' This is a second appeal which has come on remand by the order dated 9th January, 1980 of the Supreme Court.
2. On 3rd April, 1969 the respondent filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the predecessor-in-interest of the present appellants, Jiandmal, who was the tenant in respect of a recidential premises bearing C. S. No, 872 situated at Ward No, 5, Jacobabad, at a monthly rent of Rs,
25. Jiandmal died on 17th November, 1969 during the pendency of the said proceedings. This event led to filing of an amended application against the present appellants as legal representatives of the deceased tenant. The appellants adopted the written statement filed by the deceased.
3. The learned Rer.t Controller, after recording evidence of the parties, found the issues of the service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as well as the default in payment of rent against the appellants but relying on an authority reported in PLD 1961 Lah. 137 held that the appellants were not liable to be ejected on the ground of default in payment of rent committed by their predecessor-in-interest, the deceased tenant. On appeal filed by the respondent the order of the Rent Controller was reversed and the application was allowed holding that the present appellants were liable to be ejected on the ground of default committed by the deceased/tenant, their predecessor-in-interest.
4. Being aggrieved by the said judgment of the Additional District Judge, the appellants filed this Ilnd appeal which was dismissed on the basis of a concession made by the learned counsel for the appellants. Against this consent order a petition for Special leave to appeal was preferred on behalf of appellants Nos. 2 to 4 who happen to be the minor children of the deceased tenant. The said petition for special leave to appeal was converted into a Civil Appeal and was allowed. The impugned judgment was set aside and the case was remanded for early disposal.
5. The learned counsel for the appellant has raised the following contentions :-
(1) The finding as to service of notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 is not in accordance with law, as the postman was, not produced by the respondent.
(ii) There is a misreading of evidence on the point of default.
(iii) The learned Additional District Judge has not exercised the discretion judicially in ordering the ejectment of the appellants.
6. So far as the first contention is concerned, it ;s apparent that both the Courts below have held the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to have been duly served on the deceased tenant. The evidence produced .By the respondent in support of the service of the said notice on the deceased tenant includes a receipt of registration issued by the Post Office, acknowledgement receipt bearing signature of the deceased tenant and also a copy of the said notice. It was not alleged that the acknowledgement receipt did not bear the correct address of the deceased tenant nor the signature of the deceased tenant on the said acknowledgement receipt was denied. Moreover, this plea was not taken in the grounds of appeal.
7. The learned counsel for the appellant relies on the case of Amraz Khan v. Arbab Khan (1) but it is quite distinguishable. In the case cited by the learned counsel for the appellants the notice was refused and there was an endorsement by the Postman to this effect. This endorsement necessitated his examination, whereas in the present case the notice was properly addressed and served on the deceased tenant and the acknowledgement receipt bearing his signature was produced. In these circumstances, I find no force in the first contention. For this view I am also supported by two judgments of the Lahore High Court, namely Bashir Ahmed v. Mumtaz Khan (2) and Mohomed Umar v. Hakam Khan (3).
8. So far as the second contention is concerned, both the Courts below were unanimous in holding that there was a default in payment of rent by the deceased tenant, but the argument which found favour with the learned Rent Controller in dismissing the application for ejectment was that the legal representatives of the deceased tenant could not be ejected from the premises as they were not liable for the default committed by the deceased tenant. For this view, the learned counsel relied upon a decision in the case of Mohammad Azim and others v. Muhammad Nawaz and others (4). In fact, this authority was overruled by a subsequent decision in appeal between the same parties as reported in PLD 1961 Lah.
788. This decision given in appeal which was upheld by the Supreme Court in its judgment; reported in PLD 1966 Supreme Court 182, was brought to the notice of the learned Additional District Judge and .Finding of the learned Rent Controller was accordingly reversed and the appeal filed by the respondent was allowed.
9. Faced with this state of law, the learned counsel for the appellant contended that the question of default was not considered judicially, but this plea appears to be misconceived inasmuch as the learned Rent Controller specifically found the deceased tenant to have committed default in payment of rent due as alleged by the respondent, but for the simple reason that in his view (which was, in fact, an erroneous view based on an overruled authority) dismissed the application upholding the plea that the appellants, being the legal representatives of the deceased tenant were not liable for the default committed by the deceased tenant. It was, however, open to the appellant to advance his submissions on the plea, which he is now taking before this Court, by filing the cross-objections in the first appellate Court. When I pointed out this to the learned counsel for the appellant his reply was that the provisions of {{FOOT NOTE}}
(1) PLD 1980 Pesh. 163 (2) PLD 1965 Lah. 126
(3) PLD 1968 Lah. 1101 (4) PLD 1961 Lah. 137 {{FOOT NOTE}} Civil Procedure Code, 1908 being inapplicable to the proceedings under the West Pakistan Rent Restriction Ordinance, it was not open to him to file cross objections to the first appeal. It is true that the provisions of the C P. Code are not applicable to the rent proceedings, but the principle being beneficial one could be resorted to. Moreover, the 1st appeal was being heard and determined as an appeal from an original decree under section 96 of the Code of Civil Proceedure, 1908. My view, therefore, is that the cross objections under Order XLI, rule 22, C. P. C. Could be filed by the present appellant in the 1st appeal.
10. The learned counsel for the appellant, however, strenuously argued before me that the deceased tenant had paid rent up to January, as stated in the legal notice dated 10th April, 1969 given to the respondent and the same assertion finds place in his written statement.
' He further submitted that the deceased tenant sent 3 money orders towards rent for the months of February, March and April 1969, but the respondent refused to accept the same. To prove the fact of the non-acceptance of the rent, he also referred to the evidence of two witnesses.
11. The point for consideration would, in fact, be the proof of payment of rent for the period starting from June 1968 to January, 1969, because the money order coupons are sufficient to indicate that the rent for the months of February, March and April 1969 was tendered by the deceased tenant. In this view of the matter, the evidence of the two witnesses produced by the appellant is of no avail.
Now, to prove the non-payment of rent for the period indicated above the respondent has examined himself and stated that the deceased tenant has paid rent upto 31st May, 1968 whereas, the appellants examined the brother of the deceased, besides the above two witnesses. The brother of the deceased stated in his evidence that the rent had been paid up to December 1969.
He stated that the rent was being paid some time by his brother and some time by him. He further deposed that the respondent never acknowledged the receipt for the rent paid to him as the parties were related to each other. He also stated that he had offered rent to the respondent for the month of January, 1969 through the above-named witnesses but the same was refused by the respondent who demanded Rs, 35 per month at the increased rate. According to him, therefore, the rent up to January, 1969 was paid to the respondent and that the rent for February, March and April 1969 was tendered by money order to the respondent who refused to accept the same. The reason for not accepting the rent as assigned by this witness as well as the other two witnesses was that the respondent wanted to increase rent from Rs, 25 to Rs, 35 per month, but it is quite significant that no such reason has been stated by the deceased tenant in his notice Exh. 67 sent through his Advocate nor any such pleas was taken by the deceased tenant in his written statement filed by him. Further, the brother of the deceased tenant has not produced any evidence connecting himself with the payment of rent made by him on behalf of his brother during his lifetime. There is no allegation in the notice. Exh. 67 about the non-issuance of receipts by the respondent. In the written statement the deceased tenant had however, stated that the respondent avoided to issue the receipts (this is as per agreed translation of the written statement made before me by the learned counsel for the parties).
12. It would normally look strange that a tenant asks for the receipt but the landlord continuously avoids and nothing further is done by the tenant but in the circumstances of the present case it does not look so abnormal due to the alleged relationship of the parties but when the relations seems to be strained resulting in sending the rent by money order and giving a legal notice by the deceased tenant to the respondent it seems to be quite necessary for him that he should have, at least, stated the fact about the non-issuance of the receipts by the respondent. The money order tokens as well as the notice are silent on this point. This state of events cast a heavy burden on the appellant to prove the fact of the payment of rent. Furthermore, there are inconsistencies in the statements of the appellants, witnesses which have made their evidence as doubtful. In my assessm ent, therefore, the lower Court was justified in not believing the evidence produced on behalf of the appellant. Learned counsel was unable to show me anything so as to substantiate his plea of misreading of evidence by the Courts below. The second contention, therefore, also fails.
13. So far as to plea of arbitrary exercise of discretion by the Courts below is concerned it was neither pleaded before the Court below nor any material has been placed on record to show that the discretion exercised by the Courts below was arbitrary. I, therefore, find no force in this contention as well.
14. In the result, I dismiss the appeal with costs. Learned counsel for the appellants requests for for months time to be given to his clients to vacate the premises. I, accordingly, direct the appellants to hand over the vacant possession of the premises to the respondent within for months from today subject to their depositing rent in the Court of Rent Controller.