Find a Lawyer

Civil Petition for Special Leave to Appeal No. K-119 of 1978, decided on 17th April, 1979.

(On appeal from the judgment and order of the Sind High Court, dated 4-3-1978 in 2nd Appeal 57 of 1978).

S. 13(6) read with Displaced Persons (Compensation and Rehabi litation Act (XXVIII of 1958), S. 30---Statutory notice, service of Tenant-Contesting eviction, inter alia, on ground of not having been served with statutory notice under S. 30, Act XXVI of 1958- Rent Controller taking up their matter as preliminary issue and deriding in tenant's favour-Order of Rent Controller reversed by District Judge and statutory notice held to have been served Tenant's appeal before High Court also failing and tenant allowing such order to become finale--Tenant's held, precluded from reagitating such plea.

S. M. Gharlb Nawaz, Advocate with S. Anwar All, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing : 17th April, 1979.

The petitioner is the respondent's tenant and the respondent acquired the property in dispute by transfer from the Settle ment Department. Therefore, after she had obtained the P. T. O. for the property, sent two notices to the petitioner under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the said Act, calling upon him to attention to her and pay her rent. But, as the petitioner failed to pay rent, the respondent filed an eviction application against him in 1965 in the Court of a Rent Controller, Karachi, for his eviction on the ground of non-payment of rent.

The petitioner contested his eviction, inter alia, on the ground that he had not been served with the statutory notice under section 30 of the Act, therefore the Rent Controller rightly decided to try this issue as a preliminary issue, and he decided it in the petitioner's favour on 26-7-1973. The respondent challenged the Rent Controller's order of 26-7-1973 in an appeal in the District Court which was heard by an Additional District Judge, who reversed The finding of the Rent Controller and held that the petitioner had been served with the statutory notice under section 30 of the said Act. The petitioner challenged this judgment in a second appeal in the Sind & Baluchistan High Court, but this appeal was dismissed on 30-5-1974, and the petitioner allowed this order to become final, therefore, he is now precluded from contending that the respondent had not served him with the statutory notice under section 33 of the said Act.

Reverting, however, to the litigation between the parties, after the dismissal of the petitioner's second appeal by the High Court on 30-5-1974, the case was remanded to the Rent Controller and heard on merits. As the petitioner bad not paid any rent, the Rent Controller held that he had committed default and ordered his eviction. The petitioner's appeal against this order was dismissed by an Additional District Judge on 18-1-1978, therefore, he filed a second appeal in the Sind High Court which was dismissed in limine on 4-3-1978. Hence this petition for leave.

Learned counsel submitted that the finding of the Courts that the respon dent had been served with a statutory notice under section 30 of the said Act, was contrary to the evidence on the record. But, as we observed, he is precluded from raising this contention, because the petition allowed the dismissal of her second appeal by the High Court on 30-5-1974, to become final, therefore Mr. Rizvi, who had appeared in the High Court, had very rightly conceded "that the appellant had not tendered rent after the service of notice under section 30". As the petitioner did not tender rent and as the finding, that he had been served with the statutory notice has to become final, it followed that this petition is without merit. It is, therefore, dismissed but we give the petitioner four months' time to vacate the demised premises provided he continues to pay the monthly rent.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.