' This is a first rent appeal against the order, dated 30th October, 1980, passed by the learned X Senior Civil Judge and Rent Controller, Karachi in Rent Case No, 1131 of 1968.
2. The brief facts leading to the filing of the above case are that the tenement in question was transferred in 1965 by the Settlement Department to respondent No,
1. Respondent No,1 filed aforesaid rent application against respondent No, 2 as he was the recorded tenant as per averment in the rent application. However, the appellant upon his application was impleaded as respondent No,
2. It was averred by him in his written statement that he was the tenant on the relevant date, namely, before 20th December, 1958 and not respondent No,
2. It was also pleaded that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) was served. The learned Rent Controller framed a preliminary issue and by his order, dated 24-9-1975 dismissed the above rent application on the ground that no notice was served under section 30 of the Act.
3. Respondent No, 1 being aggrieved by the above order filed Appeal No, 632 of 1975, which was allowed by the learned 1st Additional District Judge, Karachi by an order, dated 17-11-1976 and the case was remanded back to the learned Rent Controller. After the above remand order the case proceeded with. Respondent No, 1 examined her husband and attorney Mr. Shafi Muhammad and also examined one witness from the Settlement Department, whereas appellant examined himself and two witnesses namely, Yaqoob and Jumaji. The learned Rent Controller after hearing the case allowed the rent application on the ground of default by his above order under appeal, dated 30- 10-1980. The appellant being aggrieved by the above order has filed the present appeal.
4. Mr. Ismail Padhiar, learned counsel for the appellant has argued that the learned Rent Controller has failed to take into consideration the documentary evidence on record which proves that the appellant was in possession of the tenement in question much prior the target date namely 20-12- 1958 under section 30 of the Act, the person in occupation should be in possession of the tenement within the purview of section 2(6) of the Act.
5. I have gone through the evidence on record and find that there are some documents which may be relevant for the purpose of deciding the question, whether factually the appellant was in possession prior to the target, dated 20-12-1958, but I would not express myself definitely as I am inclined to remand the case to the learned Rent Controller with the direction to provide further opportunity to the parties to lead evidence on the question, whether factually the appellant was in possession of the tenement in question prior to 20-12-1958. However, I am inclined to hold that in order to seek protection under section 30 of the Act, an occupant should be in undisputed possession. It is not necessary that an occupant should be in possession of the tenement in pursuance of some allotment or order of the Custodian Department. In this regard, reference may be made to the case of the Bank of Bahawalpur Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1977 SC 164, in which their Lordships have pointed out that the defining of possession given in section 2(6) of the Act was changed by Ordinance No, 53 of 1959, which came into force on 28-9-1959 by adding the following proviso as proviso (2)-- "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."
6. It may be pointed out that in pursuance of the above addition in section 2(6) of the Act, the Government of Pakistan issued Notification No, F-1(27)/59-S.I, dated 13-10-1959 providing that the person in undisputed possession of the house or the shop since before the twentieth day of December, 1958 shall also be deemed to be in possession for the purposes of the Act. In my view, because of the above notification any person in undisputed occupation of a house or a shop shall be deemed to be a statutory tenant for the purposes of section 30 of the Act. The same view has been taken by a learned Single Judge of this Court in the case of Viqar Haider v. Kaneez Fatima and others CLC 1983 91. I agree with the above view.
7. I, therefore, allow the appeal and remand the case to the learned Rent Controller with the direction to provide opportunity to both the parties to lead further evidence on the question, whether the appellant was in possession of the tenement in question prior to 20-12-1958. It is the grievance of respondent No, 1 that since the date of the transfer of the tenement, she has not received any rent. Mr. Ismail Padhiar, learned counsel for the appellant has no objection if respondent No, 1 is allowed to withdraw the rent deposited by the appellant without prejudice to her contention in the rent case. I would further order that the rent already deposited or which may be deposited in future may be paid to the respondent No, 1 without prejudice to her contentions in the rent case. The learned Rent Controller shall dispose of the case within six months from the date of receipt of the copy of this order. The appeal stands disposed of with no order as to costs.