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Second Appeal from Order No. 405 of 1966, decided on 16th

November 1966.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15‑Findings of fact by Authorities below‑Not open to reappraisal in second appeal.

(b) Displaced. Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑Notice under S. 30 proved to have been served‑Second notice of demand not necessary to deprive tenant of protection.

Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. P L D 1965 Lah. 82 and Jiando Khan v. Hakim Muhammad Ishaq P L D 1964 Kar. 61 ref.

E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 fol. Muhammad Tufail Dhami for Appellant.

Learned counsel contends that because the Acknowledgment Due receipt of the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, alleged to have been A. R, Sheikh served on the appellant has not been produced by the respondent J landlady, an adverse inference should have been drawn against her in view of illustration (g) to section 114 of the Evidence Act, and as such her petition for ejectment was not maintainable. I am not impressed by the argument. The notice in question is stated to have been served through a counsel, who has appeared as P. W. I and has stated that according to his recollection notice was served by him on the appellant under instructions from the respondent under the provisions of section 30 of Act XXVIII of 1958, and this notice was registered Acknowledgment Due. He has proved a copy of the notice (Exh. P. 1), retained in his office. It is also in evidence that the appellant executed the rent note in favour of the respondent after service of the notice. All this evidence has been believed by the two Authorities below and this finding of fact is not open to reappraisal in second appeal. The objection fails and is repelled.

2. Learned' counsel further contends that in any case because the default in payment of rent is alleged to have' occurred not within three months after the service of notice under section 30 but about two years later, a fresh notice of demand was necessary to vest the Rent Controller with jurisdiction, and in this regard he has referred me to the following extract from Malik Abduct Aziz v. West Pakistan Publishing Company (Private) Ltd. (P L D 1965 Lah. 82).

"The mere default, however, will not subject him to ordinary law. It has further to be proved by the landlord that he had given a notice for the payment of the rent but the tenant had failed to pay the same within three months. Unless, therefore, it is established that there was a notice of demand by the landlord by a registered post and the tenant had failed to pay the amount within the said period of three months, there cannot be a contravention of subsection (3). If on the aforesaid notice given by the landlord, the tenant does not pay the rent within the specified period, the landlord can proceed against him under the ordinary law, because in that case the provisions of section 30 (3) (i) would be contravened. On the contrary, if after the notice, the tenant has paid the rent, the landlord is left with no cause of action to proceed against the tenant under Ordinance VI of 1959. If subsequent to this, a default is committed by the tenant, the landlord again must give him a notice because if he does not do so and files a petition, the petition is liable to be dismissed on the ground of lack of jurisdiction for the reason that the Rent Controller under the ordinary law can assume jurisdiction in such cases only if it is proved that the provisions of section 30 (3) (i) have been contravened."

He further argues that the observations:

"It may not be necessary to serve such a notice of demand each time there is a default but, at any rate, at least one notice of demand has of necessity to be served to deprive the tenant of the protection. The decision of the Karachi Bench of the High Court of West Pakistan in the case of Jiando Khan v. Hakim Muhammad Ishaq (P L D 1964 Kar. 61) cited by the learned counsel for the respondent does not lay down any different principle. In that case the notice actually served was a combined notice and, therefore, satisfied the requirements of section 30. If this decision intended to lay down that the service merely of the first notice under proviso (b) would be sufficient to deprive the tenant of the protection, if thereafter he did not pay rent regularly, then it cannot be held to have laid down the law correctly. One notice of demand is at least necessary for the protection to be lost and that too from the expiry of the period of three months from the date of receipt of such a notice of demand. Unless such a notice of demand is given, the commencement of the period of three months cannot be fixed."

In E. A. Evans v. Muhammad Ashraf (P L D 1964 S C 536) being of the nature of a tentative opinion is not the law declared and as such this Court is free to interpret the provisions of section 30 of Act XXVIII of 1958, in consonance with the view taken is Malik Abdul Aziz v. West Pakistan Publishing Company (Private) Ltd. In support of this latter contention he 'relies on the following view expressed in: A. M. Khan Leghari v. Government of Pakistan (P L D 1965 Lab. 214):‑

"Although the above remarks are, of course, entitled to the utmost respect, they are only in the nature of a tentative opinion and I therefore feel myself free to examine the question independently."

I feel bound by the dictum of their Lordships of the Supreme Court in E. A. Evans v. Muhammad Ashraf and without entering into the controversy raised in the Full Bench decision I hold that no second notice of demand under section 30 of Act XXVIII of 1958, was necessary in the case.

3. It has been lastly contended that discretion should have been exercised in favour of the tenant for the reason that the appellant has been in occupation of the premises as a tenant from his very birth. The circumstance is not sufficient enough to call for any interference at the second appellate stage.

4. The appeal fails and is dismissed in limine.

K. M. A.

Appeal dismissed.

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