SANAM JAN Versus ABDUL MASJOOD
This appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 0959 is directed against the order of the Additional District Judge, Quetta, dated 26‑7‑1974 dismissing the appeal of the appellant and affirming the order of the Rent Controller dated 31‑3‑1973 ordering the eviction of the appellants from the shop in dispute.
2. Briefly, the facts are that the premises in dispute is a shop bearing municipal No. 3‑15/18 situated on Masjid Road, Quetta. On the date of the transfer of the shop to Amir Din and Aziz Din by the Settlement Authorities under P. T. O. dated 7‑12‑1960, the shop was in occupation of Muhammad Suleman and therefore he became statutory tenant of tie said transferees. The present appellants are the legal representatives of Muhammad Suleman who died before the present appeal was filed. Muhammad Suleman was appris ed of the transfer by Amir Thin through a notice dated 10‑7‑1964 under sec tion 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The shop was purchased by the respondent Abdul Masjood by a registered sale deed dated 25‑7‑1966 and the respondent was recovering the rent of the shop. The respondent filed the present application for ejectment of Muhammad Suleman on the ground that he required the shop for his personal use and for reconstruction and on the ground of default of payment of rent. Paragraph 2 of the application, which is relevant, stated that Muhammad Suleman was duly served with a notice on 10‑7‑1974 by transferee Amir Din within the purview of section 30 of the Displaced Persons (Compensation and Rehabi litation) Act, 1958. Muhammad Suleman in his written statement admitted this averment. The Rent Controller after framing issues and recording evidence allowed the respondent's application on the ground of personal and bona fide use. However, he held that the default had not been proved.
3. Muhammad Suleman filed an appeal to the District Judge, Quetta, against the order of the Rent Controller for his eviction. The appellants applied to amend memo. of appeal to include a new ground vie. "that no notice as required under section 30 of the Displaced Persons (Compensation and Reha bilitation) Act, 1958 was ever served on the appellant. The eviction application is therefore, not competent because the period of protection has not yet expir ed. The amendment application was however not pressed upon the respondent's counsel conceding that this legal plea may be taken if available to the appel lants at the time of arguments, although the same had not been specifically mentioned in the memo. of appeal. By the impugned judgment dated 26‑7‑1974 the appeal of Muhammad Suleman was dismissed on the ground inter alia that the plea as to the validity of the section 30 notice was not available to the appellants at the appellate stage as it was not pleaded before the Rent Controller.
4. Mr. Azizullah Memon, learned counsel for the appellants submitted that a notice in the name of one of the several transferees is not a valid notice under section 30 of the Displaced Persons Act and relied on the decision reported in Faqir Muhammad v. Fazal Din and another (PLD 1967 Lah. 528), which held that notice must be given by all transferees and notice on behalf of only one transferee is invalid. The short question however, is whether the appellt6te Court rightly disallowed the appellants from raising the legal plea with regard to the validity of section 30 notice in view of the appellants' admission in his written statement of the receipt of the notice and omission to specifically plead that it was a defective notice. The learned appellate Court referred to the earlier Ejectment Application No. 35/1967 between the same parties in which also the appellants had admitted service of the section 30 notice. Mr. Arshad Choudhri, for the respondent also submitted that in the present application the appellants had also admitted the same and that the appellants are now estopped from raising objection to the notice and referred to the decision in Safdar Ali v. Muhammad Ali (P L D 1974 Quetta 1). In that case my learned brother Dorab Patel, J., did not permit the appellant to raise objection as to jurisdiction of the Rent Controller as the plea had not been raised before ‑ the Rent Controller. In Muhammad Hussain v. Amtual Batual (1970 S C M R 286), the plea regarding section 30 notice was not permitted to be raised for the first time in the High Court.
5. The submission of Mr. Azizullah Memon is that the plea with regard to section 30 notice is a pure question of law and could be raised at the appellate stage and in support of this proposition he relied on Atlas Industrial & Trading Corporation, Karachi and another v. Dr. Jalil Asghar (P L D 1970 Kar. 241). But as rightly pointed out by Mr. Arshad Choudhari, the plea with regard to section 30 notice is a mixed question of fact and law. Further evidence with regard to the contents of the notice would be necessary and also proof of the fact whether the notice was addressed by one or both transferees. Since the appellants had admitted the section 30 notice and had not objected to its validity there was no occasion for the respondent to lead evidence to prove the said notice. Therefore the notice was not proved exhibited and is not on record. The appellants did not even cross‑examine the respondent's witnesses before the Rent Controller with regard to section 30 notice.
6. For the above reasons, I am in agreement with the judgment of the appellate Court and find no force in the present appeal which is accordingly dismissed with costs. .
S. A. H Appeal dismissed.