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Second Appeal No. 93 of 1977, decided on 13th May, 1984.

S. 13 (2)‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑‑Application for ejectment‑Plea of non‑maintainability for want of notice under S. 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958‑Landlord claiming to have sent such notice in his application for ejectment‑Tenant not denying such claim in his written statement‑Ejectment application, held, could not be dismissed on technical ground -Ejectment application filed by landlord on ground of default in payment of rent shall be deemed to be a notice‑Compliance of S. 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958, held, had been made in circumstances and tenant could not take benefit of such technical objection.

1971 S C M R 118 and 1972 S C M R 251 ref.

P L D 1983 Kar. 419 ; 1977 C L C 46 ; 1981 S C M R 193 ; 1982 C L C 1573 ; 1981 C L C 1153 ; P L D 1984 Kar. 135 and P L D 1981 Kar. 88 rel.

‑‑S. 13 (2) ‑ Application for ejectment ‑ Landlord not a full owner‑Plea that application by one co‑sharer not maintainable, held, had no substance‑Any co‑sharer of property could file rent application.

1980 S C M R 339 ; 1978 S C M R 14 and P L D 1978 Lah. 193 ref.

Aziz Urfi for Appellant.

Suleman Kassim for Respondents.

Date of hearing : 10th April, 1984.

This Second Appeal has been filed against judgment, dated 21st September, 1976, whereby Third Additional District and Sessions Judge, Karachi reversed the order of the Rent Controller passed in Rent Case No. 817 of 1972.

2. The relevant facts are that on 17th October, 1972, Muhammad Yousuf filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in which be sought the ejectment of tenant of his bungalow bearing No. G/2 on Plot No. J. M. 160, Custodian No. 7/13/158 situated at 48 Bhurgiri Road, Jamshed Quarters, Karachi, on the ground of default. In the application it was mentioned that Mst. Kaneez Bano is also joint co‑sharer of the premises and the applicant is entitled to receive rent to the extent of 2/5 in terms of transfer deed. The written statements were filed on behalf of Mst. Kaneez Begum and Moosa Bhai the present appellant separately. Mst. Kaneez Bano who was also party in the original rent application, is co‑sharer with Muhammad Yousuf respondent of this case. The learned Rent Controller . on the pleadings of the parties framed the following issues :‑

(1) Whether application is maintainable

(2) Whether the application is bad in law for want of notice under section 30 of the Displaced Persons Act 7

3. The Rent Controller proceeded with the rent case and finally dismissed the rent application of Muhammad Yousuf who went in appeal and Additional District and Sessions Judge set aside the order of the Rent Controller vide judgment, dated 21st February, 1977 and ordered Moosa Bhai the present appellant to hand over vacant possession of the premises to the respondent.

4. I have heard the arguments of Aziz Urfi Advocate for the appel lant and Mr. Suleman Kassim, Advocate for the respondent No. 1.

Mr. Aziz Urfi Advocate, contended that the respondent is a transferee of this property under the settlement scheme, therefore, notice under section 30 of the Displaced Persons Act is mandatory but respondent failed to give such a notice, therefore, rent application is not competent. He has further argued that this is an undivided joint property, therefore, respondent has no cause of action till this property is partitioned for which the respondent has to file civil suit. Mr. Aziz Urfi has cited 1971 SCMR 118 and 1972SCMR251.

Mr. Suleman Kassim, Advocate appearing for the respondent No. 1, has argued that respondent has asked for a rent of the portion bearing No. G/2, which is a separate portion and specifically this was given to the respondent independently, therefore, there is no need for filing the suit for the partition. He further submits that in para. 4 of the original rent application filed on 17th October, 1972, applicant had served a notice, dated 27th December, 1972, intimating of the transfer and requiring payment of rent to the extent of 2/5th share of his portion in terms of deed of tenancy, therefore, requirement of notice under section 30 has been complied with. He is also of the opinion that even for the sake of argument notice under section 30 was not served, the rent application can be considered as a notice. He has relied upon cases reported in P L D 1983 Kar. 419, 1977 C L C 46 and 229, 1981 S C M R 193, 1982 C L C 1573, 1981 C L C 1153, P L D 1984 Kar. 135, P L D 1981 Kar. 88, 1980 S C M R 339, 1978 S C M R 14 and P L D 1978 Lah. 193.

5. Now I proceed to discuss the contentions raised by learned counsel for the parties and the case‑law cited by them.

The first point for consideration is whether compliance of section 30 of Displaced Persons Act has been made if not what will be the effect.

The learned Advocate for the appellant has relied upon the cases of Gulzar Begum v. Mst. Siara Bibi 1972 S C M R 251. In that case notice under section 30 .was not served and Supreme Court set aside the order of the trial Court and remanded the case back. On the other hand the learned Advocate for the respondent has relied upon P L D 1981 Kar. 88, where it has been held that the application could not be dismissed merely on technical ground and the very fact that ejectment application is filed is sufficient to meet the compliance of notice under section 30 of the Displaced Persons Act. In another case P L D 1984 Kar. 135 it has been held that after expiry of 13 years of filing of rent application, it would not be just and proper to dismiss the application on the ground of non‑service of notice, and on the same point reference could be made to P L D 1978 Lah. 193, where it has been observed that ejectment application is considered as notice under section 30.

7. In this case in para. 4 of the application it is specifically mentioned that on refusal of opponent No. 2, for a joint action the applicant has served a notice, dated 27th December, 1972, intimating of the transfer and requiring payment of rent to the extent of 2/5th share in terms of his transfer deed/documents. In the written statement the notice referred above has not been denied. In light of the above case‑law and the fact of his case, the compliance of section 30 has been made and appellant cannot take benefit of this technical objection.

8. The next point is whether one partner can file ejectment application without the consent of the other co‑owner. I refer to a case 1979 C L C 229, where it has been held that any owner with consent of other owner can file ejectment application. According to 1981 S C M R 193, any co‑owner can file rent application. In another case of Mst. Sa v. Abdul Sattar P L D 1983 Kar. 419, the same view has been followed. The objection about non‑maintain ability of the application cannot be sustained. Moreover, in the present case the respondent has produced documents during the proceed ings which show that premises G/2 are independent and that portion of the bungalow has been transferred to the respondent. The learned Additional District and Sessions Judge in his order has fully discussed this point and came to the conclusion that both the tenements Nos. G/2 and G/3 of the bungalow stand transferred to the respondent. Therefore the appellant became a statutory tenant of the respondent and his findings are that there exists‑relationship of landlord, and tenant between the parties.

9. In view of the above circumstances I am also of the view that the rent application is maintainable and the compliance of section 30 of Displaced Persons Act has been made. It is admitted fact that appellant has failed to pay the rent to respondent who is the owner of the 2/5th share independent portion of the bungalow. Therefore I maintain the. order, dated 21st February, 1977 of the Additional District and Sessions Judge, Karachi whereby he was directed appellant to hand over premises within 3 months to the respondent. However, looking to the circumstances of the case, I allow three months time to appellant to vacate the premises and hand over the same to the respondent. In case he fails to do so he may be evicted without any further execution proceedings.

M.B.A. Order accordingly.

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