' NASIR ASLAM ZAHID, J.-The appellants are the legal represen tatives of late Muhammad Saeed, the original tenant and the respondents are the legal representatives of late Mukhtar Ahmed, the original landlord. Originally an Ejectment Application No,449/64 was filed by Mukhtar Ahmed against Muhammad Saeed for ejectment. This ejectment application was filed by Muktitar Ahmed claiming to be transferee from the Settlement Department of the premises in question P.T.O. had been issued to Mukhtar Ahmed on 2-3-1961 and P.T.D. had been issued in his favour on 19-3-1962. In the ejectment application the rent was claimed at Rs,100 per month and the ejectment of Muhammad Saeed was sought on the ground of default in the payment of rent with effect from 1- 7-1963. By order dated 1-11-1965 of the learned Rent Controller the rate of rent was fixed at Rs,50 per month but the ejectment application was dismissed on the ground that notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had not been given to Muhammad Saeed. Mukhtar Ahmed then filed Civil Appeal No,967/65 against the order dated 1-11- 1965 of the Rent Controller dismissing the first ejectment application filed by Mukhtar Ahmed.
During the pendency of this appeal, Muhammad Saeed died but his legal heirs were not brought on record. This appeal was however dismissed on 3-11-1967 for non-payment of court-fee and for not bringing the legal representatives of Muhammad Saeed on record During the pendency of the aforesaid appeal, a D.W. Application No:91/66 was filed in the Small Causes Court, Karachi by Mukhtar Ahmed against Muhammad Saeed for recovery of rent and the second Ejectment Application No,455/66 later on re-numbered as Rent Case No,1705/67 was filed on 30-9-1966 by Mukhtar Ahmed against the legal representatives of Muhammad Saeed who are now the appellants before this Court. The ejectment application was filed on the ground of default and unauthorized construction. In the ejectment application the period of default was not mentioned but it was stated that arrears of rent amounted to Rs,2,112 In para, 10 of the ejectment application it was mentioned that the landlord has served a legal notice dated 11-2-1966 but the opponents had failed to pay the rent to the landlord Mukhtar Ahmed. A written statement was filed by Muhammad Aqil, appellant No,3, In his written statement appellant No,3 admitted the relationship of landlord and tenant between Mukhtar Ahmed and the legal heirs of Muhammad Saeed. The default was denied. It. was averred that previous rent application had been dismissed on 1-11-1965 and Muhammad Saeed had died on 23-11-1965 and Mukhtar Ahmed had filed Appeal No,967/65 against the dismissal order of the previous ejectment application in the Court of District Judge, Karachi. It was pleaded that during the pendency of the appeal Mukhtar Ahmed filed the second ejectment case without waiting for the result of the appeal and as such the ejectment application was barred under the law. It was further mentioned that the appeal had been dismissed on 3-11- 1967. In para 14 of the written statement it was mentioned that on 11-2-1966 Mukhtar Ahmed had sent a notice to the heirs of the deceased Muhammad Saved that Suit No,449 was pending in the Court of IVth Civil Judge, Karachi against Muhammad Saeed although it had been dismissed on 1- 11-1965. In para 18 of the written statement it was mentioned that the opponents were ready and willing to pay the rent and they had already paid Rs,3,665 up to 25-5-1967 and they were not defaulters within the provisions of law. The following issues proposed by learned counsel for the landlord were adopted by the Rent Controller:- "(1) whether the opponents have failed to tender rent within statutory period and have committed default?
(2) Whether the opponents have committed such acts which have materially impaired the value and utility of the premises in question?
(3) Whether the opponent has raised unauthorized construction of a cabin without the written permission of the applicant?
(4) What should the order be?"
' By order dated 9-9-1981, the Rent Controller allowed the ejectment application on the ground of default. On Issues !Nos.2 and 3 the finding of the Rent Controller was that the landlord' had not proved his case of causing damage to the-property and raising unauthorized construction. On the question of section 30 notice the relevant portion of the Rent Controller's order reads as follows:- "This all clearly shows that opponents were in arrears of rent and have clearly default in payment of rent as they have failed to pay or tender the rent after the service of section 30 notice of the D.P.Act within the mandatory period of 90 days and thereafter so they are defaulteRs, ' The opponent Advocate has contended that no valid or proper notice as required by section 3(1 of the D.P.' Act was served on the opponent but this contention of the Advocate has no force as this plea was neither taken by the opponent in their written statement nor in the evidence. On the contrary the opponents in their written statement have admitted the service of notice and have produced the reply of the same which is available on record as Exh.8. Since the service of notice was admitted in that the opponents Advocate cannot contain that no valid or proper notice was served on the opponents. So in view of the admission non-production of notice and A/D in no way effect the case of the applicant."
' Being aggrieved by the order dated 9-9-1981 of the Rent Controller ordering their ejectment, the appellants have filed this present first rent appeal against the legal representatives of Mukhtar Ahmed who had since died. I have heard Mr.Khalilur Rehman, learned counsel for the appellants and Mr.M.Abdul Karim Siddiqui, learned counsel for respondents.
2. The main question that requires consideration in this appeal is whether a proper notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had been served by the landlord upon the tenants, the property in question having been trans ferred to the landlord by the Settlement Department. It is an admitted position, that copy of notice and/or acknowledgment receipt had not been produced by the respondents. The respondents relied upon the averment in para. 10 of the ejectment application that the landlord served a legal notice dated 11-2-1966 but the appellants had failed to pay the rent to the landlord and paras. 10 and 15 of the written statement. In para 10 of the written statement, para. 10 of the ejectment application was admitted subject to additional pleas. In para. 15 of the written statement it was mentioned as observed earlier that on 11-2-1966, the landlord had sent a notice, to the heirs of the deceased Muhammad Saeed that Suit No,449 was pending in the Court of IVth Civil Judge, Karachi against Muhammad Saeed although the suit had been dismissed on 1-11-1965. According to learned counsel for appellants, from the pleadings of the parties it is not admitted a valid notice under section 30 of the 1958 Act had been served by the landlord upon the appellants. It was further argued that under the law it is mandatory for a transferee from the Settlement Department to serve a notice under section 30 of the 1958 Act upon the occupants of the transferred property if they were in possession since a date prior to 21-12-1958. Reliance was placed on the case of F.A.
Evans v. Muhammad Ashraf decided by the Supreme Court PLD 1964 SC 536. Mr. Abdul Karim Siddiqui, learned counsel for respondents conceded that it was mandatory upon every transferee of an evacuee property to serve the occupants with a section 30 notice in order to maintain an ejectment application and this was necessary till the 1958 Act remained in force. It may be noted here that this Act and other evacuee laws were repealed with effect from 30-6-1974. However, the contention of the learned counsel for respondents was twofold. It was firstly argued that neither in the written statement nor in the evidence any plea about section 30 notice had been raised and as such in this appeal, objection about, non-service of section 30 notice cannot be taken by the appellants. The other contention was, that from the written statement itself it had been admitted by the appellants that section 30 notice had been served upon the appellants and as such they were estopped from raising the plea that a proper notice under section 30 had not been served upon the appellants.
As regards first contention it may be observed that the plea about section 30 notice is not being raised for the first time in this appeal. In fact from the order dated 9-9-1981 of the Rent Controller it is apparent that the plea about non-service of section 30 notice had been raised before the Rent Controller. Then issue No,1 implies that the objection about section 30 notice had been raised as the issue refers to statutory period. It had already been observed that the issues proposed by the counsel who was then appearing on behalf of the landlord had been adopted by the landlord. In this view of the matter the contention of learned counsel for respondents that the plea about non- service of section 30 notice is being raised for the first time in this Court and the same should not be allowed to be raised cannot be accepted.
3. As regards the admission in the written statement about service of notice under section 30, no doubt there is a mention in para. 10 of ejectment application that the landlord has served a legal notice dated 11-2-1966 but nowhere it is mentioned that the notice that had been served was a notice under section 30 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958. It is an admitted position, that coy of the notice dated 11-2-1966 had not been produced in evidence by the landlord. The registered acknowledgment card had also not been produced. I asked the learned counsel for the respondents to show me a copy of the notice dated 11-2-1966 so that even at this stage it may be considered whether the notice dated 11-2-1966 as in fact a notice under section 30 and that it complied with the requirements of that section but learned counsel for respondents expressed inability to produce the copy of the notice on the ground that the file had been received from the previous Advocate and in spite of efforts copy of the notice had not been located. It was, however, contended by learned counsel for respondents that the original notice must be in possession of the appellants and they should have produced the notice before the Rent Controller in the evidence. In my view the burden of proving that a proper notice under section 30 had been served upon the appellants was upon the landlord and if the landlord did not produce a copy of the notice, failure of the appellants to produce original notice dated 11-2-1966 did not discharge their burden. The matter might have been different if it had been specifically pleaded that a proper notice under section 30 of the 1958 Act had been served upon the appellants and the appellants had admitted, that such a notice had been served. In this case, there is only a reference about the legal notice and not a notice under section 30 in para. 10 of the ejectment application and in the written statement although the service of such a notice is admitted, it had been subject to additional pleas and in the additional pleas it was mentioned that on 11-2-1966 the landlord had sent a notice to the heirs of deceased Muhammad Saeed that Suit No,449 was pending in the Court of IVth Civil Judge, Karachi against Muhammad Saeed although the suit had been dismissed on 1-11-1965 from these pleadings it cannot be implied that a proper notice under section 30 of the 1958 Act had been served upon the appellants.
4. PLD 1964 SC 536 lays down that a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 has to be served by the transferee of an evacuee property upon the occupant. In this case on the evidence on record I have reached the conclusion that such notice had been served upon the appellants and as such the ejectment application was not maintainable against the appellants. The finding of the learned Rent Controller that such a notice had been served and that there was an admission on the part of the appellants that a section 30 notice had been served upon them is not supported either by the pleadings or by the evidence on record. As a result F.R.A .No,546/81 is allowed and the order dated 9-9-1981 of the learned Rent Controller passed in R.C.1705/76 is set aside and the ejectment application filed by the respondents against the appellant is dismissed. There will be no order as to costs.
It may, however, be observed that power since the Displaced Persons (Compensation and Rehabilitation) Act, 1958 has been repealed, a fresh ejectment application can be maintained without giving a notice under section 30 of the said Act which is no longer in force.