1979 PLP 516 (SCMR)

G. SAFDAR SHAH, J.‑The rather protracted litigation between the parties herein concerns a composite commercial tenement bearing Nos. G‑6 1/1‑C, 2/1‑B and 3,11 constructed on survey Nos. M. R. 2/31 and 31‑A, Ward No. II‑B‑127, situated near the Bouiton Market, Karachi. The case of the petitioner has throughout been that the said property, which was evacuee property, was let out to him by the Custodian on rent and thereafter he raised upon it the said commercial tenements. The record would show that the property in question was treated by the Settlement Department as a big mansion; that the same was subsequently purchased by the respondents in open auction in which behalf the Deputy Settlement Commissioner, vide his letter, dated 6‑10‑1‑959, intimated the petitioner. However, since the petitioner did not receive any notice from the respondents under section 30, of the Displaced Persons Act, 1958 (hereinafter called the Act) he continued paying rent to the Custodian Department at the agreed rent of Rs. 223, per month. On 25‑6‑1960, however, respondents served the petitioner with a notice and demanded that they be paid rent at Rs. 750, per month. In reply thereto the petitioner sent to the respondents, alongwith his letter dated 9‑7‑1960, a cheque for Rs. 1,115, as the rent of five months, w. e. f. 1‑2‑1960 to 30‑6‑1960 at the rate of Rs. 223, per month which he claimed was the agreed rent of the ‑premises. On 17‑8‑1960, however, respondents wrote another letter to the petitioner reiterating their stand that the rent of the premises was Rs. 750, per month. But in reply thereto the petitioner vide his letter dated 24‑8‑1960, maintained that the rent of the premises was Rs. 223, per month and if the respondents agreed he would remit the rent at the said rate. By their letter, dated 24-5‑1962, however, the respondents again demanded from the petitioner rent at the rate of Rs. 565 per month for the period 6‑10‑1959 to 30‑4‑1962 and also intimated therein that the tenancy of the respondents would stand terminated after the period, of one month from the receipt of the said notice. By his letter, dated 7‑6‑1962, the petitioner replied that since he had committed no default to paying the rent at the rate of Rs. 223, per month, and which rent he was still willing and ready to pay, his tenancy cannot be terminated. On 18‑4‑1963, however, the petitioner sent to the respondents a cheque for Rs. 8,474, for the arrears of rent for 38 months, w. e. f. February 1960 to March, 1963, at the rate of Rs. 223, per month. But by their letter, dated 23‑4‑1963, the respondents informed the petitioner that the said cheque had been encashed by them and the amount of Rs. 8,474, appropriated against the arrears of rent at the rate of Rs. 565, per month. The petitioner, however, disagreed with the respondents in that behalf and vide his letter, dated 30‑4‑1963, informed him that their said demand was illegal, as also that they had no right to appropriate the said amount at the rate of Rs. 565, per month. Faced with this situation, the respondents filed an ejectment application against the petitioners in the Court of the Rent Controller at Karachi on 15‑8‑1963 on three grounds:‑‑ (1) default in paying rent; (2) having sublet the premises without prior permission; and (3) that he had impaired the utility of premises in his possession. It seems that the petitioner, somehow acquired the knowledge of the institution of the said ejectment proceedings against him, and consequently tendered to the respondents on 4‑10‑1963 the rent of the premises at the rate of Rs. 223, per month, but the same was refused by the respondents. Now the admitted position is that when the respondents wrote to the petitioner on 29‑5‑1962, demanding therein the rent of the premises at Rs. 565, per month, the Karachi Municipal Corporation had assessed the rent of the premises at that rate. But during the pendency of the ejectment proceeding in the Court of the Rent Controller, on an application filed by the petitioner,' the said Corporation reduced the rent of the premises to Rs. 347, per month. Notwithstanding this position, however, the respondents again. wrote to the petitioner on 17‑10‑1963, demanding therein the payment of rent at the rate of Rs. 565, per month. But their said demand was refused by the petitioner. Upon these facts, the learned Rent Controller proceeded with the case, framed the requisite issues in the proceedings, and after recording the evidence of the parties dismissed the petition filed by the respondents holding that the petitioner was not a defaulter, nor he had sublet the premises, nor it deed he had impaired the utility of the building. The respondents went in appeal against the said order to the Court of the Additional District Judge, Karachi, where the petitioner remained ex pane, who vide his judgment dated 13‑3‑1967, allowed the same only on the ground that the petitioner had sublet the premises without the permission of the respondents. Feeling aggrieved, the petitioner went to the High Court in Second Appeal. In the High Court, in view of the compromise entered into between the parties, the appellate order of the learned Additional District Judge was set aside and the case remanded to 'him with direction that the same should be disposed of on all the issues framed in the proceedings by the Rent Controller. In consequence of the said remand order, another learned Additional District Judge took up the case and vide his judgment, dated 17‑11‑1971, dismissed the appeal of the respondents. Respondents, therefore, went in Second Appeal to the High Court, which was allowed by a learned Single Judge vide his judgment, dated 3‑2‑1979, only on the ground of default of the respon dents in paying rent at the rate of Rs. 565, per month, which was admittedly the rate at which the K. M. C. had assessed the premises and in which behalf respondents had intimated the petitioner, vide their letter dated 9‑10‑1963, but he had refused to discharge his obligation. In seeking leave to appeal, the learned counsel for the petitioner has contended: (1) that the concurrent finding recorded by the two Courts below to the effect that the petitioner was not proved to have committed any default in paying rent was essentially a question of fact, and so the High Court had no jurisdiction to upset the said finding in Second Appeal; (2) that once the High Court recorded the conclusion that the respondents had been demanding the payment of rent at exorbitant rates, the petitioner should not have been penalized as in that event he cannot be said to have committed a wilful default; and (3) that the respondents had served no notice on the petitioner under section 30 of the Act, with the result that there existed no relationship between them of landlords and tenant, but this aspect of the case escaped the notice of the High Court. Now by going through the judgment of the High Court, which is quite an elaborate judgment, what we have noticed is that the petitioner was found to have committed three defaults in the payment of rent to the respondents. But in respect of his two defaults, the learned Judge condoned his seeming lapses as he was found to have acted in good faith. As to the third default committed by him, and on the basis of which the High Court set aside the judgment of the learned Additional District Judge, the learned Judge in the High Court recorded the conclusion that "A recital of the above facts will show that despite proper demand of rent, at the prevailing rate of assessment by the K. M. C. made by the appellants in their letter dated 19‑5‑1962, the respondent failed to pay or tender the due rent to the appellants. It was contended by Mr. M. A. Farooqi, the learned counsel for the respondent, that since even this demand was excessive, the respondent was not bound to comply with the same. At the time when the demand was made, there was no revision or reduction. of the assessment by the K. M. C. The mere fact that the respondent had made representation to the K. M. C. for reduction of the assessment, did not entitle the respondent not to pay or withhold the rent which was demanded in accordance with the latest Municipal assessment, as held by their Lordships of the Supreme Court in the case of Ahmed Khan v. Sakina Bi ((1)1969SCMR435). The fact that the earlier cheque for Rs. 1,115, sent by the respondent in July, 1960, had been returned by the appellants, also did not absolve the respondent from paying the due rent in accordance with the latest Municipal assessment, when such demand was made. As pointed out earlier, even after the K. M. C. had intimated the appellant in October, 1963, that the assessment of the premises had been reduced from Rs. 565, to Rs. 347, per month, he did not pay or tender the rent at this reduced rate to the appellants even up to the time of the filing of the rent petition. As pointed out by their Lordships of the Supreme Court in the case of Ghulam Rasool v. Ghulam Rasool (1977SCMR147), the protection from ejectment provided to the statutory tenant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is available to him only so long as he fulfils the terms and conditions of the tenancy and non‑payment of the due rent after notice renders the tenant liable to ejectment". We respectfully agree with the said conclusion recorded in the High Court. It is not disputed by the learned counsel for the petitioner that the respondents had conveyed to the petitioner, vide their letter dated 29‑5‑1962 that according to the latest assessment of the K. M. C. the premises in dispute had been assessed to Rs. 565, per month. But the; petitioner not only refused to pay the rent, at the said rate, but maintained that he was only obliged to pay at the rate of Rs. 223 per month. Now it is evident that the said assessment carried out by the K. M. C. cannot be said to be exceptionable, as the learned counsel conceded before us that prior thereto the K. M. C. had given wide publicity to the effect that it intended to embark upon the operation of the latest assessment of the rents of the properties situated in the same area, where the property in dispute is situated. But the petitioner remained indifferent to the said proceedings. It would, therefore, follow that the petitioner was obliged to pay rent to the respondents at the rate of Rs 565, per month. But he refused to pay or tender the same to the respondents. Similarly, after he succeeded to get the said rent reduced to Rs. 347, per month, again he refused to pay the same at the said rate, with the result that he clearly proved himself to be contumacious defaulter. Mr. S. M. Abbas, the learned Advocate‑on‑Record, appearing for the respondents‑ caveators, in an effort to tear away the false mask worn by the petitioner to the effect that he had all along been acting in good faith, produced before us the letters of the petitioner, enclosing therewith his cheques in respect of the payment of rent for 37 months, and argued that the said cheques were sent by him only to show his bona‑fides in the present proceedings. The learned counsel further argued that in para. 5 of the petition a deliberate misstatement was made to the effect that "The petitioner deposited the rentals regularly in Court at the rate fixed by the Controller" and consequently the petitioner has disentitled himself to any relief in the present proceedings. Now by going through the said letters written by the petitioner to the respondents, what we noticed is that they had been written in the month of April, 1979, and considering that the present petition was filed in this Court on 12‑4‑1979, the contention urged by Mr. Abbas cannot be said to be without substance. We are also inclined to agree with him that a deliberate misstatement was made in para. 5 of the petition because if the petitioner had continued depositing the rent of the premises regularly in the Court of the Rent Controller evidently it would be unnecessary for him to have sent the said cheques to the respondents again in the month of April, 1979, in respect of the payment of arrears of rent for 37 months. It would thus be seen that the first two contentions urged by. Mr. Farooqi, the learned counsel for the petitioner are evidently misconceived. It is true that the learned Rent Controller as well as the learned Additional District Judge both had held that the petitioner was not proved to have committed any default in paying rent to the respondents. But in recording the said finding they evidently ignored the fact that the petitioner, not withstanding the fact that a proper demand had been made on him in that behalf, had failed to pay to the respondents the rent of the premises at the rate of Rs. 565, per month which was admittedly the latest rent assessed by the K. M. C. In other words the said crucial aspect of the case having gone unnoticed in the two Courts below, the High Court was well within its right to upset the said finding even in the exercise of its jurisdiction under section 100 of the Code of Civil Procedure. As to the last contention urged by the learned counsel the same was evidently not raised in the two Courts below and consequently the High Court also did not consider the said contention. In any event in the notice, dated 25‑6‑1960 served by the respondents on the petitioner (by registered p post acknowledgement due) it was clearly intimated that the property in dispute had been transferred to them by the Settlement Departments so that he should pay them the rent in future part from the fact that substance the said notice must be held to be a notice under section 30 of the Act, the conduct of the petitioner throughout has been that of a tenant of the respondents. We are, therefore, of the view that the contention urged by the learned counsel is not only an afterthought but has no substance in it. This petition, therefore, fails and is dismissed. However, in view of the peculiar facts and circumstances of this case, we allow four months time to the petitioner to hand over the possession of the premises to the respon dents subject of course to his paying rent for the said period before the 15th day of each calender month. Petition dismissed.