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Civil Appeal No. K‑254 of 1980, decided on 12th May, 1982.
(On appeal from the judgment and order of the High Court of Sind at Karachi, dated 8‑3‑1980 Passed in Second Appeal No. 80 of 1976).
‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑‑Ejectment application‑‑Failure to serve notice under S.30 of Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑Maintainability of ejectment application‑‑Leave granted to consider whether on facts of case question of service of notice under S.30 of Act was relevant.
‑‑‑S. 13(6)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑‑Ejectment application‑‑Notice under S.30 of Act (XXVIII of 1958) not served on tenant‑‑Relationship of landlord and tenant in dispute‑‑Rent Controller, without adverting to question of service of notice/ maintainability of ejectment application, decided issue of relationship and directed tenant to deposit rent, on failure, struck off his defence and ordered ejectment‑‑Held, Service of notice under S. 30 of Act in prescribed manner was a sine qua non for entertainment of petition for ejectment against tenant who was occupying a building transferred to a displaced person and that order for deposit of tentative rent was a nullity and its non‑compliance could not have resulted in striking off defence of tenant.
P L D 1967 Lah. 857 and P L D 1967 Lah. 1025 rel.
Abdul Hafeez Pirzada, Advocate Supreme Court instructed by Akhtar Mahmud, Advocate‑on‑Record for Appellant.
Faizanul Haq, Advocate‑on‑Record for Respondent,
Date of hearing: 12th May, 1982.
.‑‑ This appeal by leave arises out of an application filed by appellant on 2nd July, 1971 for respondent's eviction from the demised premises on the ground of non‑payment of rent. In defence, respondent denied relationship of landlord and tenant between the parties and claimed to be the owner of the property in dispute. He also denied the execution of an alleged rent‑deed, and, in the alternative, pleaded that the ejectment application was not maintainable as notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not served on him.
The Rent Controller, Hyderabad who dealt with the case framed a preliminary issue whether there existed relationship of landlord and tenant between the parties and answered it in the affirmative; but confined his attention only to the question whether or not respondent was the owner of the property and the effect of his signature on the rent‑deed. He did not advert to the question whether notice under section 30 of the Act was served on the tenant or not, and the maintainability of the ejectment application. Afterwards, the Rent Controller passed an order, dated 28‑11‑1974 directing the respondent to deposit rent at Rs.25 per month for the period from July, 1970 to October, 1974, before 21st January, 1975, and also to deposit future rent before 15th of each English Calendar month. On respondent's failure to comply with this order, the Rent Controller, by the order, dated 23rd December 1975, struck off his defence and directed his eviction from the premises.
Respondent's appeal against this order was dismissed by the Additional District Judge, Hyderabad, but a Second Appeal filed by him in Sind High Court succeeded for the reason that the learned Judge in the High Court .who heard the appeal took the view that the Rent Controller was required to firstly decide the question whether notice under section 30 of the Act was to be served on the respondent and as to the maintainability of the ejectment application on this score.
Leave to appeal was granted to the appellant in order to consider on the facts of the case the question of service of notice whether under section 30 of the Act was relevant.
We find that the High Court has taken the following view in this regard:
"For the purpose of the present appeal it is unnecessary to examine the merits or demerits of the finding of the First Appellate court on the question of the finding of the First Appellate Court, for, the more fundamental question is whether it was open to the Rent Controller to make an order for deposit of rent under section 13(6) of the Rent Ordinance without first framing an issue on section 30 notice and determining the same. The settled law is P L D 1967 Lah. 857 and P L D 1967 Lah. 1025 that service of notice under section 30 of the Act XXVIII of 1958 in the prescribed manner is a sine qua non for entertainment of a petition for ejectment against the tenant who is occupying a building transferred to a displaced person. It will, therefore, follow in the present case that the order for deposit of tentative rent was a nullity and its non‑compliance could not have resulted in striking off the defence of the appellant‑tenant ."
After having heard the learned counsel for the parties in the light of the record before us, we are clearly of the opinion that on the facts of the case no exception can be taken with the view that has prevailed in the High Court. The appeal has no merit, and is dismissed with costs.
M.I. Appeal dismissed.
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