1982 PLP 828 (CLC)

5. Thereafter, on 12‑3‑1977, the Controller passed the following order for deposit of arrears of rent and future rent : "Parties advocate present and filed Rent account Exhs. 55 and

57. Both parties agreed the rate of rent Rs.3 per month fixed by Custodian. The applicant claimed Rs.3 from 21‑11‑1959 to 4‑2‑1975 and Rs.17.50 per month from 5‑2‑1975 to 5‑2‑1977 for 24 months. The opponent has stated that rent is due from May; 1972 up to February, 1977 at the rate of Rs.1.50 p.m. as applicant can claim rent of for 3 years prior to filing of rent application Keeping in view all facts the rent due is from May, 1972 to 4 2‑1975 at the rate of Rs.1.50 per month as half portion in his possession of opponent. The opponent shall deposit arrears of rent from May, 1972 to 4‑2‑1975 at the rate of Rs.1.50 p.m. total 33 months and 4 days and total Rs.49.70. There is no dispute over the amount. I also fix tentative rent of disputed premises from 5‑2‑1975 till decision of rent application at the rate of Rs.15 per month in view of latest assessment and notice Exh. 26 placed on the record by applicant. The opponent shall pay arrear of rent at the rate of Rs.15 p.m. from 5‑2‑1975 to 31‑3‑1977 ‑for 25 months and 24 days total Rs.382. The opponent is directed to pay arrear of rent in Court Rs.49.70 plus Rs.382 total Rs.431.'10 on or before 11‑4‑1977. The opponent is also directed to deposit monthly rent ire the Court at the rate of Rs.15 p.m. starting from the month of April, 1977 on or ‑before 15 of every month."

6. On failure of the appellant to comply with the said order the Controller by. the order dated 23‑1‑1978 struck off the defence of the appellant under section 13(6) of the Ordinance and directed him to deliver, possession of the house within four months from the date of the order.

7. Aggrieved by the aforesaid order the appellant went up in first appeal before the learned District Judge who by the order dated 11‑1‑1979, dismissed the same, which is now impugned in this second appeal before me.

8. I have heard Mr. Ahmed Yousuf Ali Rizvi and Mr. M. H. Burney Advocate for the appellant and Mr. Ismail Munshi Advocate for the respondents.

9. The learned counsel for the appellant has raised before me the following contentions (1) That the finding of the Controller that the entire house was transfer red to the respondent is erroneous. (2) That notice (Exh. 20) whereby the appellant made demand was illegal inasmuch as by it the appellant demanded the payment of rent at Rs.20 per month while the rent of the entire house which the appellant was paying to the Custodian Department was only Rs.3. (3) The Controller could not order the deposit of rent on the basis of latest assessment without prior notice and notice (Exh. 20) dated 5‑2‑1975 was not such a notice "

10. So far as first ground is concerned it relates to a finding of fact and since the Controller and the learned lower Appellate Court, both, have found as a matter of fact that the whole house was transferred to the respondents, the same is not open to review in this second appeal. Mere erroneous finding is not enough. Further, the same is based on the evidence of Muhammad Jamil, Clerk of the Settlement Office who stated that the whole house was transferred to the respondents. It was however, pointed out by the learned counsel for the appellant that in the N. C. H. form (Exh. 33) the respondent has not shown any part of the house in occupation of the appellant and be therefore, argued that the respondents should be considered to have applied for the portion of the house that was in his occupation and not the whole house and accordingly, he further argued, that only that portion of the house that was in his physical possession or occupation was transferred to him. It is true that in the form the respondent has not mentioned that the appellant is in possession part of the house but he has mentioned the rent thereof as Rs.3 per month, which was the rent of the whole house at the relevant time even as claimed by the appellant. Therefore, it is clear that the respondent had applied for the transfer of whole house. Further, the whole house has only one number given to it by the Custodian and it was transferred by that number and if there has been any omission or mis-declaration in N. C. H. Form that would not affect the title of the respondent to the house. It was then submitted that the respondent had applied for writing city survey number in the P. T. D. for the same mentioned only Custodian number but the Deputy Settlement Commissioner had refused to do so holding that to allow the whole city survey number in the permanent transfer deed, would amount to treating the house in possession of Kaley Khan as one unit, which could not be done then in view of the ruling on the Supreme Court in S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others (P L D 1971 S C 669) which lays down that after the issuance of permanent transfer deed, the! Court was not competent to deal with the property except in case of fraud or misrepresentation. In my view this order also does not affect the title of the appellant to the house or his right to recover rent for firstly, the house was always treated by the Custodian as one unit as it was given only one number and it was also transferred by one number. In my view refusal to mention in the P. T. D. the city survey number could not make any difference. Further, what the order of the Deputy Settlement Commissioner emphasises is that the Settlement Authorities had become functus officio. Moreover, no action pursuant to the same was taken all these years.

11. I may also mention that I asked the learned counsel for the appellant whether subsequent to the transfer of the house to the respondent, the appellant paid any rent to the Custodian or the Settlement Department or those departments claimed from him any rent for the portion occupied by him and his reply was in the negative. I further asked from the learned counsel, if any steps whatsoever were taken by the department to sell or transfer the portion of the house occupied by the appellant subsequent to the transfer of the house, but his reply was again in the negative.

12. Now, taking up the second ground that the demand for payment of excess rent makes the notice illegal I may say that this is also without force for demanding of rent in excess of that which was being paid to the Custodian would not make the notice illegal as held by Z. A. Channa, J. in Hafiz, Mahammad Hanif v. Niazuddin (P L D 1976 Kar.1213) and by Zafar Hussain Mirza, J. In Tahir Ali v. Mst. Masoodi Begum and 4 others (1980 C L C 1332). Even if no rent was mentioned and only demand for payment of rent was made by the notice that would have been sufficient compliance of the requirement of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as held by the Supreme Court in Ghulam Hussain alias Zair v. Ch. Muhammad Afzal Etc. (1978 S C M R 269). Even otherwise demand of payment of rent in excess of that which a tenant is liable to pay under the law would not absolve the tenant from paying or depositing any rent legally due from him see Tahir A. Khalrulla v. Mst. Zareefun Nissa (P L D 1968 Kar. 182). Therefore, this ground also fails.

13. As regards third ground I may first refer to the statement of account filed by the respondent before the Controller wherein he claimed rent dues as follows : "(1) Rent .at the rate of Rs 3 p.m. as fixed by the Custodian from the date of P. T. O. dated 21‑11‑1959 to 4‑2‑1972 date of notice Le. 183 months. Rs.549 (2) Rent from 5‑2‑1975 to 5‑2‑1977 as fixed by Taxation Department after notice Exh. 26 dated 4‑2‑1975 at the rate of Rs.35 per month charged for half the premises in occupation of the opponent i.e. for 24 months. Rs.420 Total Rent Due Rs.969"

14. It would be seen from the above statement that the respondents had claimed rent at the enhanced rate fixed by Excise and Taxation Department from 2‑5‑1975 to 2‑5‑1977, and 2‑5‑1977 is the date of the notice (Exh. 20) whereby he demanded rent at the rate of Rs.20 per month but the Controller fixed the rate of tentative rent at Rs.15 per month which is lower than that fixed by the Excise and Taxation Department. It was however, argued that there was no evidence that the Excise and Taxation Department has assessed rent of the entire house at Rs.35 per month. Since the order passed was of tentative nature, the question had to be finally decided under the provisions of section 13 of the Ordinance later on and then the question pertains, to merit and could be decided in the proceedings at proper stage is the appellant had complied with the order. Therefore, this ground also ha no force. The learned counsel however referred me to Nizamuddin v. Mst. Nawab Bibi (P L D 1960 Lah. 923). In this case the Controller bad ordered for deposit of arrears of rent at enhanced rate fixed by the Excise and Taxation Department, retrospectively for period prior to date of notice though the tenant under the law was liable to pay enhanced rent from the date of the notice, consequently, the order of the Controller was set aside. In this case the Controller has passed the order for deposit of arrears of rent at the enhanced rate only from the date of the notice and not from any date prior to the notice. Therefore, the cited case is of no help to the appellant. 15. 1 therefore, find no substance in this appeal and accordingly dismiss it.

16. Mr. Burney however, requests that the 'appellant may be allowed 4 months time to vacate premises. I think in the circumstances of the case appellant should be allowed time as prayed provided he continues to deposit rent in accordance with the order of the Controller which I am told that he has been doing after filing of the present appeal. I therefore, allow him time as prayed subject to the above condition. K. M. A. Appeal dismissed.