This second appeal is directed against the learned District Judge's order dated 25th July, 1977, whereby he rejected the appellants' first appeal and maintained the learned Rent Controller's order dated 16th May, 1973, evicting them from the property in dispute.
2. The respondent filed a petition against appellant No. 1 for her eviction from the room forming part of the property transferred to him by the Settlement authority. It was pleaded that despite service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, she committed default in the payment of rent. Bona fide personal need was the other ground averred in the ejectment petition.
3. Appellant No. 1 contested the petition and asserted that no notice under section 30 was served on her, and if any notice was sent that was illegal and void, as it was not in accordance with the provisions of section 30. She also raised a plea that her sons, namely, Ghulam Mustafa and Ghulam Murtaza were in possession of the room in dispute and thus, they would be deemed -to be the tenant.
It appears that, later on, appellant No. 2 was impleaded as respon--dent and he contested the case throughout. So far as appellant No. 1 is concerned, she was proceeded against ex parte on 7th January, 1965, The circumstances under which the ex parte proceedings were conducted against her are, that on 20th October, 1964 the learned Rent Controller was on leave and the case was adjourned to 23rd November, 1964, but on this date she did not enter appearance. Notice was sent to her for 5th December, 1964 but she could not be served. The learned Rent Controller by his order dated 5th December, 1964 directed for substituted service. The direction having been complied with on 7th January, 1965 he ordered ex parte proceedings against appellant No. 1. Her son, i.e. Appellant No. 2, however, was present in the Court on that date. She moved an application for setting aside the ex parte proceedings, but it was rejected on 1st January, 1965 without recording the evidence.
4. The service of notice under section 30 was the main issue between the parties. To prove this issue the respondent tendered in evidence copy of the notice Exh. P. 2, A/D receipt Exh. P. 3 and copy of the Rehabilitation Department's survey register Exh. P.
5. Besides his own testimony, he examined Muhammad Shafi (P. W. 1), Record Clerk of the G.P.O. Lahore, and Nazir Ahmad Postman (P. W. 2). As the record of the registered envelope containing the original of the notice Exh. P. 2, by lapse of time, was destroyed by the Post Office authorities, the oral evidence in respect of service of notice is not of much help. Both the learned Courts below referred to the written statement of appellant No. 1 and found that regarding receipt of notice her denial was evasive. They also referred to Exh. P. 5 wherein appellant No. I was recorded as occupant of the property in dispute, to negative the appellant's conten--tion -hat her possession was merely subservient to that of her son; who was claimed to be the real head of the family.
5. As to the service of notice, the learned Rent Controller was also influenced by the fact that the notice was correctly addressed to appellant No. I and held that it was duly served on her. He also maintained that notice Exh. P. 2 satisfied the requirements of law. The learned District Judge, too, heavily relied on the presumption regarding service of notice and besides the written statement of appellant No. 1, he additionally strengthened his this inference, by reference to the better statement of appellant No. 2, which was recorded by the learned Rent Controller on 15th January, 1965 to the effect that he did not remember as t to when notice was. Received by his mother.
6. The learned Courts below thus returned a concurrent finding against appellant No. 1 that she alone enjoyed the status of a statutory tenant notice under section 30 was duly served on her and that the rent having not been paid she was liable to be evicted .
7. I have heard the learned counsel for the parties and examined the record. The first submission of the appellants' learned counsel was that the ex parte proceedings held against appellant No. I were illegal. He argued that no serious effort was made to effect the service on her and, therefore, the substituted service ordered by the learned Rent Controller could not be sustained. He also made a grouse over the learned Rent Controller's failure to record evidence on the appellants' application for setting aside the ex parte proceedings.
8. After perusal of the file I am unable to agree with the learned counsel. The learned Rent Controller is not bound to follow the technicalities of the Civil Procedure Code, and as held in Khadim Mohyuddin v. Rehmat Ali(PLD 1965 SC 459) under the Rent Restriction Ordinance. 1959, the mode of inquiry has been left to him. The son of appellant No. 1 has been appearing in the Court both the mother and the son reside under the same roof ; she, therefore, could not have been unaware of the date of hearing. The ejectment petition was filed in September 1961 and till January, 1965 the case was yet at the preliminary stage. While rejecting the appellants' application, from the perusal of the file, the learned Rent Controller found, that appellant No. 1 had been served. He thus gained the impression, which I also share, that her absence was not undersigned. It is to be noticed that there was no bar for appellant No. 1 to have joined the proceeding after she was proceeded against ex parte. The evidence was recorded long after the order dated 7th January, 1965, but she never participated in the proceedings. Significantly, both the appellants were represented by the same counsel, who filed his power of attorney on 9th September, 1969 and the material evidence was recorded after this date.
Seemingly, the ex parte order did not work to the prejudice of the appellant No. 1 in any manner. In the circumstances of the case, there is no reason to strike down the ex pane proceedings conducted C against her.
9. The learned counsel then questioned the reliance of the learned Courts below on the copy of the survey register Exh. P.
5. It was argued that the entries in the survey register were. Mainly the foundation of the findings of the learned Courts below that appellant No. 1 was alone in possession of the property in dispute, for the purposes of notice under section 30 of the Act. 1t was further submitted 'that these entries were not authentic the findings of the Courts below, therefore, were liable to be interfered with. For his these submissions the learned counsel sought support from Mst.
Nawab Bibi v. Sher Muhammad and others (1974 Law Notes 563) and Muhammad Rarrizan v. Jamil Shah (PLD 1967 Pesh. 380).
10. It is discernible from the record that the findings questioned by the learned counsel were arrived at by the learned courts below after appreciation of the entire material on the file. Exh. P. 5 was tendered in evidence by the respondent on 23rd September, 1969. Appellant No. 2 appeared as his own witness about 3 months thereafter, but he did not question the entries of Exh. P.
5. This document is part of the public record and the entries made therein were recorded by a public servant in the discharge of his official duties. Exh. P. 5 was, therefore, rightly received in evidence to prove the facts stated therein. In Mst. Nawab Bibi's case a learned Single Judge of this Court took the view that the information contained in the survey registers is not authentic, but I do not think that the observations made in this ruling were intended to lay down an absolute proposition that in all cases, the authenticity of every survey register is dubious. Each case has got to be decided on its merit and the material on the record. There is nothing on the file to substantiate the suggestion that the entries in Exh. P. 5 are D not trustworthy. As regards the other precedent, I find that the entries in the excise and taxation record qua the relationship of landlord and tenant were the subject matter of this ruling. The rule laid down in ibis case is thus of no help to the appellants.
Whether or not appellant No. 1 or was in possession of the house in her own right is a question of fact. Both the Courts below returned findings on this point against the appellants. They have failed to make out a case for interference with this finding of fact in second appeal.
11. It was lastly argued that the service of notice on appellant No. 1. I was not proved and the learned two Courts below were wrong to hold that the notice was served. The (earned counsel referred to the illustration `f' of section 114 of the Evidence Act to urge that the presumption, that common course of business was followed and the letter was received by appellant No. 1 is a rebuttable presumption and is merely permissive in character.
12. The construction put by the learned counsel on illustration 'f' of section 1.14, is not ill founded but the provision more relevant on the point in issue, is section 27 of the General Clauses Act, 1897 which ordains that by posting a properly addressed letter, by registered post, the service shall be deemed to have been effected, unless the contrary is proved. Thus the burden of proof lies on the addressee to establish that the service was not effected on him. It is not disputed that notice Exh. P.
2 was sent to appellant No. 1 by registered post and was correctly addressed. The argument advanced on her behalf, however, is that the Acknowledgement Due receipt Exh. P. 3 does not bear the signatures of appellant No. 1, and in fact it is signed by someone else in English, whereas she is an illiterate lady. It is submitted that Exh. P. 3 itself shows notice was never delivered to Mst. Ghulam Fatima, appellant No. 1.
13. I am unable to agree with the learned counsel. The evasive denial of appellant No. 1 in her written statement regarding the service of notice, coupled with the statement dated 15th January, 1965 of appellant No. 2 that he did not remember as to when the notice was received by his mother, strengthen the presumption contemplated by section 27 of the General Clauses Act that appellant No. 1 was duly served with a notice. It was on appreciation of these as well as other facts, including the despatch of correctly addressed letter to her by pre-paid registered post, that the learned two Courts below held that the notice was served on her. When a conclusion has been reached on an appreciation of number of facts, then the soundness of such conclusion should be adjudged by weighing the accumulative effect of all the facts rather than to assess each fact, individually. Merely because the A/D. Receipt was signed by someone else does not demolish the presumption envisaged by section 27 of the Act. The onus was on appellant No. 11 but she did not enter the witness box to deny the service of notice. .... If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself."
I feel that in the circumstances of the case the service of notice on appellant No. 1 was sufficiently proved and the finding of the learned Courts below in this respect, is not open to exception.
14. As a result of this discussion, the appeal fails and is hereby dismissed. The costs throughout shall be borne by the appellants.