The appellant above named, being aggrieved by judgment dated 14-11-1975 and decree dated 20th December, 1975, passed by Additional District Judge, Larkana in Appeal No. 46 of 1972, has preferred this appeal, inter alia on the following facts and grounds :-- 1-A. The appellant filed Rent Application No. 24 of 1976 in the Court of Civil Judge and Rent Controller, Shahdadkot under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, against one Jamiatmal son of Kewal Ram, who died during the pendency of the proceedings and as such present respondent was brought on record as a legal representa--tive of said Jamiatmal. The appellant claimed 'to be the owner of house bearing C. S. No. 681, Ward 'A'
Shahdadkot in which he was residing with his were. According to appellant, Jamiatmal the original opponent in the original ejectment application was his relative and was staying with him since about six years, as he was unable to get any other house for his residence. The appellant had alleged, that deceased Jamiatmal had agreed to vacate the house, if so desired by the appellant.
According to appellant the deceased was paying Rs. 7 p.m. As rent. The appellant alleged in the ejectment application, that he required the premises in occupation of the original opponent for his personal and bona fide use and the original opponent has failed to vacate the same, in spite of his promises. The appellant further alleged in the said ejectment application, that the original opponent has failed to pay him rent for 43 months, as appellant had asked the original opponent to vacate the premises in his occupation. The original opponent filed his written statement in the said ejectment application, in which, he stated, that the house in question was originally evacuee property in the half portion thereof he had been residing since 17 years or so. The original opponent further stated that the half house which he was occupying was in his possession in his own right, since last 17 years. The original opponent further stated, that five years back the appellant had mentioned to him, that he had purchased the said house from Settlement Authority and as such called upon him to pay the rent. According to the written statement of the original opponent, he has asked, the appellant to show relevant papers of his ownership, in spite of this the appellant failed to show any papers. However, the original opponent stated, that he started paying rent to the appellant to avoid litigation. The original opponent further stated, that the rent of entire house was Rs. 7 per month. The original opponent also denied, that the appellant required the premises in his occupation for his personal and bona fide use. The original opponent further stated that appellant wanted opponent to pay enhanced rent, which the opponent had refused and as such the appellant has filed the ejectment application in question. The original opponent further stated in his written statement, that he had tendered rent to the appellant, but the appellant refused to accept the same, as opponent demanded previous receipts from the appellant. The original opponent in his written statement further stated, that the said ejectment application was not maintain--able, as notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not given to him by the appellant and as such the learned Rent Controller had no jurisdiction to try the case.
2. That on the basis of the pleadings of the above parties, the learned Rent Controller framed the following issues :-
(1) Whether the (Original) opponent was protected from ejectment under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958?
(2) Whether the ejectment application is premature in the absence of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958?
(3) Whether the Court has no jurisdiction to try the case?
3. The learned Civil Judge and Rent Controller Shahdakot, vide his order dated 21-2-1972, gave his findings on the above preliminary issues and held that the original opponent was a contractual tenant and not a statutory tenant and as such protection of- section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not available to him and decided the said issues accordingly; and, thereafter, the learned Rent Controller framed the following issues, on merits :-
(i) Whether the opponent (the predecessor-in-title of present respondent) was a defaulter?
(i.e Whether the applicant/appellant needed the property for his personal and bona fide use?
(i.e) What. Should the order be?
4. The learned Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided Issue No. 1 in the affirmative and Issue No. 2 as not proved and allowed the rent application on the ground of default only, vide his order dated 30th June, 1972. . .
5. The original opponent being aggrieved by order dated 30th June, 1972, of the learned Rent Controller, filed Appeal No. 45/1972 in the Court of District Judge, Larkana, which was ultimately transferred to the Court of and Additional District Judge, Larkana, and pending disposal of the said appeal, the original opponent died and as such his widow, the present respondent was brought on record. The Had Additional District Judge, Larkana, by his judgment dated 14th November, 1975, allowed the said appeal and set aside the order dated 30th June, 1972 of the learned Rent Controller, for the reasons given in the said judgment.
6. The appellant above named, being aggrieved by the judgment dated 14th November, 1975 of the and Additional District Judge, Larkana, has preferred this Second Appeal, on the grounds mentioned in the memo of Appeal.
7. The First Appellate Court had disposed of the appeal by setting aside order dated 22nd January, 1972 of the learned Rent Controller by which the learned Rent Controller had decided the preliminary issues in favour of the present appellant and came to the conclusion that Rent Controller had no jurisdiction to entertain the ejectment application in question and consequently, without going into the merits of the order dated 30th June, 1972, passed by the learned Rent Controller, by which be granted the ejectment application on the ground of default, filed by the present appellant, set aside the said order, as being without jurisdiction and allowed the First Appeal and set aside the order dated 30th June, 1972 of the learned Rent Controller, in view of his finding, that the learned Rent Controller had no jurisdiction to entertain the ejectment application in question, as admittedly no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was served by the appellant on the respondent, as he came to the conclusion that the respondent was in possession of -the disputed premises prior to 20th December, 1958 and as such he became a statutory tenant of the appellant and was entitled to the protection of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
8. I have taken into consideration the arguments advanced by the learned counsel of both the parties and have also gone through the order and judgment of both the learned Lower Courts.
9. The main point which, in my opinion, has been overlooked by the First Appellate Court as well as by the leaned counsel for the parties before me is the effect of repeal of section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 by Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, XV of 1974, which was promulgated on 30th December, 1974 and promulgation of evacuee property and Displaced Persons Laws (Repeal) Act, No. XIV of 1975 on 28th January, 1975, by which the Displaced Persons (Compensation and Rehabilitation),] Act, 1958 was completely repealed except to the extent of saving clauses mentioned therein, on the preliminary issues raised on the basis of the pleadings of respondent, before the learned Rent Controller. This question has been considered by my learned brother K. A. Ghani, J. In his unreported judgment dated 9th November, 1980 in Second Appeal No. 162 of 198 Muhammad Anwar v. Abdul Majid and others in which my learned brother has come to the conclusion after giving cogent reasons, which are fully supported by the various authorities discussed by him in the said judgment, that the protection of section 30 of the Displaced Persons (Compensation ands Rehabilitation) Act, 1958 on account of repeal of the said section on 30 December, 1574 and repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on 28th January, 1975 was no more available to the occupants of evacuee properties transferred under the Settlement Laws. I am in respectful agreement with this decision of my learned brother K. A, Ghani, J, for the reasons given by him in his unreported judgment dated 9th November, 1980 and as such I am of the opinion, that judgment dated 14th November, 1975 of the learned and Additional District Judge, Larkana,l by which he came to the conclusion that the learned Rent Controller had no jurisdiction to entertain the ejectment application before him, in view oil the failure of the present appellant to have given notice under section 301 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958 cannot sustained and consequently, I set aside the judgment dated 14th November 1975 and decree dated 29th December, 1975 of the and Additional District Judge, Larkana, passed in Appeal No. 46 of 1972 and remand back the said appeal to him to dispose of the same on merits, as far as the order of the learned Rent Controller dated 30th June, 1972 is concerned, on question of default.
10. In view of the circumstances and facts of the above appeal, I pass no orders as far as costs are concerned.
11. 1 have refrained from considering the order dated 30th June, 1972 of the learned Rent Controller in respect of his finding on Issue No. 1, as the learned First Appellate Court has not at all considered this question while disposing of Appeal No. 46 of 1972, and as such have remanded back the appeal to the First Appellate Court for disposing of the said appeal on merit, after affording opportunity of hearing to both the parties.th