MIAN BURHANUDDIN KHAN, J.-- Leave was granted in this case by this Court, per order dated 27- 11-1977 on the ground that even if the learned High Court Judge was satisfied that the petitioner had contumaciously denied to be the tenant of the respondent, the case should have been remanded to the learned Rent Controller to enable him to apply his own mind to the case and come to an independent conclusion on (i) whether the notice served by the respondent on the petitioner under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 was valid (ii) whether by the notice in question the respondent could claim to have become the landlord of the petitioner and (i.e) whether the High Court was right in directing the ejectment of the petitioner on the ground that he had wrongfully denied to be the tenant of the respondent or else should have remanded the case to the Rent Controller for decision on that point.
2. According to the facts of the case House No.CD.172-1553/1813 situated in Nanak Para, Peshawar City was transferred to the respondent Alaf Din by the Settlement Department. The respondent served appellant Muhammad Yusuf, who was in occupation of the said house as tenant of the Department, with a notice under section 30 of the aforesaid Act informing him that now he was his landlord and, therefore, he should pay to him the rent at the rate of Rs.30 per month. On receipt of the notice the appellant remitted to the respondent rent at the rate of Rs.8 per month, which he used to pay to the Settlement Department prior to the transfer of the house in question to the respondent. But this tender of rent was refused by the respondent contending that according to the latest assessm ent carried out by the Excise and Taxation Department the rent of the house was assessed at the rate of Rs.30 per month. Faced with this situation the respondent filed ejectment application in the Court of the learned Rent Controller Peshawar on the grounds of default and damage to the property.
3. The appellant, in his written reply to the aforesaid ejectment application, raised the question of validity of the notice under section 30 of the aforesaid Act and denied the title of the respondent of the house in question. On the factual side he stated that demand of the respondent of Rs.30 per month as rent was not proper and was against the law and, therefore, the appellant was not liable to pay the said amount. He also denied having caused any damage to the said property and further stated that he had been remitting Rs.8 per month to the respondent but the respondent refused to accept the same. The learned Rent Controller framed the following issues: (a)Whether the relationship of landlord and tenant exists between the parties?
(b)Whether this Court has got no jurisdiction to entertain this application?
(c)Whether no valid notices under section 30 of the aforesaid Act has been served on the respondent (present appellant)?
4. The learned Rent Controller held that the relationship of landlord and tenant did exist between the parties as the respondent had purchased the house in question from the Settlement Department and a Permanent Transfer Deed was issued to him, and this position was not denied by the respondent (present appellant) who has been remitting rent at the rate of Rs.8 per month which landlord had been refusing to receive. On issue (c) his finding was that there was no reason to hold that the notice under section 30 of the aforesaid Act was invalid. Concluding his order the learned Rent Controller directed the appellant to deposit rent at the rate of Rs.8 per month from 19- 12-1969 to 31-5-1973 tentatively before 15-6-193; and to continue to deposit the rent each month before the 15th of succeeding month at the same rate till the decision of the Ejectment Application, and the file was ordered by him to be placed before the Court for further proceedings on 15-6-1973.
On that date the Ejectment Application was dismissed and it was held that the tenant was remitting the rent at the rate of Rs.8 per month regularly which was refused by the respondent/ landlord and as such there was no default in the payment of rent, vide order dated 30-3-1974.
Appeal of the landlord/ respondent before the learned District Judge, Peshawar was also dismissed vide order dated 23-7-1975. Thereafter, second appeal was filed in the Peshawar High Court which resulted in the impugned order dated 1-4-1977, and a learned Single Judge while accepting the appeal placed reliance on Nisar Ahmad v. Nazar Muhammad PLD 1974 Lah. 489 and Muhammad Sadiq v. Nazeer Muhammad PLD 1976 Lah. 1078.
5. In the authorities mentioned above as well as in the decisions on the points involved in the matter, the tenants had persistently refused to acknowledge the title of the landlords. The said authorities, therefore, would not be attracted to the facts of the present case. On going through the evidence adduced by the parties we find that Alaf Din respondent has admitted in the cross- examination that the appellant had been tendering rent at the rate of Rs.8 per month after he served) the appellant with a notice under section 30 of the aforesaid Act, but, he refused to accept the same for the reason that it was less than what he demanded. The appellant himself appeared as a witness anti stated that the house in question, was purchased by Alaf Din respondent in auction; that he had filed no appeal against the order of the Settlement Department transferring the house to the respondent; and that he had been remitting the rent at the rate of Rs.8 per month which Alaf Din, respondent, however, had been refusing to receive. The appellant also produced Money Order Receipts Exh. P.W.1/2 EXh.P.W.l/7. Therefore, considering the facts of the case it cannot be said that the appellant had not acknowledged Alaf Din respondent as landlord and the default in payment of rent has to be examined in the circumstances of the present case. We, therefore, allow this appeal and remand the case to the learned High Court for decision of the case on merits.
No order as to costs.