1980 PLP 73 (CLC)

Rasool Bux Umar for Respondents, Date of hearing : 31st August, 1977, This second appeal arising out of a very old rent case is directed against the order dated 13-6-1975 passed by the learned Ist Additional District Judge, Larkana whereby he set aside the order of the learned Rent Controller and remanded the case to the learned Rent Controller for further proceedings after holding that there existed relationship of landlord and tenant between the respondents and the appellants. The relevant facts are that a house No. 2335/82 situated in Ward B, in Larkana, was transferred to one Abdul Sattar Shaikh by the Settlement Department and a P. T. D. was issued to him on 3-2-1964. He sold the house to the respondent under a registered sale deed dated 24-10-1967. The respondents after purchasing the house sent notices under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to both the appellants by registered post A/D, treating appellant No. 1 Gul Hassan as the statutory tenant and his brother appellant No. 2, as his sub-tenant. The notice was served on the appellant No. 2 while notice to the appellant No. 1 Gul Hasan was returned with the endorse ment `refused', Both the appellants, however, failed to pay rent with the result that the respondents filed ejectment proceedings against them on the ground of default in payment of rent. The appellants in their written statement disputed the title of the respondents to the premises and denied all the assertions made in the application except that it was admitted that the notice under section 30 was received by the appellant No. 2 only. Appellant No. 1 denied that the notice under section 30 of the Act was offered to him and pleaded that he had been living in the house alongwith his three brothers. The learned Rent Controller thereafter framed five issues out of which those relating to the title of the respondents and service of notice under section 30 of the Act on the appellant No. 1 were taken up as preliminary issues and decided in favour of the respondent and the preliminary were directed by the learned Rent Controller by his order appellants 23-5-1970 to deposit the tentative rent. The appellants challenged the other in appeal which was also dismissed by the appellate Court on 2-11-1970 with the direction to the Rent Controller to pass fresh tentative rent order after hearing the appellants. Feeling aggrieved with the direction made by the appellate Court, respondents went in appeal before the High Court where, with the consent of both the learned Counsel, the orders of the Rent Controller as well as the appellate authority were set aside and the case was remanded to the Rent Controller to determine afresh whether there existed relationship of land lord and tenant between the parties and pass the tentative rent order thereafter, depending on the finding. On remand, the learned Rent Controller framed the issue regarding relationship of landlord and tenant between the parties as preliminary issue and both parties led evidence. The learned Rent Controller held that since endorsement regarding refusal of notice by the appellant No. 1 was not proved by examining the postal peon and no notice was served on the other two brothers who had been living in the house with the appellants' relationship of landlord and tenant between the parties was not established and, therefore, the eviction application was not maintainable and proceeded to dismiss it by his order dated 8-1-1975. In the appeal, learned Additional District Judge held that the appellant No. 1 being the only statutory tenant, no notice under section 30 of the Act was required to be given to all the other occupants of the house and since the envelope containing the notice to the appellant was correctly addressed and was returned with the endorsement by the postman that the appellant No. 1 refused to accept it, it was presumed to have been received by him and the notice stood served on him. It is against this order that the appellants have filed this second appeal. The main contention raised by the learned counsel for the appellants was that the appellate Court was wrong in interfering with the finding of the learned Rent Controller that section 30 notice was not duly served on the appellant No. 1 inasmuch as, the appellant No. 1 having denied in his written statement as well in his deposition on oath that section 30 notice was offered to him and that he refused to accept it the presump tion arising under section 114 of the Act was sufficiently rebutted and thereafter the burden shifted to the respondents to prove the service of the notice by producing the postman who had endorsed such refusal, and since the concerned postman was admittedly not examined, the service of the statutory notice was not proved and, therefore, the finding of the Court was unsustainable. In support of his contention, the learned counsel relied upon 1972 S C M R 251 and 1974 S C M R

136. Mr. Rasool Bux Unar, learned counsel for the respondents in view of the aforesaid Supreme Court authorities, found himself unable to controvert the contention raised by the learned counsel for the appellants and said nothing except that the respondents may be awarded rent for the premises for at least five years. The contention raised by the learned counsel for the appellant is no without force. Indeed after the appellant No. I had denied in his written statement as well as in his statement on oath in Court that the alleged notice was offered to him and he refused to accept it, it was obligatory on the respondents to have examined the postman to prove refusal of the letter by the appellant No. 1 and since they admittedly did not examine either the postman or anyone from the Postal Department 4 in this regard, it could not legitimately be held by the appellate Court that statutory notice under section 30 of the Displaced Persons (Land Settlement) Act, 1958 was duly served on the appellant No. I. For support, if any is needed, reference may be made to 1972 S C M R 251 referred to by the learned counsel for the appellants. The learned Rent Controller was, therefore, right in holding that notice under section 301 of the Act was not proved to have been served on the appellant No.

1. The learned Rent Controller was, however, not right in holding that besides the appellant No. 1, who was head of the family and used to pay municipal taxes etc., notice should also have been served on all the occupants of the house, as that was not the requirement of the law, as held by the first appellate Court below. Accordingly, I allow this appeal and set aside the order passed by the appellate Court below and maintain the order passed by the learned Rent Controller dismissing the eviction application on the ground that notice under section 30 of the Act was not proved to have been duly served on the appellant No.

1. There will be no order as to costs. Before parting with the case, I may mention that Mr. Zia Abbas, learned counsel for the appellants, very fairly and voluntarily stated at the end that he would see that the respondents are paid rent for the last five years on purely equitable considerations, and the learned counsel for the respondents felt satisfied with the statement. M. A. K. Appeal accepted.