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Second Appeal No. 380 of 1979, decided on 21st February, 1983.

‑‑ Ss. 13 & 15‑Displaced Persons (Compensation and Rehabilita tion) Act (XXVIII of 1958), S. 30‑Notice‑Proof of service Evidence on behalf of landlord recorded regarding service of notice and tenant choosing to remain absent during proceedings when such evidence recorded‑No application made on tenant's behalf to examine postman and plea of non‑service of notice also not taken in memorandum of appeal‑Contention that notice under S. 30 not served, repelled.

‑‑ Ss. 13 & 15‑Tentative rent order‑Rate of rent‑While passing tentative rent order‑‑Rent Controller relying upon P. T. 1. issued by Excise and Taxation Department and tenant neither placing any other assessment by municipality nor making such request No illegality, held, committed to basing rate of rent on P. T. I. issued by Excise and Taxation Officer.

‑‑ Ss. 13(6) & 15‑Striking off defence‑Tentative rent order passed by Rent Controller neither arbitrary nor capricious‑ Defence of tenant, held, rightly struck off on non‑compliance thereof.

Nooruddin Sark for Appellant.

Anwar Jamali for Respondent.

Date of hearing : 21st February, 1983.

Briefly the facts are that on 15th July, 1967, Rent Case No, 228 of 1967 was filed before the Rent Controller, Hyderabad, by the respon dent/landlord for the ejectment of the appellant/tenant on the ground of default. The appellant challenged the relationship of landlord and tenant and denied that notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had been served upon the appellant. Preliminary issues were decided by order dated 1st August, 1973 by the Rent Controller in favour of the respondent and it was held that section 30 notice had been served and that relationship of landlord and tenant existed between the parties. Tentative order of rent was passed on 12th September, 1973 by the Rent Controller. An appeal was filed by the appellant against the temporary, rent order, which was dis missed by order dated 18th December, 1975 of the learned Additional District Judge, Hyderabad. Thereafter, the appellant filed an application before the Rent Controller. for payment of rent in easy instalments. An application was also filed by the respondent for striking off the defence of the appellant. fly order dated 3rd October, 1978 the Rent Controller decided both the applications, dismissing the application of the appellant for easy instalments and allowing the application of the respondent for striking off the defence of the appellant. Rent Appeal No. 38 of 1978 was filed by tinge appellant, which was dismissed by order dated 9th September, 1979 of the learned 1st Additional District Judge, Hyderabad. The present second appeal has been filed by the appellant challenging these two orders dated 3rd October, 1978 and 9th September, 1979 of the Rent Controller and the Ist Appellate Authority. I have heard Mr. Noorudin Sarki learned counsel for the appellant and Mr. Anwar Jamali, who has appeared on behalf of the respondent.

2. It is an admitted position that there is non‑compliance of the tentative order of rent dated 12th September, 1973. Two contentions have been raised by the learned counsel for the appellant which, are as under : ‑

(a) Section 30 notice was not served upon the appellant and that on the basis of evidence on record it has not been established that such notice was served.

(b) In the tentative rent order the tentative rent. was fixed at Rs. 100 per month on the basis of P. T. I. of the Excise and Taxation Authority, which could not be taken as the basis for fixation of tentative rent, as according to the learned counsel for the appel lant, only the latest assessment of the Municipality could be the, basis for such fixation of rent.

As regards the first contention, it was submitted by the. learned counsel for the appellant that the postman had not been examined to prove that the notice under section 30 had been served upon the appellant. In this connection it may be observed that evidence on behalf of the respondent had been recorded by the Rent Controller. The appellant chose to remain absent during the proceedings, when such evidence was recorded. On the basis of the evidence, the Rent Controller came to the correct conclusion that notice under section 30 had been served and it was not necessary in the circumstances, that the postman should have'' been examined. No application had been made on behalf of the appellant for examination of the postman. I also find from the memos. of appeal in the present second appeal that no plea has taken or ground urged regarding non‑service of section 30 notice. In this view of the matter I find no substance in the contention of the learned counsel that notice under section 30 had not been served.

The other contention raised was regarding the latest assessment by the Municipality. Learned counsel relied upon P L D 1966 Pesh. 89. On the other hand, Mr. Anwar Jamah, relied upon the case of Noor Khan v. Ahdullah P L D 1976 Kar. 862 decided by a learned Single Judge of this Court, whereby it was held, in view of rule 2 of West Pakistan Municipal (Buildings and Lands Tax) Rules, 1962, that the assessment made by the Excise and Taxation Department would be deemed to be the assessment of Municipal Committee for the purposes of section 30 of the 198 Act. I am in respectful agreement with the view taken in P. L D 1976 Kar. 862. In this case, while passing the tentative order of rent, the' Rent Controller relied upon P. T. I. issued by the Excise and Taxation Department show. ins assessment of the premises in question to be at' Rs. 100 per mouth.

Further the appellant slid not place any other assessment by the Munici pality, which was different from the assessment by the Excise and Taxa tion Authorities. No request or application was made either for calling the assessment made by the Municipality. In the circumstances, at the time of passing the tentative rent order, no illegality was committed b the Rent Controller in basing the rate of rent on P. T. I. issued by the Excise and Taxation Officer. I do not find the tentative rent order arbitrary in capricious. It is an admitted position that there is a viola tion of the tentative rent order. In the circumstances. the defence of the appellant/tenant was rightly struck off by the Rent Controller.

3. I find no merit in this second appeal. Second Appeal No. 380 of 1979 is dismissed with costs. The appellant is, however, granted time till 31st May, 1983 to' vacate the premises.

M. Y. H. Appeal dismissed.

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