' This appeal challenges order, dated 22-11-1986 passed by Civil Judge-cum-Controller, Quetta whereby appellant has been directed to hand over vacant possession of house in dispute to respondent.
2. Facts briefly stated are that on 21-5-1978 respondent filed an application for the eviction of respondent from house bearing Municipal No. 8-18/72 situated at Balochi Street, Kansi Road, Quetta. Respondent claimed that demised premises was purchased from its previous owner namely Sher Ali Khan by means of sale-deed registered with Sub-Registrar, Quetta at Serial No. 56, Book No. I of Volume No. 352 (page 202-203), dated 30-3-1977. It was alleged that thereafter a notice under section 13-A of Ordinance VI of 1959 (apprising the appellant about purchase of said house was sent on 6-4-1978 through registered post. Eviction was however sought on the ground of default in payment of rent from 26-3-1977 to 30-6-1978 and personal bona fide requirement.
' Appellant filed written statement on 1-8-1978 categorically denying the genuineness of claim and challenged bona fides of respondent/landlord about filing of eviction application. Relationship was also squarely disputed. For ready reference relevant portion of written statement is reproduced below:- "Preliminary Objections:
(a) That there is no relationship of landlord and tenant between the applicant and respondent as such eviction application against the replying respondent is not competent and deserves dismissal.
(b) That no notice as contemplated under the provisions of section 13-A of Urban Rent Restriction Ordinance VI of 1959 was served by the applicant on respondent.
' ON MERITS:
(1) That contents of para. 1 are not admitted. Replying respondent is tenant of previous landlord Sher Ali Khan and at present he is depositing rent in the name of Sher Ali Khan in the Bank with the permission of the Court and if applicant had purchased this property from Sher All Khan no notice under section 13-A of West Pakistan Urban Rent Restriction Ordinance VI of 1959 was given to the respondent.
(2) That contents of para. 2 are denied. As respondent is not tenant of the applicant, therefore, there is no question of paying rent to him. However, respondent is presently depositing rent in the name of previous owner in the Bank with the permission of the Court.
(3) That contents of para. 3 are not admitted. Applicant has got sufficient accommodation where presently he is residing but merely in order to have ground for eviction this frivolous plea for personal occupation is taken, otherwise, there is no bona fide in it."
' Since relationship was denied, therefore, keeping in view pleadings, learned Controller framed following preliminary issue on 7-8-1978:-
(1) Whether there exists relationship of landlord and tenant between the applicant and respondent?
' Respondent produced five witnesses apart from himself in support of his case. A .W.I Muhammad Aslam. A.W.II Muhammad Hanif gave statement regarding personal bona fide requirement of landlord. A .W.II Muhammad Aslam was dropped. However, A.W. IV Muhammad Amin Clerk of Registrar's office proved registered sale-deed Ex.A /1 whereas A.W.V Muhammad Riaz Ahmed, Advocate affirmed despatch of notice Ex.F/2 through registered post. Similarly respondent deposed about his personal requirement as well factum of purchase of house in dispute and issuance of notice to the appellant. In rebuttal appellant has examined four witnesses namely (i) Haji Dost Muhammad (ii) Mehr Ali (iii) Abdur Rehim and (iv) Abdul Khaliq apart from himself. They have maintained that house in dispute belongs to Sher Ali in who's favour rent is being deposited.
' On appraisement of evidence so adduced by parties learned Controller decided the preliminary issue in affirmative vide order, dated 22-11-1986 and by forfeiting tenancy directed, appellant to hand over vacant possession of house to respondent/landlord. Feeling aggrieved this appeal was filed on 27-12-1986.
3. Mr. Muhammad Iftikhar learned counsel stranuously contended that (i) Appellant was not aware about transfer of property in dispute, in favour of respondent as no notice was received by him, therefore, according to him stand of appellant cannot be construed to be conscious denial of relationship between landlord and tenant. Besides that learned counsel argued that forfeiture of tenancy in the matter was unwarranted.
4. On the other hand Mr. Muhammad Riaz Ahmed, Advocate appearing for respondent vehemently urged, that (i) Notice under section 13-A of Baluchistan Urban Rent Restriction Ordinance was sent to tenant by registered post, as it was properly addressed, therefore, same should be deemed to have been served, (ii) filing of eviction application would also constitute proper notice to respondent (iii) As appellant in spite of proving registered sale-deed through Clerk of Registrar's office, persisted in challenging relationship, therefore, denial by him is contumacious.
' I have carefully considered the contentions raised by learned counsel for parties. Broad basis for the arguments raised on behalf of appellant is that notice intimating transfer of suit property within the perview of section 13-A of the Ordinance was not served upon him. Therefore, even if it is assumed that property was factually transferred in favour of respondent, the relationship of landlord and tenant would not be established. Learned counsel further contended that apparently justifiable circumstances for challenging competency of eviction application existed, therefore, forfeiture of tenancy was highly unwarranted. To supplement his submissions reliance was placed on the following reported decisions: - ' Subhanali alias Sobho v. Mst. Satbai PLD 1964 Kar. 206, Qaisar Zamani v. Rasheeda Begum and others 1985 CLC 596, Amroz Khan v. Arbab Muhammad Ghalib PLD 1980 Pesh. 163, Saleem Bokhari and others v. Mst. Sadozai and others PLD 1986 Quetta 284.
' I am afraid that principle of law enunciated in the aforequoted judgments do not help appellant in the peculiar circumstances of this case. It may be seen that respondent apart from raising objection about non-service of notice has separately and independently denied the relationship.
Evidently Lahore case (1985 CLC 596) mainly deals with significance of notice when change of ownership takes place. Whereas Peshawar case (PLD 1980 Pesh. 163) suggests leniency for tenant on account of apparent confusion because of transfer of property was effected in favour of son whereby Court held that denial by tenant was not conscious. In Quetta case (PLD 1986 Quetta 284) landlord was bound to have contributed in misleading tenant about his exact status. Whereas Karachi case (PLD 1964 Kar. 206) is not at all relevant.
' It is pertinent to note that factum of purchase was specifically alleged and details of registered sale were incorporated in the eviction application. Notice was sent through registered post. P.W.IV Muhammad Riaz Ahmed has produced the notice Ex.P/2 and has deposed that same was despatched on the correct address by registered post. Apparently it should be delivered to addressee in the normal course. This presumption though is rebuttable, yet on the proof that it was correctly addressed the onus would normally shift to the party denying its receipt.
' In this view I am fortified by the observation of Bashir Ahmed v. Mumtaz Khan (PLD 1965 Lah. 126):- "20. If on the facts and circumstances of a case, it is proved that a registered letter was correctly addressed and duly posted, and it bears an endorsement of a postal peon that it had been refused and it cannot be looked at and it is necessary to produce the postal peon to prove the endorsement, does it not mean that the presumption is ignored altogether? What is its advantage then on the presumption? In a case in which a letter is correctly addressed and posted and not received back, a presumption invariably drawn is that it has 'reached' the address which means that it is inferred that it has not been thrown away or delivered to some one else. Where a letter has been correctly addressed and sent by registered post, this presumption (to use the words of the Judicial Committee) applies with still greater force. If the registered cover is not received back, the presumption that it has reached the addressee has greater force. The reason is that greater care is taken by the postal authorities and the peon in delivering it to the addressee. If the notice is sent under an acknowledge receipt, the letter has to be sent back to the sender with the signature, has there to be an explanation in the course of postal business for the usual event of the registered letter and the acknowledgment receipt being sent back? Is this endorsement not made in the common course of postal business? Why should it be necessary, therefore, to call the postal peon to prove the endorsement formally. There is preponderance of authority in favour of drawing presumption and holding that a registered cover had been refused by the addressee, and this presumption should normally be drawn. In the absence of evidence in rebuttal, the fact is proved and no other evidence is necessary to prove it. The addressee may, however, prove with onus lying on him, that it never reached him. If he denies its receipt, or there is evidence in rebuttal, even then the Court may not accept it as being sufficient to rebut the strong presumption, as in the Gresham House Estate Company's case."
' In addition to the above, now it is well-settled that filing of eviction petition also constitutes sufficient notice. In this view I am B supported by the observation in following cases:-
(i) Aziz Begum v. Faiyaz Butt (NLR 1980 Civil Lahore 134): "Despite the receipt of registered notices by the respondents, they usually insisted upon the detail of her right and have not admitted her as their landlady uptil now. In Law Notes 1969 SC 78, the ejectment application was itself regarded a sufficient notice in terms of section 13-A of the Ordinance. However, there is no denying of this fact that the filing of the ejectment application and subsequently after the receipt of aforesaid notices the respondents were fully in know of the fact of transfer of ownership in favour of the appellant. Keeping in view all these facts. It will be against all fairness to allow them to plead the absence of notices under section 13-A of the Ordinance. I, therefore, hold that this contention has no force and the same is hereby repelled as baseless."
(ii) Muhammad Hussain v. Haji Ch. Umar Bakhsh and another PLD 1982 SC 212: "8. Moreover, in view of the fact that the only evidence recorded was that of the landlady Mst.
Shahzadi Begum. We asked the learned counsel for the petitioner as to what proof Mobin Siddiqui (petitioner) would have to offer if the case is remanded. The learned counsel admitted that the rent deed executed by Mst. Shahzadi Begum in respect of the shop in question was indeed in favour of Alam Khan and that there was no rent deed in favour of Mobin Siddiqui. But he said that he could produce the proof of payment of rent to the landlady. When asked to produce the proof in that respect, he produced only one receipt, a copy of which is placed at page 75 of the paper book. It is surprising that during the entire period of tenancy from 6-3-1974 till the date of filing of ejectment application Mobin Siddiqui paid the rent to the landlady only once. It appears to us that even on that occasion he had probably paid the rent on behalf of Aslam Khan."
(iii) Major (Retd.) Muhammad Yousuf v. Meraj-ud-Din and others 1986 SC MR 751: "4. The learned counsel for the respondent has candidly stated that he does not claim the ownership of the property. Nor the ownership thereof by the appellant is denied. The serious dispute however, is on two-fold controversy; whether the appellant was required by law (under section 13-A of the West Pakistan Rent Restriction Ordinance, 1959) to serve a notice on the respondents before seeking eviction on ground of default; and, whether non-service of notice under section 13-A would amount to negation of the relationship of landlord and tenant.
5. On the first question proper evidence leading to presumption was adduced that a notice under section 13-A was sent to the respondents who refused to receive the same. Instead of raising rebuttable proper presumptions under the law regarding delivery of such notice, it has been found that the appellant failed to establish delivery of notice by production of the postman. We would leave this question at that because rent has not been tendered or paid even after the institution of the application which for the present purpose amounts to service of notice. See Syed Azhar Imam v. Mst. Salma Khatoon 1985 SCMR 24 and Muhammad Siddique v. Mst. Sharifan and another Law Notes 1969 SC 78.
6. On the second question also the respondents have no case. It is neither supported by statute nor any principle of law that if a notice under section 13-A of the Ordinance is not served that would amount to absence of relationship of landlord and tenant. The analogy of case-law under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is not attracted here.
Thus, the finding on issue of relationship has to be reversed and we do accordingly.
7. That being so, rent having admittedly not been paid after the institution of the application for eviction which has also been treated as notice under section 13-A the respondents were liable to be evicted. We order accordingly."
' Last mentioned judgment is on all force in each aspect of this case. The above discussion unhesitatingly leads me to the conclusion that notice is deemed to have been served on the respondents. However, in any case at least filing of petition constituted a due notice about change of ownership in favour of petitioner. In spite of that bald denial of relationship by appellant is not understandable. Record undisputedly reveals that copy of registered sale-deed was produced in evidence as Ex.A/2 by Registration Clerk. Said witness was examined on 16-7-1979, he unequivocally deposed that sale of property was in favour of respondent. It is noteworthy that appellant did not challenge the version of Registration Clerk as he was not even cross-examined. But in spite of all this appellant persisted in his misconceived objection thus procrastinating the proceedings by unnecessarily leading defence. His conduct, therefore, clearly suggests that denial of relationship was contumacious motivated with desire to unjustifiably delay the proceedings. In such situation I am inclined to hold that order for forefeiture of tenancy is well-justified. In this behalf reliance may be 'placed on the observation in following decided cases: -
(i) Ghulam Rasool v. Ch. Din Muhammad PLD 1967 Lah. 665: "11. If it may say no with respect, I fully agree with the above statement of law. In the instant case, as pointed out above, the parties were at issue only on a single point, namely, so to the subsistence of the relationship of landlord and tenant between the parties being germane to the validity of the transfer of the shop in favour of the respondent. This issue having been decided, and rightly so, in favour of the respondent nothing remained in the case to be further decided and the Rent Controller was prefectly justified, in my opinion, to order ejectment of the appellant from the shop in dispute.
(ii) Muhammad Siddique v. Naseer Ahmed PLD 1976 Lah. 1078: "The principle of forfeiture of tenancy on account of false and contumacious denial of certain established and admitted facts qua relationship of landlord and tenant, has correctly been applied."
(iii) Mst. Sughran and others v. Ehsanul Haq Bhalli, Additional District Judge, Jhang and another 1982 SCMR 1164: "2. Ch. Ghulam Mujtaba, learned counsel for the petitioner, submitted that the petitioners had attorned to Mst. Hamida Begum, mother of respondent Aziz Ahmed and as such she being the landlord, there could exist no relationship of landlord and tenant between Aziz Ahmed and the petitioners. As it has not been shown that the denial of relationship had been earlier based on such pleas, the point cannot be allowed to be raised now. It was next urged that the forfeiture of the tenancy without first deciding the question of default was not proper. But the petitioners' case had not been that they had been paying rent and indeed such a plea would have been incompatible and contradictory in terms with their plea of denial cf relationship. The forfeiture of the tenancy in the circumstance of the case was a natural result of the finding in the affirmative on the issue of relationship. Lastly, it was urged that there had been no compliance by the appellate Court of the remand order. The matter has been dealt with by the High Court and we see no way to differ from the view taken."
(iv) Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCMR 443: "The finding recorded by them is that he even denied the title of the respondent wholly contumaciously and thus disentitled himself from seeking any equitable relief in the proceedings.
The fact that this finding is borne out from the allegation made by him in the written statement, we are satisfied that the petitioner rightly lost the sympathy of the Court."
' In the light of above-quoted reports impugned judgment is unexcestionable and does not warrant interference.
' Thus, for the foregoing reasons the appeal is dismissed with no order as to costs.