1. ' The facts relevant for the disposal of this second appeal are that Hazrat Gul, the father of respondents herein had attorned as tenant to the appellants herein qua the demised property bearing Nos. 3446, 3446/1 and 3447 situate at Ashraf Road outside Katchery Gate Peshawar City. In the events that happened, the Chairman District Evacuee Trust Property Board Peshawar directed the said Hazrat Gul to stop paying rent to the appellants with respect to the demised property on the ground that the same is evacuee Trust Property. The record shows that 'the appellants and the Evacuee Trust Board approached the Land Settlement Commissioner to assert before him title to the disputed property. The learned Settlement Commissioner in his turn made two references to the Deputy Custodian of Evacuee Property for determination of the question whether the disputed property is evacuee property or non-evacuee one. In the proceedings before the learned Deputy Custodian, Hazrat Gul, the predecessor of respondents herein refused to accept notice while no body turned up on behalf of the Trust Board and so they were placed ex parte. The learned Deputy Custodian, therefore, proceeded to examine the evidence on record and found that the disputed property is not evacuee property but it is owned by the appellants, vide his order dated 15-12-1970 which order was subject to confirmation by the Custodian, before whom on the objection of the Trust Board, the references were remanded to the Deputy Custodian with direction to go into the question whether the disputed property is the same property or some other property. The learned Deputy Custodian again sifted the evidence on record and again came to the conclusion that the disputed property is not a different but is the same property owned by the appellants, vide his order dated 28-12-1971 which order was consequently confirmed by the learned Custodian Evacuee Property by his order dated 5-9-1972.
2. ' In the above circumstances, as the appellants were declared owners of the disputed property, they again asked Hazrat Gul, the predecessor of the respondents herein, to pay them arrears of rent and to continue future monthly rent as their tenant but he refused. The appellants, therefore, filed an eviction application before the Rent Controller for the ejectment of Hazrat Gul on the grounds of default in payment of rent, subletting the demised property and also that he has damaged the same. The learned Rent Controller after contest between the parties, allowed the eviction application and directed the ejectment of Hazrat Gul mainly on the ground of default in payment of rent, vide his order dated 14-4-1981. Meanwhile Hazrat Gul died and out of his legal heirs only respondent No, 1 filed appeal in the District Court against the order of the Rebt Controller.
3. The learned Additional District Judge who heard the appeal allowed the same on the ground that no notice under section 13-A of the Urban Rent Restriction Ordinance, 1959 was served upon the respondents, vide his order dated 12-11-1983. Hence this second appeal by the appellants.
4. I have heard the learned counsel for the parties and perused the record. I consider that upon the facts of the present case, the learned Additional District Judge was wrong to hold that notice under section 13-A of the Ordinance was necessary. It escaped his notice that respondent No, 1 had refused to tender rent to the appellants on their demand. Respondent, No, I had admitted this fact in his e% idence, the moreso as he further admitted that he did not tender any rent to the appellants from January, 1963. Thus there is no question in this case that before the A appellants were to seek eviction of the respondents from the demised property, he had never approached the respondents to attorn to them and to pay them rent. There can be no cavil with the fact that Hazi at Gul or for that matter his legal heirs were well aware that the demised property is owned by the appellants and yet they refused to pay them rent. It is not the case of the respondents that the eviction proceedings were brought against their predecessor, namely, Hazrat Gul, at his back and he had no prior knowledge that the demised property was owned by the appellants. Hazrat Gul was the tenant of the appellants before the question of ownership was decided by the learned Custodian in favour of the appellants and thereafter again the appellants informed Hazrat Gul that they are owners of the demised property and he should pay them arrears of rent and to continue monthly rent in future. In these circumstances, Hazrat Gul or for that matter his legal heirs were bound to attorney to the appellants and in a case of this nature there was no need of serving any notice upon Hazrat Gul under section 13-A of the Ordinance. I observe that notice under section'13- A of the Ordinance is to be served when the tenant is not B aware that the demised property was owned by another person from the previous landlord. There is no such question in this case nor indeed can it be agitated. I consider that in the facts and circumstances of the case, the conduct of the respondents is such which renders them disentitled to any relief. The learned Rent Controller was, therefore, right in directing their ejectment front the demised property and the learned Additional District Judge was wrong to interfere with his order in appeal.
5. As a result, I accept this appeal and while setting aside the impugned order of the learned Additional District Judge restore that of the learned Rent Controller. The respondents are allowed three months period for the vacation of the demised premises to the appellants. No order as to costs.