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Second Appeal No. 340 of 1980 decided on 7^th September 1982.

---S 13 Displaced persons (Compensation and Rehabilitation) Act (XXVIII of 1958) S. 30 Ejectment Notice---- Fact of service of notice under S. 30 by landlord on tenant not properly considered by first appellate by allowing parties to lead further evidence certified copies of previous proceedings between landlord and father of tenant genuineness of which not disputed showing that their late father admitted receipt of such notice-Service of notice on tenant by landlord a vital question of law in case on which very competency of proceedings depended-Case remanded to Rent Con troller with direction to decide issue of service of notice afresh after allowing reasonable opportunity to parties to lead evidence on issue.

Mumtaz Ahmad for Appellant.

R. A. Qureshi for Respondents.

Date of hearing : 7th September, 1982.

The respondent landlord has come in appeal against the order of District Judge, Badin, dated 22nd May, 1980 whereby ejectment application instituted by him was dismissed on the ground that no notice under sec tion 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was served on the respondent as required by law before institution of the rent case.-

2. The admitted position in the case is that property which is subject matter of dispute was purchased by the appellant from the Settlement Authorities in an open auction held in 1960. It is the case of appellant that after purchase of the property he served the required notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 on the father of the respondent Tillomal who was the statutory tenant of the shop. It is further the case of appellant that after service of the said notice no rent was paid and, therefore, rent case bearing No. 12 of 1961 was instituted against him which ended in a compromise between the parties. It is alleged that late Tillomal in his written statement filed in the above Rent Case No. 12 of 1961 as well as in his application filed before the Rent Controller for fixa tion of fair rent of the disputed premises had admitted the receipt of notice under section 30 of the D. P. Act. After the death of Tillomal, the present respondents became the tenant of the premises and the appellant instituted rent case against them on the ground of default and personal requirement. The respondents in their written statement amongst other grounds also pleaded non-service of notice under section 30 of D. P. Act. The Rent Controller alongwith issues of default and personal use also framed an issue regarding service of notice under section 30 of D. P. Act and by his order dated Ist May, 1965 allowed the application. The Rent Controller held that notice under section 30 of D. P. Act was served by the appellant on the father of respondents and therefore it was sufficient compliance of law,

3. The respondent filed first rent appeal against the order of eviction passed by the Rent Controller which was dismissed by the first appellate Court on the ground that the respondents had failed to comply with the tentative Rent order passed by the Rent Controller during the pendency of the appeal. The respondents then filed Second Appeal No. 493/66 in this Court which was allowed and the order of Ist Appellate Authority dismissing the appeal on the ground of non-compliance of the tentative rent order was set aside. However, it appears that after acceptance of the second appeal No. 493 of 1966 by this Court the 1st Appellate Authority did not proceed with the 1st appeal of respondents on the ground. that the High Court had pot remanded the case back to the 1st Appellate Authority for re-hearing after setting aside the order. The appellant it appears, then filed an execu tion proceedings on the assertion that the order of the Rent Controller granting ejectment of respondents still survived. The Rent Controller dis missed the execution application but the 1st Appellate Court accepted the appeal of appellant and allowed the execution application. The respondents then challenged the order of 1st Appellate Court in Revision No. 249 of 1967 which was allowed and the 1st Appellate Authority was directed to dis pose of the 1st Rent Appeal of respondents on merits in the interest of justice. The 1st Appellate Authority thereafter took up the appeal of res pondents and after hearing the parties allowed the same holding that no notice under section 30 of the D. P. Act was served by the appellant on respondents before institution of rent case and as such the proceedings were incompetent. This order of 1st Appellate Authority is now impugned before me. The appellant during the pendency of above appeal has presented an application 'under Order XLI, rule 27, C. P. C. (C. M. A. No. 1104/82) alongwith certified copies of the Rent Application No. 12/61, notice alleged to have been served on Tillomal, written statement of late Tillomal in Rent Case No. 12/61 and Rent Application No. 34 of 1961 for fixation of fair rent filed by late Tillomal before Rent Controller Math, seek ing permission to produce these documents in the appeal. The genuineness of these documents is not disputed but their production is opposed by the learned counsel for the respondents on the ground that production of these documents now would amount to giving a chance to appellant to fill up the lacuna in the evidence.

4. The Rent Controller held in the case that notice under section 30 of the D. P. Act was served on the father of present respondents and it is conceded before me by the learned counsel for the respondents that if this position was correct then no further notice was required to be served on the respondents before institution of rent case by the appellant. The first appel late authority however, took the view that the admitted position in the case being that no notice under section 30 of the D. P, Act was served on the respondents before institution of ejectment case the proceedings for ejectment on the ground of default was not maintainable. The fact of service of notice on respondent's father and its effect was not properly considered by the 1st Appellate Authority. The certified copies of previous proceedings between the appellant and Tillomal (genuineness whereof are not disputed before me) do show that Tillomal had in those proceedings admitted receipt. of notice under section 30 of the D. P. Act. In these circumstances the service of notice on the late Tillomal by the appellant was a vital question of law in the case on which the very competency of the proceedings depend ed and, therefore, the 1st Appellate Authority should have considered this aspect in detail and should have allowed the parties to lead further evidence if it was so required. This was all the more necessary in order to decide the controversy finally and effectively as it was contended all along by the appellant in the proceedings that late Tillomal the father of present respon dents had admitted receipt of notice under section 30 of the D. P. Act in previous proceedings.

5. I, therefore, accept this appeal, set aside the orders of Court below and remand the case to Rent Controller with direction to decide the issue of service of notice under section 30 of the D. P. Act afresh after allowing reasonable opportunity to the parties to lead evidence on this issue. The' parties will also be at liberty to lead any further evidence on other issues if they so desire which will also be reconsidered by the Rent Controller in the light of such further evidence as may be forthcoming. This appeal is allowed subject to above observation with no order as to costs.

M.Y.H. Appeal allowed.

1983 CLC 1620

[Karachi]

Before Saeeduzzaman Siddiqui J

MESSERS HAJI MUHAMMAD & BROS..APPLICANT

Versus

MESSERS ABDUL LATIF SHAKOOR MEDRAWALA RESPONDENT

Civil Revision Application NO. 177 of 1972 decided on 19^th May, 1982.

Contract Act (IX of 1872)

___ ____ S. 73_____ Breach of contract____ Damages____ Respondents admitting to supply goods up top time extended by applicant___ On breach of contract applicant held entitled to damages calculated at market price prevailing on date up to which time extended.

Muhammad Jamil v. A.M. Wazir Ali PLD 1959 Kar 472 ref.

A Sattar Memon for Applicant

Amjad Hussain for Respondent.

Date of hearing: 19th May 1982.

This Revision is directed against the judgment of Small Causes Court dated 13 th March, 1982 decreeing the suit of the applicant/plaintiff for Rs. 1,625 with proportionate cost.

The only point argued by the learned counsel for the applicant before me relates to the date of breach of contract. It is an admitted position that the last date for performance the contract was 31^st December, 1969. It is however the case of applicant plaintiff that the date of delivery was exterided upto 5^th January, 1970. The learned counsel for the respondent contends that the extension of date of delivery up to 5^th January, 1970 was unilateral and the respondent never consented to it from the evidence on record it appears that after the above mentioned date of performance had passed the applicant wrote to respondent to give delivery of the goods contracted up to 5^th of January, 1970. The respondent in reply to the above letter of applicant stated that they are willing to give delivery of goods as soon as they received the goods from M.A. Company from whom the respondent in turn had contracted to purchase these goods. This admission of respondent goes to show that they did not refuse to perform the contract for which the last date of performance was fixed as 31^st December, 1969. The learned counsel for the applicant contends that this admission of respondent amounted to extension of the date of delivery and in support of his contention referred to the case of Muhammad Jamil v. A.M. Wazir Ali (1) The contention of the learned counsel finds support from the above case. I therefore hold that the delivery period was extended up to 5^th January, 1970

(1) PLD 1959 Kar 472

and, therefore, the applicant was entitled to the damages calculated at the market price prevailing on 5th January, 1970. The trial court awarded damages according to the difference between the contractual rate and the rate prevailing on 31st January, 1969. The contracted rate for the goods was Rs. 89 per maund. The evidence on record shows that on 5th January, 1970 the market rate of the goods was between Rs. 106 and 107 per maund. It is conceded by the learned counsel for the applicant that according to the practice prevailing in the market in case of breach of contract the damages were calculated at the market rate reduced by Rs. 2 to Rs. 3 per maund. Taking the lowest of the market rate on 5th January, 1970 and deducting therefrom a sum of Rs. 3 per maund, the market price of the goods on 5th January, 1970 comes to Rs. 103 per maund. The difference between the contractual price at the market rate makes out to Rs. 14 per maund. The total damages will accordingly come to Rs. 1, 750. The respondent had also taken a surety deposit of Rs. 625 at the time of contract which .the applicant is entitled to claim. I, therefore, modify the decree of the trial Court and decree the Suit of applicant in a sum of Rs. 2,375 with propor tionate cost of stamp duty paid on the plaint. There will be no further order as to costs.

M. Y. H. Revision accepted.

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