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Rent Second Appeal No. 8 of 1982, decided on 16th February, 1983.

--Civil cases-Matter to be decided on basis of preponderance of evidence.

-- S. 21-West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13 (2) & 15-Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30-Ejectment-Default -Notice-Preponderance of evidence in favour of conclusion that tenant in possession of house prior to its transfer to landlord-Question of default, held, is to be determined with reference to notice under S. 30.

---S. 13-A-Sind Rented Premises Ordinance (XIII of 1979), S. 21 and Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30 -Ejectment -Default -Notice under S. 30-Tenant in possession of house prior to its transfer to landlord by Settlement Department-Non-service of notice under S. 30, held, fatal to application for ejectment on ground of default-Inter ference declined in second appeal.

Mrs. Mariam Fernandes v. State Life Insurance Corporation of Pakistan, Karachi P L D 1981 Kar. 591 rel.

A. Haque Solangi for Appellant.

Moohan Lai for Respondent.

Date of hearing : 16th February, 1983.

This is a second appeal against the order dated 13th December, 1981 passed by the learned II Additional District Judge, Larkana, in Civil Miscallaneous Appeal No. 46/72.

The brief facts leading to the filing of the above second appeal are that the house in question was purchased by the present appellant on 22nd April, 1961 from the Settlement Department in a public auction. It is the case of the appellant that a portion of the said house was let out by him to the respondent at the rate of Rs. 7 per month on the condition that the same would be vacated by him whenever it was needed by the appellant. It has also been averred by the appellant that the respondent had refused to vacate the above portion of the house and also stopped payment of the rent, and, therefore he filed Rent Case No. 24/69 on two grounds, namely, default and personal requirement. The learned Rent Controller -on the basis of the pleadings of the parties framed the following issues :-

"(1) Whether opponent is defaulter

(2) Whether applicant needs the house for his personal use

(3) What should the order be

The learned Rent Controller by his order dated 30th June, 1972 allowed the above rent application on the ground of default and rejected the ground of personal requirement. The respondent being aggrieved by the above order filed Rent Appeal No. 46/72 which was allowed on 14th November, 1975 by the learned Second Additional District Judge, Larkana, on the ground that no notice under section 30 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958, was served by the appellant on the respondent before filing the above ejectment application. The appellant being aggrieved by the above order filed 11 Appeal No. 29/76, which was allowed by my learned brother 7.. C. Valiani, J. by his Judgment dated 12th April, 1981 on the ground that section 30 was repealed in 1974 by Ordinance No. 15/74 and, therefore, the learned first appellate Court was not justified in dismissing the appellant's application on the ground of non-service of a notice under the above section. The case was remanded to the learned first appellate Court with the direction to decide the case on merits. After the remand order, the learned 11 Additional District Judge by his order dated 13th December, 1981 allowed the appeal and held that there was no default. Consequently he dismissed the appellant's rent appli cation for ejectment. The appellant being aggrieved by the above order has filed the present appeal.

2. In support of the above appeal Mr. Abdul Haq learned counsel for the appellant, has urged that since it was held by the High Court that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was required, the default stood proved in view of the pleadings, namely para. 6 of the rent application and para. 6 of the objections to the rent application. It has been further urged by him that since the respondent had admitted the payment of the rent for a number of years, the burden of proof was on the respondent to show that he had paid the rent for the period of default. On the other hand it has been contended by Mr. Mohan Lal that since the rent case was filed in 1969 and as from the evidence on record, it is evident that respondent was in po3session of this house prior to the transfer of the house to the appellant, the question of default for the period prior to the repeal of the Act of 1958 is to be determined with reference to the question, as to whether there was any service of a notice under section 30 of the Act.

3. I have gone through the judgment of the learned first appellate Court. Mr. Abdul Haq Solangi is right to the extent that the learned Additional District Judge has not referred to the evidence on the basis of which he had concluded that the respondent was in possession of the tenement in question prior to the transfer of the house to the appellant by the Settle ment Department but I have gone through the evidence on record and I find that the appellant in support of the rent application had examined himself and two witnesses whereas the respondent examined himself and three witnesses. The appellant's one witness Tajumal, Exh. 24, in his cross. Examination had stated that he was not in a position to say, whether the respondent was in possession prior to the transfer of the house to the appellant, who as other witness, namely, Jamiatmal, admitted in his cross-examination that he was a close relation of the appellant. On the other hand the witnesses produced by the respondent, namely Sabhagomal, Sojhomal and Bachumal, have deposed that the respondent was in possession of the mouse prior to the transfer of the same to the appellant. Mr. Solangi pointed out that Sabhagomal has admitted that he was a relation of the res pondent. Even if his testimony is ignored on that account, there still remains the testimony of two witnesses, who are neighbours of the respon dent. I am, therefore, included to concur with the view of the learned first appellate Court that the respondent was in possession of the house prior to the transfer of the house by the Settlement Department to the appellant. However, it was vehmently urged by Mr. Solangi that the respondent should have produced the ration card or rent receipts for the payment of rent to the Settlement Department or some other document to indicate that he was in fact in possession of the house prior to the transfer of the house by the Settlement Department. It is true that if the above documentary evidence would have been produced, it would have been better but in a civil case the matter is to be decided on the basis of preponderance of evidence. Both the parties have produced their evidence and the Court will have to decide on the basis of preponderance of evidence. In the instant case the prepon derance of evidence is in favour of conclusion that the respondent was in possession of the house prior to the transfer of the same to the appellant. In this view of the matter, 1 am also inclined to concur with the learned first appellate Court that the question of default in respect of rent application filed in 1969 is to be determined with reference to the question as to whether any notice under section 30 of the Act was served or not. It is true that the rent application could not have been dismissed by the learned first appellate Court on the ground of non service of a notice under section 30 of the Act. After it was repealed in 1974 but the question of default for a period prior to 1969 cannot be de linked with the question of service of notice. Non-maintainability of an application for want of notice under section 30 of the Act is different from the question of default. Mr. Solangi 'has referred to para. 6 of the rent application and para 6 of the objections which read as follows :-

"6. That opponent has failed to pay his rent for last 43 months."

6. That regarding contents of para No. 6 of the application, it is submitted that opponent tried to pay the rent to applicant but he himself refused to accept it, because opponent demanded the previous receipts from applicant."

4. It has been vehmently urged by him that in view of the above state of pleadings, the question of service of notice does not arise as admittedly the respondent had paid rent for few years prior to the filing of the rent case by the appellant. In this regard reference has been made by the learned counsel for the respondent to the case of Mrs. Maryam Fernandes v. State Life Insurance Corporation of Pakistan, Karachi (P L D 1981 Kar. 591), in which it was held by a learned single Judge of this Court that notwithstanding the payment o rent by a tenant non service of a notice under section 13-A of the late West Pakistan Urban Rent Restriction Ordinance, 1958, would be fatal to an application for ejectment on the ground of default. It may also be observed e that I am hearing second appeal, and if Lam satisfied with the view found favour with the learned first appellate Court cannot be said to be perverse I cannot interfere in the second appeal.

5. In view of the above discussion I am of the view found favour with the learned first appellate Court seems to be in consonance with law an does not call for an interference by this Court in this second appeal. The appeal is, therefore, dismissed.

M. Y. H. Appeal dismissed.

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