P L D 1968 Karachi 182 (PLP)

4. The Rent Controller decided all the issues against the respondent and dismissed her application. The respondent, therefore, preferred an appeal against it, which was accepted by an Additional District Judge, as mentioned above.

5. Now, the appellant has come in Second Appeal to this Court. Mr. Suleman U. Panja has contended that there was no default in the payment of rent, and that the respondent did not require the premises for her own bona fide use, and lastly, that the rate of rent was Rs. 30‑11‑0, and not Rs. 90 p. m.

6. The most important question in these proceedings is whether or not the appellant has committed default. Mr. Suleman Panja has argued that when notices of demand were sent by the respondent, the unamended Karachi Rent Restriction Act, 1953, was in force, according to which default in payment of rent was to be determined by considering the readiness and willingness of the tenant to pay rent, and it was not necessary that the rent should be transmitted by money order or deposited with the Rent Controller. From this point of view, counsel argued, there was no default when the notices were sent and replied to. Secondly, counsel contended, that at the time application for ejectment was decided in April 1964 the West Pakistan Urban Rent Restriction Ordinance, 1959 had been extended to Karachi, according to which the appellant was bound only to pay rent which was legally due, and not otherwise. The amount legally due was the amount which was assessed. When the Rent Controller decided tote application of the respondent, in April 1964, the Excise and Taxation Department had assessed the rent, vids Exh. D. 8, on the 29th of June 1963 at Rs. 31 per month. In terms of section 30 of the Displaced Persons ‑(Compensation and Rehabilitation) Act, 1958, this was the rate at which the rent was payable as assessed by the local authority: Thirdly, Mr. Panja argued that demand was made by the respondent at the rate of Rs. 90 per month; whereas as explained above the correct rent was Re. 31 per month. The demand being excessive, nothing was legally due in terms of the law enunciated in Muhammad Sabir v. Abdul Malik (P L D 1967 Pesh. 96) and State v. Fazil‑i‑Khaliq (P L D 1067 Pesh.107). Fourthly, counsel argued that default could take place if, in terms of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, there was no dispute about the rate of rent; since there was a dispute in that respect the procedure prescribed in subsection (6) of section 13 of that Ordinance, was to be followed and so long as the Rent Controller did not tentatively or finally fix the rent, default could not be said to have been committed. Fifthly, according to counsel, the landlady was herself responsible for creating the situation which resulted in the default, because although the property was transferred to her on the 18th of April 1961, yet for one year she made no demand for rent, with the result that a big amount had accumulated, and became due when she sent her first notice on the 16h of March 1962. In the sixth place, according to counsel, the respondent had denied the tenancy rights of the appellant by saying in her second notice, Exh. P. 6, as follows:‑ "

6. That you are further called upon to give documentary proof that you had been declared on or before the 20th day of December 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August 1947, within three days of the receipt of this notice failing which my client will conclude that you have none, and therefore, you will not be' entitled to any protection provided under law for the tenants of the category in question." 7. 'The first contention of counsel has two aspects : one is default in terms of the Rent Restriction Acts, and the other in terms of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In so far as the legal liability of the appellant for ejectment is concerned, it is governed by Rent Restriction Acts, but in so far as the protection of six years of tenancy against ejectment is concerned, it is governed by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

8. Default entailing the liability of ejectment, was governed by the unamended Karachi Rent Restriction Act, 1953 at the time that the notices were exchanged, and by the amended Karachi Rent Restriction Act, 1953, when the application for ejectment was made, and ultimately by the West Pakistan Urban Rent Restriction Ordinance, :959 when the application for ejectment was rejected by the Rent Controller for purposes of protection of the tenant against ejectment under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 rent was payable at the rate of the latest assessment by the Karachi Municipal Corporation or by a local authority. Counsel for the appellant said that the latest assessment made on the 1st of July 1960' vide Exh. P. 3 was immaterial because it was reduced from Rs. 90 per month to Rs. 31 per month by the Excise and Taxation Department on the 29th of June 1963, vide Exh. D.

8. The Rent Controller according to counsel, should have taken into consideration the latest assessment 'in force at the time of his order in 1964 and to have held that the demand made by the respondent was unwarranted. The fallacy of this argument is that, the latest assessment is required to be either of a municipality or of a local body. The Excise and Taxation Department comes into neither category. The offices of the Department which have been working in Karachi are a part of a Department of the Provincial Government. In this connection, the definition of "local authority" given in subsection (35) of section 2 of the West Pakistan General Clauses Act, 1956 is in order. The conclusion therefore, is that "default" by the appellant in paying rent at the rate of Rs. 90 per month is to be governed in terms of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the latest assessment of the Karachi Municipal Corporation, and not by the assessment ‑of the Excise and Taxation Department. The consequence of this finding is that, for purposes of protection, the appellant cannot take the plea of readiness and willingness either. The demand made by the respondent at the late of Rs. 90 per month was correct, and continues to be so in terms of section 3'J of the said Act, and default of the appellant in not paying the rent at that rate has nullified protection on the 'grounds of his six years' occupation of the premises.`

9. In so far as default for purposes of ejectment is concerned, it was governed at different times by different laws. At the time of exchange of notices the situation was governed by the unamended Karachi Rent Restriction, Act, 1953, which meant that the readiness and willingness of the tenant to pay rent was the criterion for determining default. At the time the application for ejectment was instituted the situation came tinder the Karachi Rent Restriction Act, 1953, as amended in 1962, by virtue of which the tenant had either to pay rent to the landlord or deposit it with the Rent Controller; or to send it by money order. At the time the application was decided by the Rent Controller, the situation was governed by the West Pakistan Urban Rent Restriction Ordinance, 1959, which made no difference in this respect. In these circumstances, the contention of counsel for the appellant is that there was no default when the notices were exchanged because the appellant had proved his readiness and willingness to pay the rent by sending two money, orders. But the money orders were despatched in September and October 1962, at the rate of Rs. 30 per month, whereas the latest assessment of the Municipal Corporation at that time was Rs. 90 per month; therefore, at the time at which the money orders were sent, they did no amount to proof of the readiness and willingness of the tenant to pay the rent due. At the time of the institution of the ejectment application, as well as at the time of its decision, the law contained in the amended Karachi Rent Restriction Act, 1958, and‑ in the West Pakistan Urban Rent Restriction Ordinance, 1959 was respectively applicable and was, in respect of default, the same. Under this law the tenant could not rely solely on the plea of readiness and willingness to pay. He had actually to pay rent to the landlord, or transmit it to him by money order, or deposit it with the Rent Controller. Counsel for the appellant says that in September 1963, section 30 of the Displaced Persons. (Compensation and Rehabilitation) Act 1958 had been amended, and the following provision appeared in it:‑

"it shall be lawful for the transferee to charge a .rent on the basis of the latest assessment carried out by the municipality or local authority, as the case may be, for other properties in the locality generally;" Counsel has, therefore, contended that the latest assessment for other properties in the locality generally and not for the property in dispute determined the rate at which rent was to be paid. If this contention of counsel is intended to emphasise that the rate of rent fixed by the Municipal Corporation at Rs. 90 per month was not relevant, then it also means that the rate of rent fixed by the Excise and Taxation Department at Rs. 30 per month was not relevant. No attempt was made by the appellant to put on record the rate of rent for other properties in the locality generally payable according to the latest assessment nor is it possible to conclude that the appellant was not liable to pay any rent at all. At the time at which the application was tried and the First Appeal was heard, the question was whether the latest assessment made by the Municipal Corporation or the Excise and Taxation Department was relevant. The contention now raised by counsel that it should be the assessment for other properties in the locality generally, is an entirely new one, and raises a mixed question of law and fact. It cannot, therefore, be taken into consideration.

10. The conclusion of the above discussion is that the rate of rent proved on the record applicable to this case is Rs. 90 per month, which was the assessment of the Municipal Corporation in 1960. Counsel 'for the appellant claimed that, according to some rule, it is the duty of the Municipal Corporation to adopt the rate of rent assessed by the Excise and Taxation Department. . If that is so, then in so far as the record of this case is concerned, the Municipal Corporation is not shown to have followed that rule. The only assessment of the Municipal Corporation prevailing at the tune is vide Exh. P. 3, in consequence of which the appellant has committed default for purposes of ejectment also.

11. Before bringing to an end this discussion I may refer to observations in the case of Muhammad Sabir v. Abdul Malik (P L D 1967 Pesh. 96) and that of Sardar Begum v. Sarfaraz Khan (P L.D 1967 Posh. 177). Counsel for the respondent had in reply cited the case of Faqir Muhammad v. Muhammad Yasin (P L D 1964 Lah. 686). All of those judgments are by learned Single Judges. I am unable to see how under the West Pakistan Urban Rent Restriction Ordinance, 1959, it can reasonably be concluded that merely because excessive rent was claimed by the landlord, the tenant becomes relieved of the liability to pay any; rent. There are provisions in the Ordinance for raking payment by money order and by depositing rent with the Rent Controller. The purpose of these provisions is to make the tenant independent of the willingness or otherwise of the landlord to accept rent. In the event of a dispute and unwillingness on the part of the landlord to accept rent; the tenant should deposit the rent with the Rent Controller, or send it by money order at the rate acceptable to him. Subsection (6) of section 13 of the Ordinance is meant to resolve disputes in the first instance temporarily, and in the end, finally; but in no way relieves they tenant of his liability to pay rent.

12. The above discussion incidentally decides the issue about the rate of rent.

13. As to the second ground of ejectment, viz., bona fide personal use of the respondent, counsel for the appellant has critised it by advancing the following three arguments: (i) that the respondent had not mentioned this ground in her first notice, but mentioned it as an after thought in the second notice; (ii) that in the application for ejectment the respondent stated that she required the premises for herself, but her attorney (P. W. 1) stated in Court that the premises were needed for the marriage of a son of the respondent; (iii) that the respondent has not supported the application by personally coming into the witness box, and the evidence of her attorney should be taken to be hearsay.

14. In so far as the first contention is concerned, counsel for the respondent has rightly pointed out that at the time of filing the first notice, the, occupation of the appellant could be taken by the respondent to have been protected by his six years tenancy by virtue of the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Since that notice, it transpired that the appellant had forfeited the protection; therefore, the ground of personal need was mentioned in the 'second notice. The second contention of counsel for the appellant is based on the definition of a certain dictionary of the word "child" as an "infant" or a "person under puberty." The word "child" occurs in subsection (3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. It is obviously not restricted either to infants or minors, but is intended to convey the relationship of parents with their off‑spring: See Adam Ali Hussain v. Rubab Bai (P L D 1967 Kar. 437).

15. The third contention of counsel that the statement of the respondent's attorney is to be rejected as hearsay evidence is palpably wrong.

16. At this stage, counsel for the appellant reminds me that he had contended that the Rent Controller had the discretion to grant ejectment, or refuse it, irrespective of proof of default or the need of the landlord. I have had occasion for examining this point of view in my judgment in the case of Ghulam Husain v. Muhammad Rafique (P L D 1965 Kar. 468), and to my mind, the contention is not sound.

17. In conclusion, the appeal is dismissed with costs. A.H. Appeal dismissed.