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Civil Petition for Special Leave to Appeal No. 63 of 1973, decided on 4th October 1973.
(On appeal from the judgment and order of the Lahore High Court, dated the 20th December 1972 in S. A. O. No. 373 of 1972).
‑‑ S. 114‑Person in occupation of property transferred to another under Act XXVIII of 1958 proceeded against under S. 13 of Ordinance VI of 1959 after service of notice under S. 30 of Act XXVIII of 1958 by transferee‑No denial on oath before Court about non‑receipt of notice under S. 30‑No need in circumstances to examine postman to prove refusal to take delivery‑Presumption under S. 114, Evidence Act, 1872 could be raised‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13 read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30.
Begum Humayun Zulfiqar Ismail and another v. Begum Hamida Saadat Ali 1968 S C M R 828 and Gulzar Begum v. Mst. Sairah Bibi 1972 SCMR251ref.
Ch. Muhammad Hussain, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 4th October 1973.
The respondents filed an application under de section 13 of Ordinance VI of 1959, against Fazal Elahi. Fazal Elahi died during the proceedings and the petitioner was substituted as his legal heir. It was alleged against Fazal Elahi that he had agreed to pay monthly rent at Rs.40 but later failed to pay the same with effect from December, 1965. It was further pleaded that the premises was required also for the personal use of the respondents. It was alleged against Fazal Elahi that a statutory notice under section 30 of Act XXVIII of 1958, was given to him and it was served on him. He refused to take it. The learned Rent Controller relied on presumption available under section 27 of the General Clauses Act, and held that the notice shall be deemed to have been served in due process of law and directed ejectment of the petitioner from the premises in dispute. The petitioner challenged this order in appeal before the learned District Judge, Rawalpindi, which was dismissed on the 4th November, 1972. The petitioner filed an appeal against the order of the learned District Judge which has been dismissed by a learned Single Judge of the Lahore High Court, by judgment dated the 20th December 1972. The petitioner seeks permission to file an appeal against the said judgment.
Ch. Muhammad Hussain, learned counsel for the petitioner, has portended that in the application .for ejectment, the respondents had alleged contractual tenancy between the parties. According to him, all the Courts below have held that there was no contractual tenancy, and there was statutory tenancy between the parties. He further contended that notice under section 30 was served on Fazal Elahi and that the respondents should have produced the postman to prove that the notice was refused by the deceased. In support of his contention, he has relied on Begum Humayun Zulfiqar Ismail and another v. Begum Hamida Saadat Ali (1968 S C M R 828) and Gulzar Begum v. Mst. Salrah Bibi (1972 S C M R 251). The contention of the learned counsel has not impressed us. It is true that Fazal Elahi had denied the receipt of the notice in the written statement but nobody denied the receipt of the notice on oath before the Court. In these circumstances, the 'High Court was right in observing that there was no need to produce the postman. In our opinion also, there was a presumption under section 114 of the Evidence Act that the notice had been served on Fazal Elahi and that it was for the respondent to prove that it was not served. In these circumstances, the ejectment order against the petitioner is quite justified There is no ground to interfere. The petition is dismissed.
Leave refused.
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