1977 PLP 219 (SCMR)

MUHAMMAD GUL, J.‑This appeal by special leave is from the judgment of the High Court dated 14‑9‑1972 dismissing in limine second appeal under section 15 of West Pakistan Ordinance VI of 1959 and thereby confirming the orders of the Courts below for the appellant's ejectment from house No. 218, Ward No. 7‑M, Multan City, once an evacuee property, but transferred to the respondent under Act XXVIII of 1958. The respondent sought the appellant's ejectment on account of default in the payment of rent and for subletting and that the respondent required the premises for her own b9na fide personal use. The appellant pleaded want of notice under section 30 of the Act and denied allegation of default in the payment of rent or that the respondent needed the premises for her bona fide personal requirement. The learned Rent Controller after hearing the evidence of the parties found that the respondent duly served the appellant with notice and that the latter had defaulted in the payment of rent from August 1963 to April 1965 and therefore, was liable to ejectment. On the remaining issues in the case he found against the respondent. On appeal by the appellant the learned District Judge came to the conclusion that it was otiose to record any finding on the issue regarding the statutory notice under section 30 of 1958 Act for the tenancy commenced under a rent note executed by the appellant in the respondent's favour on the 6th June 1961 during the pendency of earlier ejectment proceedings against the appellant in the course of which parties reached a settlement and the case was disposed of in terms of the settlement. Accordingly, the learned District Judge distinguished the majority decision in Evan's case (P L D 1964 S C 536). The learned District Judge however, confirmed the finding of the Rent Controller that the respondent had defaulted in the payment of rent and therefore, maintained the order of his ejectment. The High Court concurred in the above findings. Leave was granted to consider whether the rule laid down in majority decision in Evan's case was not attracted to the instant case? Mr. B. A. Saleemi, learned counse1 for the petitioner stressed that there was nothing on the record to show that the respondent had issued a valid notice satisfying the requirements of section 30 of the 1958 Act and that being a condition precedent for the creation of the statutory tenancy which was missing in the instant case, the relationship of landlord and tenant did not subsist between the parties and therefore, the appellant was not liable to ejectment. The argument conveniently ignores the fact that the respondent relied on a registered three months' notice which was issued by her counsel to the appellant which clearly stated that that was being given under the settlement law. The notice was in Urdu and a copy of which is at page 6 of this Court's record. However that may be, there is nothing to show much less there is any proof that the appellant was in possession of the premise in dispute at any time prior to the 20th December 1958 so as to avail to him the privileges of a statutory tenant under section 30 of the 1958 Act. On that view of the matter, we do not find any merit in this appeal which is hereby dismissed. Since the respondent has not appeared, we matte no order as to cost. Appeal dismissed.