' This First .Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979, (hereinafter called the Ordinance) is directed against the order of learned XIIth Senior Civil Judge/ A .S.J./R.C., Karachi, dated 15-12-1983 whereby she has allowed the ejectment application of the respondent and directed the appellant to hand over the vacant possession of premises in case, to him within 60 days from the date of the order.
2. The facts briefly state are these. The residential premises bearing No.G-5, 4/3, Jamila Street, Karachi, were initially an evacuee property. It was transferred long ago to the respondent. At the time of transfer of the premises, Abdul Majeed, the late husband of the appellant was its tenant.
After the death of Abdul Majeed a tenancy agreement dated 8-7-1976 was executed between appellant and the respondent abovenamed whereby she had agreed to pay the monthly rent of Rs.30 to the respondent. According to the respondent she failed to pay or tender the rent for the period commencing from September 1980 and ending April, 1981 and consequently an ejectment application under section 15 of the Ordinance was filed on 26-4-1981 seeking eviction of the appellant on the ground of default in payment of rent.
3. The appellant filed written statement and stated that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act 1958 was served upon her late husband as required by law. She thus claimed that the application was not maintainable in law. She further averred that the lease agreement referred to above was the outcome of fraud purpetuated upon her. She also claimed that the enhancement of rent from Rs.30 to Rs.40 was unwarranted. She claimed that the rent received by the respondent was much more than what was legally due and payable by her in accordance with law. Additionally she pleaded that the respondent used to collect the rent for months together in lump sum.
4. The learned Rent Controller framed the following issues:- "(1) Whether the opponent has committed default in payment of rent?
(2) What should the order be?"
5. One witness each was produced by the parties who were cross-examined by the respective advocates. The learned Rent Controller, as already stated, has allowed the application and ordered the ejectment of the respondent.
6. I have heard the learned counsel for the parties and perused the relevant record. There is no denying the fact that the respondent failed to pay the rent for the period from September, 1980 to April, 1981 inasmuch as there is no iota of evidence available on record to establish the claim that the rent was being recovered by the respondent in lump sum for months together. However, what I find is that despite a specific plea having been taken in the written statement which was subsequently adhered to during cross-examination of the respondent's witness, to the effect of non-service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the learned Rent Controller did not consider it worthwhile to deal with that aspect of the case and record a finding in that behalf. He has stated in his impugned order that the attorney of the respondent appeared as a witness on his behalf and disposed that the respondent had purchased the case premises from the Settlement Department and after transfer of the property in his name, the then recorded tenant, Abdul Majeed had served him with a notice as required under the law. The mere recording of the statement in the form stated above was not sufficient. The learned Rent Controller was legally obliged to determine whether the statutory notice in question was served and, if not, with what consequences.
' Mr. S.S. Hamid submitted that after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and in the presence of an agreement of tenancy between the parties the non-service of the notice under section 30 was no more necessary. Be that as it may, the learned Rent Controller should have in all fairness given due consideration to the legal aspects of this case.
' Having reached this conclusion I think it would serve the ends of justice if I set aside the impugned order and remit the case to the Rent Controller for fresh order in accordance with law. . The parties shall, however, bear their own costs.