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Civil Petition for Special Leave to Appeal No. 715 of 1977, decided on 20th July 1978.

(On appeal from the order dated 21st November 1977 of the Lahore High Court passed in Second Appeal from Order No. 603 of 1977).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑

‑‑ S. 15(4)‑Second appeal‑‑Question of fact found against tenant by Rent Controller and District Judge‑‑Held, cannot be successfully agitated in course of second appeal ‑.Civil Procedure Code (V of 1908), S. 100.‑[Second appeal].

M. Ahmad Hassan Khan, Advocate Supreme Court and Mahmood A. Oureshi, Advocate‑ on‑Record for Petitioners.

Hassan Muhammad Naqvi, Advocate Supreme Court and Raja Abdur Razzaq, Advocate‑ on‑Record for Respondents Nos. 1 and 2.

Date of hearing : 20th July 1978.

:‑This petition for leave to appeal is directed against the order passed by a learned Judge of the High Court dismissing the second appeal ( S. A. O. No. 603 of 1977) filed by the petitioners against the order of their ejectment.

The facts, briefly stated, are that the respondents were transferred the house in dispute (bearing property No. S‑83‑R‑46), situate at Lake Road, Lahore, by the Settlement Department, sometimes in June 1974. The petitioners, who were occupying this property, were served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, intimating the factum of transfer and calling upon them to pay rent at the rate of Rs. 100 per mensem. However, notwithstanding the issuance of the notice no rent was paid for a period of about two years. The respondents were, accordingly, constrained to file an ejectment petition against the petitioners on the ground of default in the payment of rent.

The petition was resisted and on the pleadings of the parties the following issues were framed:‑

(1) Whether notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was served upon the appellants

(2) Whether the relationship of landlord and tenant exists between the parties

The learned Rent Controller found both the issues in favour of the respon dents and accepted the petition and passed the eviction order against the petitioners directing them to hand over the vacant possession of the house to the respondents within one month. This order was challenged by the petitioners before the Additional District Judge, Lahore, by an app‑.al, which was also dismissed. Against both the orders of the Rent Controller and the Additional District Judge, a second appeal (S. A. O. No. 603 of 1977) was filed, which, too, was dismissed by a learned Judge of the High Court on 21‑11‑1977. Hence this petition for leave to appeal.

Mr. M. Ahmad Hassan Khan, in support of this petition, urged only two submissions before us; firstly, that the notice under section 30, which was allegedly served on Shahida Naseem, daughter of one of the petitioners was not proved to have been actually received by her, hence the service of notice was not proved, and, secondly, the finding of the learned Judge in the High Court that after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the requirement of service of notice under section 30 no longer existed, was an erroneous view of the law.

So far as the first contention is concerned, it is admitted that Mst. Shahida Naseem is the daughter of one of the petitioners. The objection, however, is that she being an illiterate lady could not have signed the acknowledgment due card and hence she could not possibly be said to have received the notice. The Courts below found that Mst. Shahida Naseem had studied up to the sixth class and, therefore, could be expected at least to sign her name. We also observe that she was not produced as a witness to testify on the question whether the signatures on the acknowledgment due card were hers or not, nor was any effort made to produce any Expert's evidence on this question. Moreover, the question being one of fact, which has been found against the petitioners by the Rent Controller and the District Judge, could not have been successfully agitated in the course of second appeal. .

Coming to the second submission, the property appears to, have been transferred in favour of the respondents before the 1st of July 1974 and the ejectment of the petitioners was sought on the ground that they bad made default in the payment of rent from June 1974 to July 1976. The Displaced Persons (Compensation and Rehabilitation Act was repealed by the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 (XV of 1974), promulgated on 30th September 1974. The said Act was repealed with effect from 1‑7‑1974. The contention is that since the property was transferred in June 1974, the rights and liabilities acquired by the transferees as well as the occupants of the property had to be ad indicated with reference to the provisions of the repealed Act and, therefore, compliance with the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was essential. We do not consider it necessary to go into this question because we are satisfied that notice under section 30 was in fact served upon the petitioners, who, notwithstanding committed default in the payment of rent. Hence they were rightly ordered to be evicted.

This petition, therefore, fails and is dismissed hereby.

Petition dismissed.

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