1980 PLP 203 (CLC)

S. 13-A read with Evidence Act (I of 1872), S. 114 and General Clauses Act (X of 1897), S. 27-Service-Presumption-Notices received back with endorsement of refusal-Addressees not appear ing as witnesses to deny service

Held, presumption arises against addresses of having refused service and of being served. Gulzar Begum v. Mst. Sairah Bibi 1972 S C M R 251 distinguished. Sh. Sikandar 1gbol for Appellant. Rashid Masood Gangohi for Respondent. Date of hearing : 7th July, 1979. This order will dispose of S. A. O. 678/76 and S. A. 0. 679; 76.

2. The only point in this cast is about the mole of service of a notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance. The property in dispute in both the cases was purchased by the respondent and thereafter notices under section 13-A of the Ordinance were sent to the appellants calling upon them to pay the rent to the respondent. These notices were received back with endorsements of refusal. In view of this they were held to have been duly served by the respondent. Since the appellants had admittedly not paid (any rent to the respondent. they were directed to be evicted by the Rent Controller and that order was maintained in appeal.

3. These appeals were admitted to a regular hearing on the ground that in view of Gulzar Begum v. Mst. Sairah Bibi (1972 S C M R 251) the categorical denial made by Zaheer-ud-Din one of the appellants in S. A. O. 679/76 that the notice was never served upon him, is sufficient for making it necessary for the respondent to examine the postman concerned who had made the report of alleged refusal.

4. This argument is without force. The appellant in S. A. O. 678/7 did not make any such assertion. No such assertion could be made by Zaheer-ud-Din on behalf of Nasir-ud-Din or on behalf of Mst. Siraj Bibi appellants. This was a matter in which these two persons should also have appeared as witnesses since it could be only within their knowledge. As against Nasir-ud-Din and Mst. Siraj Bibi at least a presumption arise under section 114 of the Evidence Act read with section 27, General Clauses Act that they had refused service and had thus been duly served. The postman must have gone to the house of Nasir-ud-Din and Zahir-ud-Din. In these circumstances it is not possible to believe the evidence of Zaheer-ud-Din that he had not refused to accept service or that the postman never approached him. Gulzar Begum's case is also distinguish. able. In that case the service was not of refusal but it was a persona service. The acknowledgement due receipt was duly signed, but the signatures were denied. It was in these circumstances that it was sat that the postman who had served notice upon the appellant in that can should have been examined and the case remanded for his examina tion. I agree with the learned Courts below that' the appellants were duly served with notices.

5. There is no merit in these appeals and are dismissed with costs. K. M. A Petition dismissed,