Learned counsel has in support of this second appeal, filed by a tenant under section 15(4) of the We,-,t Pakistan Urban Rent Restriction Ordinance, 1959, contended : firstly, that in law service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1959 had not been proved. He has cited Gulzar Begum v. Mst. Sairah Bibi (1972 SCMR 261) to support his contention; secondly, that the application for eviction was filed against different person and not against the appellant. The argument is based on the so-called mistaken identity on account of an alleged mistake in writing the name of the appellant and his father ; and thirdly, that the landlord having died during the pendency of application before the Rent Controller, only his widow was impleaded as a party. His other heirs including nephews, despite their application, were not impleaded.
2. It is true that the onus with regard to service of notice, if the address is correct, will ordinarily shift, on the addressee making a statement on oath denying the receipt of registered notice. This would, in law, displace two legal presumptions against him ; one under section 1 t4 of the Evidence Act, and the other under section 3 of the Post Office Act, 1898. But it will depend upon the circumstances of each case whether the denial in the witness-box by the addressee is enough to rebut the presumptions and thus shift the onus. In this case two circumstances cannot be ignored when considering the question whether the appellant did not make a false denial under oath : (i) both the learned Rent Controller as also the learned lower appellate Court carefully examined and compared his admitted signatures and the disputed signatures on the acknowledgement due receipt and came to concurrent finding that he had signed the acknowledgement due receipt relating to the notice. The despatch of the notice through the said acknowledgement due receipt not only stands proved through the presumptions but also through the statement made by the learned Advocate who sent the notice. The finding of fact that the appellant had signed the acknowledgement due receipt is unexceptionable, and that being so, the appellant even in witness-box failed to explain as to why, if he had not received the notice, he signed the acknowledgment due slip. He kept on denying everything. Obviously, he made a false statement with regard to the denial of the signatures as also the receipt of notice and such a denial would not displace the presumptions nor would shift the onus ; and (it) it is pertinent to note that subject to the discussion relating to identity the appellant had even sent a reply to an earlier notice sent to him by the landlord. This was so stated on oath by the landlord when appearing as a witness against the appellant. (The learned counsel read the statement from his brief In view of all these circumstances the concurrent findings of fact that the appellant did receive the notice are unexceptionable and are accordingly upheld.
3. Both the learned Rent Controller as also the learned lower appellate Court carefully analysed and discussed the evidence relating to the identity of the appellant (respondent in the eviction application). Although a technical mistake was committed with regard to the part of his name as also a part of his father's name but it is not denied that the address and other particulars given in the proceedings are correct. After comparing with the particulars given in the previous proceedings and noting the conduct of the appellant himself the learned lower appellate Court came to a correct decision that an undue advantage was sought to be taken on the basis of a mere technicality. Concurrent findings on the question of identity of the appellant also, are unexceptionable.
4. It is true that only the widow of the original landlord was impleaded as a party after his death during the pendency of the proceedings before the Rent Controller ; but it cannot be said that the question of existence or otherwise of the other heirs of the deceased landlord was not noticed by the learned Rent Controller. In fact, according to learned counsel, the other heirs made an application for being impleaded but the learned Rent Controller dismissed the same with a finding that it was too belated to be accepted. The other alleged heirs have not challenged the order of the Rent Controller nor they were impleaded by the appellant himself when filing the appeal before the learned District Judge nor they have been impleaded in this appeal. Not even a formal separate application was moved by the appellant at any of these stages to implead the other alleged legal representatives. When pointed out that even if Civil Procedure Code would have been made applicable to the proceedings before the Rent Controller, this so-called defect would not have rendered the proceedings void ab initio because Rub-rule (2) of rule 3 of Order XXII, C. P. C.
Provides that in such like situations the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place ; learned counsel has replied that this provision would be attracted only if within the time allowed no application is made or intimation given with regard to the existence of the legal representatives.
And because, according to him, in this case not only an intimation was given but also an application was made by the other legal representatives for being impleaded as parties sub-rule
(2) of rule 3 would not be attracted. Technically speaking the answer by the learned counsel might be correct but the Civil Procedure Code as such does not apply to the proceedings before the Rent Controller. The principle underlying some of its provisions, however, can be applied therein. The principle underlying sub-rule (2) shorn of its technicality, can undoubtedly be applied in the proceedings before the Rent Controller. That being so, when admittedly one of the legal representatives of the landlord, namely, his widow, was actively pursuing the proceedings, it was not a sine qua non for pronouncing a valid executable order in the proceedings, to discover and implead all other legal representatives. It is also an accepted proposition of law that one of several owners and/or landlords can make an application for eviction. Here it cannot be ignored that the appellant had wrongly made denial of the existence of relationship of landlord and tenant. Not only this, he had also made a wrong denial with regard to the receipt of the notice and further made a contumacious attempt to deny even his correct identity. In view of all these circumstances he has no locus standi to object to, the other legal representatives of the landlord, not having been impleaded as parties in the proceedings.
5. None of the arguments raised by the learned counsel has any force. This appeal accordingly is dismissed in limine.