' The dispute relates to house bearing No, 1619-A, Kucha Lal Missar, Satthan, inside Bhati Gate, Lahore. It was permanently transferred to the respondent-landlord on 10-1-1970 under Settlement Scheme No, VIII. He thereafter issued notice to the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on 16-1-1970 which according to the respondent was served upon Umer Din, appellant No, 1, on 27-1-1970. According to the report made by the Process-Server, appellant No, 1 intentionally avoided to come before him and as such he refused to receive the process. The postman has also been examined as P. W.
1. He has stated that he knew appellant No, 1, Umer Din, for the last about sixteen years and since he refused to receive the process, therefore, he reported accordingly. He has further stated that since he intentionally avoided to come before him, though as a matter of fact he was present in his house, therefore, he reported about the refusal. The envelope as well ac the copy of the notice, both, have been exhibited as P. 1 and P. 2, respectively. Since the appellants in spite of the notice having been served upon them did not pay the rent due from them, therefore, ejectment application was filed on 26-5-1970.
' The learned Controller as well as the learned lower Appellate Court, both, have decided the preliminary as well as the issues on merits against the appellants. Hence this second appeal.
2. The appellants, who received notice in regard to the ejectment application on 15-10-1970, raised preliminary objection in the written statement that since no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been issued to them, therefore, the ejectment application was not competent. They further averred that each one of the appellants was in separate and independent portion of the house and as such required separate notice, and in the absence thereof the petition being incompetent was liable to be dismissed.
3. So far as the service of notice is concerned, both the Courts below decided the relevant issue against the appellants. They further held that since appellants Nos. 2 to 4 were the real sons of appellant No, 1 and were putting up in the same house, therefore, Umer Din, appellant No, 1, being head of the family, having been served upon, service under the law was complete. On merits it was held that since in spite of service of notice rent due was not paid, therefore, the appellants were liable to be ejected.
4. The learned counsel for the appellants, while referring to the report of the postman, Exb. P. 1, has argued that in the absence of clear refusal by appellant No, 1 to receive the notice he cannot be deemed to have been served upon ; according to the report he avoided to receive the notice and as such he cannot be deemed to have refused service. It has also been submitted that oven if it is accepted for argument's sake that service was avoided on 27-1-1970, the ejectment petition should have been filed after the expiry of five months, after having accounted for the period of three months as provided under section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958 and period of two months as provided under section 13 (2) (1) of the Urban Rent Restriction Ordinance. According to the learned counsel, the aforesaid period of three months should precede the expiry of period of two months as provided by section 13 of the Ordinance. He has relied upon an unreported judgment passed in limine on 17-11-65 in S. A.
0. 15 of 1965 holding that period of sixty days as provided by section 13 of the West Pakistan Urban Rent Restriction Ordinance should be added to the period of ninety days as provided by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act and a tenant would be within his right to pay the arrears within the period of five months.
4-A. I am afraid, none of the contentions raised above has any substance. The report Exh. P. 1, as referred to above, made by the Postman has to be read in conjunction with his statement made before the Controller on 15-9-1971 while appearing as P. W.
1. The report says that appellant No, 1, Umer Din has deliberately avoided service and by his conduct he has refused to receive the notice. He has clarified this position in his statement by saying that appellant No, 1 was in fact in his house on all the occasions when he wont to him for effecting service upon him and since he refused to come out to receive the notice, therefore, he reported about his refusal. If we read the report alongwith his statement then it becomes clear that appellant No, 1 refused to receive the process and that is why the report about his refusal was made. The report does not say that the whereabouts of the addressee were not known or otherwise he was not found in his house. It rather, on the contrary, discloses that in spite of being present in the house he refused to come out to receive the process. As such, report about his refusal was correctly made by the postman.
' It may be mentioned here that it is not a case of evasion of service as contemplated by Order V, rule 20, C. P. C., in which case substituted service should be effected upon a person who avoids service. Since appellant No, 1 refused to acknowledge the process, therefore, report about his such refusal was rightly made by P. W, 1.
5. Even if it is accepted for argument's sake that appellant No, 1 was not served upon on the aforesaid date i,e,, 27-1-1970, the ejectment petition cannot be thrown out being incompetent. It was filed on 26-5-70 and notice was issued to the appellants for 25-7-1970 for which date they were not served upon. The record shows that they were ultimately served upon for 15-10-1970 and filed their written statement on 14-11-1970. The issue with regard to service of notice was framed on 5-12-1970 which was finally disposed of by the learned Controller by his order dated 21-12-1970. The appeal against the said order was also dismissed by the learned Additional District Judge Lahore on 2-4-1974. The record does not show anywhere that after the appellants received the notice in regard to the ejectment application they paid the rent due from them within a period of three months or even five months. They were directed under section 13 (6) of the Urban Rent Restriction Ordinance to pay the arrears after the decision of the preliminary objection in appeal by the learned lower Appellate Court in February, 1974. According to law, the ejectment application filed by the respondent alleging that the appellants had not paid the rent due from then would be deemed to be a notice served upon them on 15-10-1970. Since they failed to pay the rent due from them within the stipulated period as provided by law, therefore, their plea that the ejectment application having been filed before the expiry of five months being premature is liable to be dismissed pales into insignificance.
6. The further argument with regard to the invalidity of the notice on the appellants on the ground that they being in occupation of the different portions of the house should have been issued separate notices has also no force. It is admitted on record that Umer Din, appellant No, 1, is father of the remaining appellants. It was he alone who attorney in favour of the respondent and as such was in occupation of the house in his own right. The other appellants being his sons cannot be deemed to be in possession of the property independently. Appellant No, 1 being head of the family was rightly issued one notice and the service upon him would be deemed service upon the other members of his family.
7. Section 30 (3) of the Displaced Persons (Compensation and Rehabilitation) Act provides that if an occupant of a house has not paid or tendered the amount of rent or arrears due from him within three months from the date of receipt of notice of demand sent to him by the transferee per Registered Post Acknowledgment Due, then such occupant would be liable to be ejected from the property. Similarly, section 13 (2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 provides that if a tenant has not paid or tendered rent due for a period of sixty days in the absence of any agreement in writing, then ejectment proceedings can be filed against him.
' It has been contended that the property in dispute initially being evacuee and having been transferred out of the Compensation Pool, notice under section 30 ibid was obliged to be issued and after the expiry of the period of three months, as provided by said section 30, another period of two months as provided by section 13 (2) of the Rent Restriction Ordinance should expire before the ejectment proceedings can be initiated.
' This argument has no force mainly on the ground that the Displaced Persons (Compensation and Rehabilitation) Act being special Statute regulating the relationship of landlord and tenant with regard to the property transferred thereunder would prevail as against the general law as embodied in West Pakistan Urban Rent Restriction Ordinance, 1959, which provides the procedure as well as the forum in case the conditions as laid down in section 30 of the Act are contravened by occupants of property whom notice under section 30 is issued.
8. It has been held in Muhammad Amin v. Jamshed Ali (1) that section 30 of the Displaced Persons (Compensation and Rehabilitation) Act aims at affording protection to persons in possession and they can be ejected only in specified limited circumstances. The protection so &lorded can be real and substantial only if to such persons section 29 of the Act is not applicable.
' In that case question of ejectment of an occupant of an evacuee property by invoking section 29 of the Displaced Persons (Compensation and Rehabilitation) Act was in question. It was held that the aforesaid provision was not available for ejecting an occupant of a property transferred to a person under the said Act. It was further held that section 29 had no application and the only means available to the transferee for ejecting occupant/tenant was by invoking the jurisdiction of the Rent Controller under the ordinary law applicable to the relationship between a landlord and tenant provided of course that the conditions as laid down in section 30 of the Act were satisfied.
' This view gains strength from the observations as made in Ishrat Hussain an others v. Sutedor alias Suba (2) to the effect that since no rent had been paid within a period of three months of the service of notice of demand as required by section 30 of the 1958 Act, therefore, it was not possible to appreciate what further inquiry was needed in this behalf. The matter in that case had been remanded to the Controller for further inquiry by the District Judge in order to find out as to whether default had been committed by the tenant or not. It was found that since it was admitted by the tenant himself that he had not paid rent within the statutory period of three months after service of notice on him under section 30 of the Act, therefore, no such inquiry was required. The observation as made by their Lordships of the Supreme Court shows that if default in the payment of rent has been committed and rent is not paid within three months of the notice under section 30 of the Act then ejectment proceedings can be started by the transferee of the property.
10. Similar view has been taken in Muhammad Akram v. Dr. Ghafoor Muhammad (3). The question with regard to validity or otherwise of the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was in issue in that case. It was held that the statutory relationship of landlord and tenant created by this section was to be (1) PLD 1967 Lah. 856 (2)1975 SC MR 19 (3) 1974 SCMR 40 regulated by the ordinary law only after the expiry of period of six years or on the occurrence of certain conditions specified in the section itself, one of them being default in the payment of rent by the statutory tenant. In that case, the tenant did not pay rent within the period of three months after the issue of notice under section 30 of the Act on the ground that the rent demanded was excessive. He, on the contrary, filed an application before the learned Controller under section 4 of the Ordinance for fixation of fair rent. It was held that such application was not maintainable under the law as against the specific provisions embodied in section 30 itself.
10. The same view has been taken in Malik Abdul Adz v. West Pakistan Publishing Company (1). It has been held that in every case when a landlord, who is a transferee under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, invokes jurisdiction of the Rent Controller to eject a statutory tenant, he must prove that the provisions of subsection (3) of section 30 of the Act have been contravened. It has been further held that such tenant cannot be ejected like the ordinary tenant by a simple default on his part in the payment of rent to warrant an action of ejectment against him. It is necessary to give him an opportunity to remedy the default which he would be within his rights to do within three months after the receipt of the registered notice. If the landlord does not give the required notice, then there being no contravention of section 30 (3) of the Act he cannot invoke the jurisdiction of the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959.
11. The above discussion would show that the provisions of section 30 of the Displaced (Compensation and Rehabilitation) Act, 1958 being specific in nature would prevail as against the general provisions contained in the West Pakistan Urban Rent Restriction Ordinance, 1959 regulating the relationship of landlord and tenant. If the subject matter of an ejectment application is a property which has been transferred out of the Compensation Pool then the provision as contained in section 30 Mid would be applicable D and in the case of its non-compliance by the statutory tenant necessary order may be passed by the Controller. Section 13 (2) of the Rent Restriction Ordinance would not be applicable to such property as against the specific conditions contained in section 30 of the Act. The contention of the learned counsel for the appellants is, therefore, hereby repelled.
12. In view of the discussion made above, there is no force in this appeal which is hereby dismissed with costs.
(1) PLD 1965 Lah. 82