1983 PLP 2610 (CLC)

Sayed Madad Ali Shah for Appellant. Muhammad Jamil for Respondent. Date of hearing : 4th February, 1982. The appellant has challenged the order of eviction passed against him by the Rent Controller and confirmed in appeal by the 4th Additional District Judge, Karachi acting as the first appellate authority under the West Pakistan Urban Rent Restriction Ordinance, 1959. Property bearing Nos. SOLB 2/8‑VII‑E/95, 2/2 and 3/1 was trans ferred to the respondent by virtue of a provisional transfer order dated 31st December, 1964, followed by a permanent transfer order dated 12th May, 1971. It is alleged by the respondent that before institution of evic tion proceedings against the appellant a notice under section 30 of the D. P. (Compensation and Rehabilitation) Act, was served upon the appellant as required under the law. In his application for eviction the respondent had sought eviction of appellant on the ground of non‑payment of rent, subletting and damage caused to the property. The Rent Controller before proceeding with the case on merits framed a preliminary issue with regard to the service of notice under section 30 of the D.P. (Compensation and Rehabi litation) Act and came to the conclusion that the required notice was duly served upon the appellant and accordingly held that Rent Controller had the jurisdiction in the matter. The issues regarding non‑payment of rent and damage to the property were decided in favour of respondent when issues regarding subletting was decided in favour of appellant. As a result of the findings of Rent Controller on issues No. 1 and No. 2 in favour of respondent the eviction application was granted and order of ejectment was passed against the appellant. The first appellate authority under the Rent Restriction Ordinance confirmed the decision of Rent Controller. The learned counsel for the appellant challenged before me the findings of the two Courts below on, the, question of service of notice under section 30 of the Act. It is firstly contended that the endorsement on the envelope containing the notice (Exh. 8) produced in evidence does not show that the notice was served on the, appellant. Alternatively it is urged by the learned counsel that the notice which was allegedly served upon the appellant did not fulfill the requirement of law. I have seen the original envelope which contained the alleged notice under section 30 of the D. P. Act and the endorsement of the postal authorities thereon. According to the endorsement on Exh. 8, the postman concerned made several attempts to serve the notice on the appellant but on all occasions he was not found in the premises. The Rent Controller as well as the first, appellate authority found the above endorsement of postal authorities as equivalent to refusal and held that the notice was served on the appellant. The appellant's counsel has therefore, rightly‑ contended that no notice under section 30 of the D. P. Act was served out he appellant, The alternate submission of the counsel for the appellant that the alleged notice under section 30 of the D. P. Act was' not in accordance with the law is also not with out force. In the notice dated 24th May, 1971 (Exh. 7) which is claimed by the respondent as a notice under section 30 of the D. P. Act, the appellant is described as an unauthorised occupant of the premises and mesne profit are claimed by the respondent at the rate of Rs.50 per month. It is, therefore, clear that the appellant, was not treated ‑ as a tenant of the premises and notice of demand as contemplated under the law was served on the appellant before institution of the rent case. The two Courts below, were, therefore, wrong in holding that the notice under section 30 of the D. P. Act as required under the law was duly served on the appellate before institution of rent case. This however did not conclude the matter finally and the rent application could not be dismissed by the Rent Controller for want of notice under section 30 of the D. P. Act in the present case as ejectment of appellant was not sought on the only ground of default but allegations of subletting and damage to the property were also made against the appellant which bad to be investigated by the Rent Controller, irrespective of the fact whether notice under section 30 of the D. P. Act was served or not, as in the event of a finding in the affirmative on issue of subletting and damage to the property the provisions of service of notice as contained in clause (b) of subsection (1) of section 30 of the D. P. Act would not apply. Both the Courts of Rent Controller as well as the Additional District Judge, acting as first appellate authority have found that the appellant has committed acts which were injurious and has da maged the property in his occupation. The learned counsel for the appellant contends that this finding of the Rent Controller is erroneous as the evidence on record is not sufficient to sustain this conclusion. It is submitted by the learned counsel that the appellant in his evidence before the Controller had denied that any damage or injury was caused the property by raising any construction after transfer of the property too respondent. The respondent on the contrary in his evidence before the Rent Controller categorically stated that the appellant bad damaged 'the roof of the premises by raising unauthorised construction and as a result thereof the roof is leaking. Evidence was also produced by the appellant before the Controller to show that K. M. C. bad issued notice to appellant for removal of unauthorised construction raised by the appellant, in 1973. The appellant did not ask any question in cross- examination to challenge the above assertion of respondent with regard to the damage caused to the property by the appellant. In this view of the evidence the inference of damages to the property drawn by the Rent Controller and the first appellate authority can neither be termed as perverse nor could it be described as based on misreading of evi dence. The interference by this Court in second appeal on question of fact is confined to those cases alone where the finding is based on misreading of evidence or the finding is arrived at in ignorance of material piece of evidence on record or the appraisal .of evidence by the Courts below was perverse. The learned counsel for appellant was unable to ‑ point out any such defect in the findings of Courts below. The Courts below having found that the appellant had damaged the property in his occupation after transfer of the property in favour of respondent; the protection available to appellant under section 30 of the D. P. (Comp. & Rehab.) Act, 1958 was gone and the application for ejectment was to be governed in accordance with the normal law. The admitted position in the case is that no rent was paid by the appellant from 24th May, 1971 till the passing of tentative rent order by the Rent Controller. In the circumstances, the Courts below were justified in holding that .the appellant had committed default in payment of rent. The learned counsel lastly contended that the landlord having des cribed the appellant as an unauthorised occupant in her notice under section 30 of the D. P; Act was not entitled to file application against him under section 13 of the Ordinance. This contention has no force. The appellant in his written statement before the Controller had objected to the jurisdiction of Court on the ground of absence of notice under section 30 of the D. P. Act. Such a notice can only be claimed by a tenant of the property. The appellant was treated as tenant of the property by the respondent and he was described so in the ejectment application. The appellant never denied his status as a tenant of the property and on the contrary by taking the plea of notice under section 30 of the D. P. Act he confirmed this position. The plea now taken by the learned counsel for the appellant in second appeal that the appellant was not the tenant of the premises has therefore, no substance. I, therefore, see no reason to interfere with the orders of the Courts below and dismiss the appeal with costs. The appellant is allowed four months' time to vacate the premises. M.Y.M. Appeal dismissed.