1. This is an appeal against the judgment of the Additional District Judge, dismissing the appeal filed against the order of the Rent Controller, Karachi. The respondent is the transferee of the premises from the Settlement Department while the appellants were in occupation of the premises long before December 1958 and, therefore, by virtue of section 30, Displaced Persons (Compensation and Rehabilitation) Act, they were statutory tenants.
2. The property was originally transferred in the name of appellant No, 2 and P. T. 0. dated 2nd December 1959 was issued but it was cancelled on 31st August 1960 for non-payment of the instalments. Subsequently the auction was held on 31st October 1960 and the property was purchased by the respondent and P. T. 0. dated 3-2-61 was issued in his favour. In pursuance of this transfer the respondent served notice dated 3-2-61 upon the appellants intimating them that the property had been transferred in his name and a demand for rent was also made. However, the appellants paid no rent and instead filed appeal before the Additional Settlement Commissioner and the appeal was accepted by an order dated the 18th May 1961 and the transfer a the property in the name of the appellants was maintained. Against this order the respondent filed an appeal before the Settlement Commissioner who reversed the order passed by the Additional Settlement Commissioner and restored the transfer of the property in favour of the respondent by an order dated the 31st July 1962. Despite this final order the appellants paid no rent and, therefore, an application under section 10 of the Karachi Rent Restriction Act as amended by the Ordinance of 1962 was filed for ejectment and possession of the premises. The rent claimed in the application was Rs, 25 per month on the basis of the assessment of the K. M. C.
3. The application was resisted and the rate of rent was disputed. It was pleaded that the original rent was Rs, 6 per month and the enhanced rent fixed by the K. M. C. was kept in abeyance. With regard to the notice under section 30, Displaced Persons (Compensation and Rehabilitation) Act it was pleaded that it was given during the pendency of the appeal and revision before the Settlement Authorities and as such it was not binding. The non-payment of rent was pleaded on the ground that final assessm ent was yet to be made by the Excise and Taxation Department and K.M.C. which was awaited. Finally the proper amenities had not been provided in the house.
4. The following issues were framed : "(1) What amount of rent is due from the opponent No, 1?
5. (2)Whether the opponent has made any default and is liable to ejectment?
6. (3)To what relief is the applicant entitled?"
7. The learned Rent Controller, after recording the evidence, came to the conclusion that the required notice under section 30, Displaced Persons (Compensation and Rehabilitation) Act was given by registered post with acknowledge due and, therefore, they were liable to pay rent from the date of the transfer of the property. He fixed the rent at Rs, 25 per month in view of the latest assessment of the K.M.C. as borne out by the documentary proof. He rejected the contention of the appellants that either they had been paying the rent to the Custodian Department at Rs, 6 per month or any fair rent had been fixed by the Rent Controller at Rs, 8 per month in the absence of proof. Against this decision an appeal was filed and the learned Additional District Judge agreed with the learned Rent Controller.
8. The only ground taken before me at the time of arguments Is regarding the validity of the notice dated 3-2-61 which was served by the respondent. It was in the first instance pleaded that the appellants Mohd. Abdul Saeed and Abdul Shakoor (the former is the son while the latter is the father) were in occupation of the premises and, therefore, both being statutory tenants, the notice was served upon Mohd. Abdul Saeed only and in the absence of notice upon Abdul Shakoor the notice was bad and no liability for payment of rent under the notice arose. I find no force in this contention. The averment of the service of the notice was made in para. 2 of the application while the reply to this para. is in para. 2 of the written statement. In this it was not denied that the notice was served upon the appellants. No plea was taken that notice was served only upon one of them.
9. Para. 2 of the written statement reads : "Para. 2 of the case is containing incorrect statements. The notice was referred or given during the pendency of appeal and revision between the parties and it is not binding or had no legal effect."
10. Thus the perusal of this does not support the contention of the appellants and that the notice was served only upon one of the appellants. The only objection which was taken was that the notice was served during the pendency of the appeals and revision. Since there was no specific denial service of notice upon both the appellants, it must be presumed to have been admitted. Not only this but even the reply dated the 16th February 1961 was produced in the trial Court and this clearly shows that the notice was received by Abdul Shakoor appellant. Moreover, this objection cannot be looked into as it was not taken as a ground of appeal. It was nowhere pleaded in the memo. of appeal that the notice was served only upon one of the appellants.
11. The second objection which was taken was that the rate of rent was not shown in the notice. In my view this does not affect the validity of the notice. According to section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 what was required was that the landlord should intimate the tenant about the transfer of the premises in his favour and make a demand of rent. It was not necessary to show the rate of rent in the notice. The necessity of showing the rate of rent arises only in case the landlord proceeds to demand the rent at A the enhanced rate on the basis of the latest municipal assessm ent. In case the landlord does not show any rate of rent it can only be presumed that he has not elected to exercise the right of claiming the rent at the enhanced rate and, therefore, the tenant is bound to pay or tender the rent which he was either paying to the Custodian Department or was fixed by that Department. Thus the mere omission to state the rate of rent would not invalidate the notice. In this view I am supported by the authority in the case of Mian Rehmatali v. Khadija Hakim .
12. The last ground is that the notice was served not only during the pendency of the appeals and revision but at one stage after the service of notice the appellants had succeeded in obtaining the transfer of the premises and the transfer in the name of the respondent was cancelled and, therefore, that notice ipso facto lost its force and a fresh notice after the final order was passed by the Settlement Department, was imperative. I find no force in this contention as well. The notice as required by section 30 was given and it held good for all purposes. At the most it remained suspended during the pendency of the appeals and revision and could be taken as a circumstance in favour of the appellants for non-payment of rent till the final order was passed and the default could not be attributed to them but to say that its effect was completely washed off or the notice was thereby rendered infructuous or invalid cannot be accepted. Unfortunately even after the final disposal of the matter by the Settlement authorities the appellants made no offer to tender any rent to the respondent. So the bona fide which may have existed earlier was no longer available. So far the default is concerned not only there is concurrent finding of the two Courts below but it has also been amply established by the evidence available on record.
13. In the result the orders of the learned Additional District Judge and the Rent Controller are maintained and the appeal is dismissed with costs. PLD 1967 Lah. 29