' This is a second appeal directed against the judgment dated 21-10-1975 passed in 1st Appeal by VIth Additional District Judge, Karachi against the order dated 11-11-1974 by the IVth Court of Controller and Civil Judge, 1st Class, Karachi in Rent Case No, 491/72.
2. The facts giving rise to this appeal are that a residential house bearing No. 1/1 R. S. 2/50-1V-E-172 Jairamji Shamji, Pitember Street, Ramswami, Karachi was transferred to respondent No. 1 and 19-6- 1971 by Permanent Transfer Deed No, 14465 dated 19-6-1971 issued by the Settlement Authorities.
The said respondent No. 1 thereafter sent a notice to respondent No, 2 who was shown as recorded tenant under section 30 of the Displaced Persons Act, 1958 but the same was returned undelivered with the remarks : "No such person resides on this address."
Subsequently the respondent No, I came to know that the appellant herein was in actual possession of the said premises. Respondent No. 1 thereupon filed ejectment proceedings on 2-3- 1972 against respondent No, 2 as well as the appellant herein, in the Court of Rent Controller which was registered as No, 491/72 on the grounds of non-payment of rent and subletting. Notice against respondent No, 2 was not served by substituted service. Later on he was declared ex parte. The appellant herein appeared in Court and contested the case. She took up the plea that she was in occupation prior to transfer of the premises in question in favour of respondent No. 1 and that she was a statutory tenant and as such entitled to a notice as provided under section 30 of the Displaced Persons Act, 1958. She further contended that since no notice was issued to her that Controller's Court had no jurisdiction to proceed with the case. The learned Rent Controller framed the following two issues :
(1) Whether the relationship of landlord and tenant exists between the applicant and the opponent No, 2 ?
(2) Whether the notice under section 30 of D. P. Act was served upon the opponent No, 2 ?
3. The parties led their evidence and the Rent Controller came to the conclusion that the appellant herein was a statutory tenant and that no notice as contemplated by section 30 of the D. P. Act having been served on her the Court had no jurisdiction and as such the application under section 13 was dismissed by his judgment dated 11-11-1974. The respondent No. 1 filed an appeal bearing No, 19/75 against the said judgment which was heard by VIth Court of Additional District Judge, Karachi who set aside the findings of the lower Court on both the preliminary issues and directed the Controller to proceed further in the matter. The applicant has now filed this appeal against the said judgment dated 21-11-1975.
4. The case was called in the morning but neither the appellant nor her counsel were present. It was again called after tea break but none is present on behalf of the appellant. On the last date too, i,e, the 3rd of June 1980, when the matter was fixed for regular hearing the appellant and her counsel were found absent. I was thus constrained to hear arguments of the learned counsel for the respondent in the absence of the appellant and her counsel.
5. The first and foremost question which arises in this case is whether the appellant is a statutory tenant of the respondent No. 1 ? In order to appreciate the contention of the appellant that she was a statutory tenant of respondent one has to first go to the provision of section 30 which is reproduced as under : "30. Protection of certain occupants.-(1) Where any person is in possession of any evacuee house, or shop, or has been declared (on or before the twentieth day of December, 1958), by a Custodian to have tenancy rights from a date prior to the fourteenth day of August 1947, in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then, notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer : ' Provided that-
(a) it shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the municipality or local authority, as the case may be, for other properties in the locality generally ; and
(b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years, and from the industrial concern, cinema house or printing press for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgement due).
(2) Where the transferee does not give notice within one month as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant.
(3) Nothing in proviso (b) to subsection (1) shall apply to a tenant- (i)Who has not within three months from the date of receipt of a notice) of demand sent to him by the transferee by registered post (acknowledgement due), paid or tendered the amount of rent or arrears of rent due for any period after the transfer ; or
(ii) who after the transfer, has sublet or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press or any part thereof, or has committed acts which are' destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop who, in any urban area within the same town or city, owns a house or shop, as the case may be.
(4) On the expiry of the period mentioned in proviso (b) to subsection (1) or on the contravention of any of the provisions of subsection (3), whichever is earlier the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship.
(5) [Omitted]."
' The word "possession" as used in the above section has been defined in section 2(6) of the said Act which is reproduced below : "S. 2(6) "Possession" means possession obtained in pursuance of an order passed on or before the twentieth day of December, 1958, by a Rehabilitation Authority or a Custodian or any other officer authorised or permitted by the Central or Provincial Government : ' Provided that if a question arises whether an officer was so authorized or permitted, the decision of the Chief Settlement Commissioner in that behalf shall be final: ' Provided further that the Central Government may, by order in writing, direct that a class or classes of such persons as have not obtained possession as aforesaid shall, subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this act."
Reading the provisions as stated above one can easily come to the conclusion that the crucial date of possession for purposes of giving a statutory protection to the occupant of an evacuee property is the 20th of December, 1958 and not the date prior to the transfer of the premises to the transferee as asserted by the appellant. The documentary evidence produced in the case on behalf of the appellant pertains to 1968 onwards.
6. According to the extract of the Custodian register, Exh. 4, respondent No. 1 was the recorded tenant of the property in dispute who could be termed as a statutory tenant of the respondent No. 1 by operation of law as provided under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The appellant herein appears to have been inducted into the premises much after the date, that is. The 20th of December, 1958 as provided in the statute and as such cannot claim protection of being a statutory tenant and thus entitled to notice under section 30 of the Act.
7. The learned counsel for the respondent in support of his contention relied on the case of Warts Khan v. Abdul Aziz (1). The following observation may be relevant for the purposes of this case :- "The statement of Afzal Beg, therefore, shows that Waris Khan appellant was not in possession of the shop on or before the twentieth day of December, 1958, and nor was he declared by the Custodian to have tenancy rights from a date prior to the fourteenth day of August, 1947, as contemplated by section 30, subsection (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and he seems to have come into possession subsequently. In these circumstances, the two Courts below were perfectly right in coming to the conclusion that section 30 of the above mentioned Act was not applicable."
' He further relied upon a Division Bench case of Sadiq Ali v. M. D. Arif (2) wherein the Peshawar case as referred to above was relied upon and it was observed : "As to the protection under section 30 of the Displaced Persons Act it is to be observed that it is available only to such persons as happen to be in possession of an evacuee house or shop since the 20th day of December, 1958 in view of the definition of the term "possession". In the present case the appellant came to occupy the shop only on the 1st of December, 1965."
8. Lastly he relied upon a Supreme Court Authority in the case of Bank of Behawalpur v. Chief Settlement Commissioner (1), wherein it was held that "unless the person in occupation is in possession within the meaning of section 2(6) of the Act he is not entitled to the protection provided for under section 30 of the Act."
9. In view of the fact that the respondent No, 2 who was a recorded tenant as per Exh. 4 and could be termed as a statutory tenant is ex parte and the appellant has come on the scene subsequent to 20th of December, 1958 I am of the view that she is not a statutory tenant and the protection as provided in section 30 of the Displaced Persons Act is not available to her. For this view I find support from the authorities referred to hereinabove.
10. In the result, I dismiss this appeal and direct the 1Vth Court of Rent Controller to proceed with the matter and dispose of the eviction application on merits. There will, however, be no order as to costs. {{FOOT NOTE}}
(1) PLD 1978 SC 164 {{FOOT NOTE}}