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Civil Appeal No. 37 of 1972 in C. P. S. L. A. No. 104 of 1972, decided on 23rd June 1972.
(On appeal from the judgment and order of the Lahore High Court, dated the 9th March 1972, in S. A. O. No. 92 of 1969).
West Pakistan Urban Rent Restriction Ordinance (VI of 1959),
S. 13 read with Displaced Persons (Compensation arid Rehabilitation; Act (XXVIII of 1958), S. 30‑Ejectment petition by transferee of house on ground that occupant of house, after receipt of notice under S. 30 of Act XXVIII of 1958 defaulted in payment of rent‑Occupant admitting notice properly addressed in her name and than none else in Mohallah had same name‑Occupant, however, denying receipt of letter or that acknowledgement receipt bore .hey signature Presumption of service of notice, in circumstance, held rebutted‑Court, in circumstance, bound to get signature compare with admitted signature of occupant and further bound to give opportunity to owner petitioner to produce postman to prove deliver of letter to occupant and that receipt bore her signature‑Case remanded by Supreme Court.
Ch. Muhammad Hussain, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.
Ch. Khalil‑ur‑Rehman, Advocate‑on‑Record for Respondent.
Date of hearing : 23rd June 1972.
The dispute between the parties in respect of property No. C/95, Ihata Bulaqi Shah, Gumti Bazar Lahore. This was an evacuee property which was transferred to the respondent on the 24th February 1960. The respondent who is alleged to have given a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, filed a suit for eviction on the ground that the appellant has failed and neglected to pay the rent. The Rent Controller framed two preliminary issues namely :‑
(i) whether the respondent has served a valid notice upon the appellant as required under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and
(ii) whether P. T. O. dated the 24th February 1960, has ceased to be operative. If so, from which date and with what effect from these proceedings.
In support of the point whether a notice has been served or not, the respondent relied on a notice alleged to have been sent to the appellant. The appellant admitted that the notice was properly addressed and that there was no other person of that name in Mohallah. She, however, denied that it has been received by her or that the acknowledgement receipt bore her signature. On this evidence the Rent Controller held that the notice as required under section 30 of the Displaced Persons Act has been served and the appellant has failed to rebut the presumption of the‑ service of the notice. This view was also upheld by the District Judge and the High Court in Second Appeal S. A. O. No. 92 of 1969. The petitioner now seeks permission to file an appeal against the said order.
By consent of the parties, the petition is treated as an appeal. The record of the lower Courts has been summoned and has been perused.
After hearing the learned counsel for the parties we are' satisfied that in the present case, the appellant has rebutted the presumption by appearing in Court and by denying the service of the notice. In these circumstances, the trial Court should have got the signature of the appellant compared with the signature on the admitted documents. It should have further given an opportunity to the respondent to produce the postman to prove that the notice and the acknowledgement due was offered to the appellant for service and that she signed it. In view of this, the learned trial Court has failed to approach the matter in accordance with law and has fallen into an error. We would, therefore, set aside the order of the learned trial Court dated the 13th September 1968 and remand the case back to him for decision of the case in the light of the above observation.
In the result, the appeal is allowed. The parties will bear their own costs. The record of the case would be immediately sent to the trial Court.
Appeal accepted.
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