance, 1959 on 23‑6‑1975. The application was contested by the appellants on serveral grounds. The written statement which was filed by appellant No. 1 and adopted by appellant No. 2 who happened to be his real brothers contend total denial of almost all the allegations made in the application. Besides several legal objections relating to the want of jurisdiction, non‑existence of relationship of landlord and tenant between the parties and absence of notice under section 30 of the Displaced Persons Act were taken. The learned Controller recorded the evidence of the parties and heard the arguments of the counsel for both the sides and allowed the ejectment application on 17‑9‑1981. He ordered the ejectment of the appellant from the disputed premises. Against this ejectment order, the respondent came in appeal to this Court. My brother Ajmal Mian, J heard the appeal and set aside the ejectment order and remand the case to the learned Controller with the direction that respondents be given an opportunity to summon postal authorities on the point of service of notice upon the appellant. On remand of the case the respondents examined postman Allah Warrayo and brought through him on record that he had delivered the two registered envelopes containing the said notices to Adam respondent No. 2 and obtained his signature on the Acknowledgement Due receipts. The postman also stated that respondent Adam was previously known to him in person. The respondents filed affidavits of opponents Khuda Bux and Adam alongwith true copy of P.T.I. certificate and Identity Card and Driving licence of Adam. In the affidavits, it was denied that the notice was ever tendered to Adam or that the signature thereon were of Adam. It was asserted in the affidavits that Khuda Bux was the elder brother and he was in occupation of the premises as the main occupant. It was further asserted that the second name of Adam was Faiz Muhammad and that he did not know English and that he could read Sindhi and used to put his signature in Sindhi as Faiz Muhammad. The signature purporting to be of Adam in English on A/D receipt was forged and fabricated in collusion with the postman who had given false evidence at the instance of respondent. It was requested that the signatures of Adam on Identity Card and Driving licence may be compared with the disputed signature on Acknowledgement Due receipts. These affidavits were however not included in the evidence on an objection raised by the Advocate for the respondents. An application was also submitted by the counsel for the appellants for summoning a clerk from the Postal Department in order to ascertain whether Allah Warrayo Postman was or was not assigned the duty of the beat in question. This application was also dismissed by the learned Controller. After taking into consideration the evidence of postman as well as the evidence which was produced by the parties at the time of initial trial, the learned Controller came to the conclusion that the respondent had served the appellants with a notice under section 30 of the Displaced Persons Act as alleged by them. He also held that the opponents had not paid or tendered any rent whatsoever to the appellant within three months of the said notice. He, therefore, allowed the ejectment application and directed the appellants to hand over the vacant possession to the respondents within two months as already stated above. Mr. Mazhar Ali M. Siddiqui, Advocate for the appellants submitted that the learned. Controller by not allowing him to rebut the evidence of postman and by not comparing the signatures of Adam on Driving licence and Identity Card with the disputed signatures on the Acknowledgement Due receipt had violated the fundamental principles of natural justice and the order of ejectment is, therefore, liable to be set aside. The arguments of Mr. Mazhar All Siddiqui do not hold any water. Postman Allah Warrayo was not brought by respondents on their own but he was summoned through the Court when the case was remanded by my learned brother Ajmal Mian, J to the Controller for giving an opportunity to the respondent to lead the evidence of the postal authorities. It appears tnat the summons which were issued in this behalf initially were addressed to the postman Ward No. 23, Opposite City Magistrate's Court. Station Road, Shikarpur and were received in the, office of Sub‑Postmaster, Shikarpur on 14‑6‑1984 at 1315 hours. The Sub‑Postmaster in reply wrote the following letter and endorsed its copy to the learned Controller. "An original summon RA No. 9/1984, dated 14‑6‑1984 received today from the Honourable Court of Senior Civil Judge and Rent Controller Shikarpur is submitted herewith for favour of disposal. The proper house No. of the address of Ward No. 23 is not mentioned in the summon as the date delivered of this ward by two postmen (Beat Nos. 6 and 7). However it is presumed that this area fallen in beat 7 and Mr. Allah Warrayo Soomro was the Postman in this beat and who is now retired residing at Mohallah Shikarpur. Necessary action is The perusal of this letter reveals that it was the Sub‑Postmaster who brought it to the notice of the respondents that Allah Warrayo was the postman of the beat and, therefore, Allay Warrayo was summoned by him, who gave evidence as shown above. It would, therefore, appear that Allah Warrayo Postman's evidence is that of an official witness and summoned through his department in the ordinary course and, therefore, should not be likely to brust a side. He has claimed that he had served the A/D letters on the appellants and had tendered the same to the appellant No. 2, who was personally known to him. Shikarpur is a small town. The claim of Allah Warrayo Postman that he personally knew Adam appears to be reasonable, specially because Allah Warrayo is an old Postman and has given his age as 55 years, therefore, there is nothing improbable in his claim. Mr. Mazhar Ali Siddiqui had attacked the evidence of Allah Warrayo as inconsistent on the ground that at one place he has stated that he was Postman of the Station Road, Shikarpur covering both the sides of the road whereas in his cross‑examination he had admitted that there is one postman on one side of the Station Road and another postman on other side of the Station Road. From this he meant to point out that Allah Warrayo was not the Postman of the beat wherein the disputed house was situated. This argument does not appear to be correct, because Allah Warrayo has not stated that the postman on one side of the road does not share any portion from the other side of the road, but even if it is assumed as correct then too there is nothing to show that the house in question does not come within the beat of Allah Warrayo. It may be remembered that it was the postal authorities who had pointed out to the Court that Allah Warrayo was the relevant Postman, he had served these registered acknowledgement due on the addressees. The next contention of the learned counsel for the appellants that the Postman should have brought the order allotting the beat, in which this house was situated, to him, is also not tenable as there was no such direction in the summons which were issued to the appellant. Apart from that it was not possible for the Postman to bring an order passed more than 10 years ago allotting the beat to him, the Postman. The fact that the affidavits were not taken into consideration makes no difference because even if we take these affidavits into consideration, they do not stated anything new. The appellants had denied the service of notice under section 30 in their written statement as well as evidence. At that very time they have an opportunity to say that the signature of Adam alleged to be on acknowledgement due receipt was forged. Both these acknowledgement due receipts were filed by the respondent alongwith their ejectment application and they bore the signature of Adam in English. The written statement which was filed by the appellants while denying the fact of service of notice generally does not specifically mention that the so‑called signatures of Adam were forged and that he did not know English or had never signed his name in English as Adam. So far as the contention that the learned Controller did not compare the signatures of Adam on the Identity Card and Driving licence with the disputed signatures on the acknowlegement due receipts is concerned, it is sufficient to say that the question of comparing these two sets of signatures does not arise at all, because one set of signature is in Sindhi and is in the first name of appellant No. 2 i.e. Faiz Muhammad while the second set of signature is in English and is another name of appellant No 2 i.e. Adam. Hence it was not possible for the Court to find out the similarities or dissimilarities in these two sets of signature which were in different scripts and of different names. Mr. Mazhar Ali Siddiqui. then submitted that even the present respondents had sold the house to some body else who have not been joined as party. He submitted that it was incumbent upon the respondents to join the new landlord as party. Not only that but the new landlord should have given a notice under section 13‑A of the change of ownership and if the appellants failed to send the rent to them in response to that notice then alone, they could have come and filed ejectment application. I am afraid that I cannot agree with this submission as well. Similar situation had arisen in the case of Abdul Rauf v . Nawab Ali reported in P L D 1986 Kar.

117. The decision in this case was given by me, it will be useful to reproduce the relevant passages from the same which are as under:‑ "It was next contended by Mr. Kamaluddin, that the fact of~ transfer of the ownership had not been intimated by either the old landlord or the new transferee to the Court in time and the rent proceedings were continued by the old landlords in spite of the fact that they had ceased to be the owner. Hence the proceedings became void. In this connection it was pointed out that ejectment application was filed on 16‑7‑1977. Final order of ejectment was passed by the Controller on 3‑9‑1983. The premises were sold on 30‑10‑1982. Hence from 30‑10‑1982, upto 9‑8‑1984, when the application was made for bringing of new owners on record, the proceedings were continued by respondents Nos. 1 and 2 who had ceased to be the owners, and landlords of the premises. With this contention of the appellant's counsel also I do not find myself in agreement. It is a settled law that where default has been committed by a tenant during the days of the previous landlords, such default subsists, for the benefit of the subsequent owner as well. Mr. Andlib, Advocate cited 1980 C L C 1223 in which landlord had sold the shop during the pendency of the ejectment application which was filed on the ground of subletting amongst others. It was held that the purchaser can continue the proceedings as the ground of subletting was not personal to the first owner. In another ruling reported in 1979 C L C 757, 'X' bought a shop from 'Y'. While shop was still owned by 'Y' the tenant had illegally sublet it to another person. After purchasing the shop 'X' filed ejectment application. It was held that the fact that 'Y' had not filed ejectment application was meaningless. The right of filing application on the ground of subletting enures to the benefits of the new owner that is 'Y'. The next ruling which was cited on this point by the counsel for respondent was P L D 1976 Kar.

53. In this case ejectment of tenant was sought on the ground of default in payment of rent. The tenant filed an appeal. The property was sold by the tenant during the pendency of appeal. It was held that the new landlord could step in the shoes and continue the appeal. In yet another ruling reported in P L D 1962 Dacca 600, the property was purchased by a new owner during the pendency of the suit. That suit continued in the name of the old owner. New owner filed an application under Order 1, rule 10, C.P.C. read with Order XXII, rule 10, C.P.C. during the appeal. It was held that his having not filed application during the pendency of the suit was immaterial. In the case under ruling the previous owner had died and the legal representatives were not brought on record during the period of 90 days. The other party contended that the appeal had abated. It was thereon that the new purchaser had made the above application. Another ruling reported in AIR 1946 Lah. 33, is also on similar lines. In A I R 1955 S C (Ind.) 376 the plaintiff had instituted a money suit against the defendant. During the pendency of the suit, the plaintiffs transferred all their debts and credits to 'X'. The suit continued in the name of original plaintiffs and was decreed. Later on ' X' filed Execution Application It was held that he was entitled to do so." Finally a reference was made by Mr. Mazhar Ali Siddiqui to the affidavit filed by Andal Lal Attorney of the petitioner and it was alleged that the same was not on oath and, therefore, it should be excluded from the evidence. I do not find any substances in this arguments also because no such objection was taken either before the learned Controller or at any earlier time or stage. Apart from the Rent application was verified on oath. The cross‑examination of the attorney and path. The oral evidence of respondents was supported by documentary evidence as well as admissions by the appellants. Therefore, no useful purpose will be served even if the examination‑in‑chief of Andal Lal contained in the affidavit is excluded. All the facts which are necessary to sustain the order have already been brought on record and the decision of the Rent Controller has been fully substantiated by the same. I, therefore, do not find any reason to interfere with the order of the Rent Controller. These are the reasons for which I had dismissed this appeal by my short order today. A . A . Appeal dismissed.