2006 PLP 1515 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioners/defendants impugn the concurrent decrees of the learned Trial Court, dated 30-11-2004 and the learned Appellate Court, dated 26-5-2005, whereby a suit filed by Aziz Akhtar respondent/plaintiff for recovery of Rs.57,500 as arrears of rent, has been decreed.

2. The petitioners were tenants of the respondent. The respondent filed an ejectment petition against them, which was allowed by the Rent Controller vide order, dated 2-2-1984. In the rent matter, issue No.1 was framed in the following terms:-- "(1) What is the actual rate of rent? O.P. Parties."

3. The case of the respondent was that rent was Rs.150 per month, while the petitioners contended that the property was evacuee property and the rent was only Rs.6 per month. The learned Rent Controller, however, after examining the evidence, held that the rate of rent was Rs.150 per month. The ejectment matter was agitated by the petitioners right upto the Honourable Supreme Court, without success. They were finally ejected in execution proceedings in July, 1997.

4. Thereafter, the respondent filed his recovery suit out of which the present petition has arisen. The learned Courts below have awarded arrears of rent to the respondent at the rate of Rs.350 per month. Learned counsel for the petitioner states that this is contrary to the findings recorded in issue No. 1 in the ejectment proceedings. He further states that throughout the ejectment proceedings and even in the plaint tiled in the present case, the respondent/plaintiff had claimed Rs.150 as monthly rent. Even when the respondent appeared as P. W .1 for the first time, he maintained that the amount of rent was Rs.150 per month.

5. Subsequently, however, he filed an amended plaint claiming that Rs.150 was rent payable by the legal heirs of Fateh Muhammad, while the legal heirs of Roshan Din were liable to pay Rs.200 per month for the portion occupied by there. Learned counsel contends that this is an afterthought and that respondent/plaintiff could not have been granted a decree for the additional sum of Rs. 200 per month claimed by him, considering his testimony in the ejectment matter as also his original plaint and testimony in the learned Trial Court.

6. Learned counsel for the respondent was unable to controvert the submissions, noted above. He merely referred to the contents of the ejectment petition wherein two separate sums of Rs.150 and Rs.200 were claimed against the legal heirs of Fateh Muhammad and Roshan Din, respectively. The contents of the ejectment petition, however, have little relevance because the actual rate of rent was determined by the learned Rent Controller while deciding issue No.1, reproduced above. The matter was, thus, conclusively determined between the parties on the basis of evidence. Moreover, even in the plaint, originally filed by the respondent, and the testimony of the respondent/plaintiff, when he first appeared as a witness, it is clear that the rent was Rs.150 per month and not Rs.350 as claimed by the respondent.

7. Unfortunately, the learned Courts below have disregarded the above evidence while decreeing the suit of the respondent for Rs.57,

500. The learned Appellate Court has, however, allowed adjustment of Rs.1900, which was proved to have been paid by the petitioners as rent. In view of the facts established on record, as discussed above, the impugned decree is not sustainable. It is modified and, as a result, the respondent/plaintiff is held to be entitled to a decree of Rs.21,500 only. This petition is allowed to this extent. H.B.T./M-351/L????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.