P L D 1964 (W (PLP)

(4) What should the decree be ? The conclusions, he arrived at, have been earlier referred to. This appeal was admitted on the grounds urged by the learned counsel for the appellant that relevant consideration for the fixation of fair rent of the disputed premises is assessment for 1948, in terms of section 4, sub‑clause 2 (a) of the West Pakistan Urban Rent Restriction Ordinance, and in the context of Akhtar Ali v. Altafur Rehman (P L D 1963 Lah. 390), the respondent should have been ordered to be ejected in view of subsection (3) of section 30 of the Displaced Persons Act. Further that the respondent was a defaulter of the order passed under section 13 (6) of the Ordin ance by the learned Civil Judge and Rent Controller. It was also urged that both the Courts below had given no findings on the latter aspect of the case, in spite of it having been strenuously urged before them, and objections having been taken at the proper time.

5. To crystallize, the points for consideration would be :‑ (1) Whether the rent fixed is fair rent ? (2) Whether default was committed by the respondent in consequence of which is defence should be struck off ?and (3) Whether the service of the notice under section 30 of the Displaced Persons Act can be said to have been served on the respondent?

6. The premises in the occupation of the respondent, which have been described as a godown on the ground floor, admittedly consisted of 10 rooms. The learned Rent Controller has described these premises as being of considerable commercial value, situated in a predominantly Commercial area of the town. On a discussion on Issues 1 and 2, the learned Rent Controller has referred to the appellant having produced a certificate from the Assistant Settlement Commissioner, Sukkur, indicating that the transfer of the disputed premises together with the first and the second floor was made for a sum of Rs. 45,

000. The certificate of the assessment authorities for the year 1959/60 (Exh. 34 in the trial Court), shows the rental value of the disputed premises at Rs. 180 per month. The Municipal certificate, hand written and issued by the Chief Officer of the Sukkur Municipality, states the Rent of these premises is Rs. 100 per month, and that although the rent of these premises for 1947‑48 was assessed at Rs. 180 per month, the latest assessment for the year 1960‑61 had been fixed at Rs. 100 per month. This latter assessment which has been deemed as the latest assessment of the municipality, was accepted as fair rent of the disputed premises by the Courts below, and the learned Civil Judge has remarked that the rent of more than Rs. 100 per month for a house at Sukkur, even though two storeyed, would not be fair. The learned Rent Controller has clearly fallen into error in an assessment of the fair rent of the premises. It is strange that for premises which were admittedly in existence in 1947‑48, the Municipal assessment of this was as much as Rs. 180 per month, and that in 1960‑61, nearly 13 or 14 years later, when the prices and the value of every possible commodity has increased, and even in law an enhanced rent is allowable, the assessment should have been reduced to Rs. 100 per month. This supports the contention of the appellant that the lowering of the assessment effective for 1960‑61 has been man oeuvred or arranged. In the circumstances, I am of the view that the fair rent of the premises should have been assessed at Rs. 180 a per month, and this amount is the fair rent of the premises.

7. The next point is whether there was a default by the respondent of the order of the learned Rent Controller, in con sequence of which his defence should have been struck off, and the disputed premises be ordered to be handed over to the appellant. I find from the record and proceedings that in the appeal filed on the 30th of March 1962, by the appellant before the learned District Judge, the first two grounds were definite in their assertion that the Court of the first instance had erred in allowing the respondent the concession of depositing the arrears of rent, even after he had failed to comply with the orders of the lower Court, fixing a particular date for depositing the arrears of rent, and that on the failure of the respondent to comply with the orders of deposit on the appointed date, he was liable to be ejected, and the trial Court had no jurisdiction to grant further time. This is also one of the grounds urged in the present appeal. Neither the learned Civil Judge nor the learned District Judge in appeal, gave any consideration or finding on this point, nor do they seem to have directed their attention to what is obviously a material issue in the case.

8. It is therefore necessary now to refer to the R & P as before the learned Rent Controller. The sequence of events are that the original application by the appellant against the respon dent was made on the 2nd of February 1961. The opponent/ respondent filed his objections on the 8th of April 1961. There after an application under Order VI, rule 17 for amendment of the original application, was made with an additional prayer that if the rents demanded by the appellant were not proper, the fair rent of the premises may be fixed. This application was granted, and an amended application was filed on the 30th May 1961. On the 22nd of May, however, the learned Rent Controller passed an interim order obviously under section 13 (6) of the Ordinance, tentatively fixing the rent of the disputed premises at Rs. 50 per month, the arrears to be deposited from 6‑5‑1960 till 31‑5‑1961, the respondent to continue to deposit the rent regularly till the disposal of the matter. On 1‑6‑1961,, an application under section 151, C. P. C. was made by the learned counsel for the respondent, requesting condonation of the delay in depositing the monthly rent in time as the opponent was ill and could not comply with the order of the Court "to deposit the rent in time." On the same day, an ex parte order was passed by the learned Rent Controller allowing the application of the respondent to deposit the rent "within a week". On the 23rd November 1961, the appellant filed an application under section 13 (6) of the Ordinance, drawing the attention of the trial Court to the order dated 22nd May 1961, requiring the respondent to deposit the arrears of rent, and the monthly rent before the 5th of each month regularly, and stating that the respondent had made payment of arrears of rent due from him on the 30th May 1961, but that thereafter he had committed default in the payment of monthly rent, had rendered himself liable for ejectment, that in consequence his defence be struck off, and the appellant be put in possession of the disputed premises. On the 25th of November 1961, notice was ordered to issue to the other side for hearing on the 16th of December 1961. The order of that date is:

"Since the opponent had paid up all the arrears till 30‑11‑1961, file." Thereafter the learned Rent Controller proceeded to decide the matter, and finally did so on the 14th of February 1962.

9. In the context of these events detailed earlier, there is force in the contention of Mr. Saghir Hussain for the appellant that the respondent had committed a clear default of the order dated 22nd May 1961, that besides the respondent had admitted he had committed default of this order, and that in consequence) the learned Rent Controller in terms of section 13 (6) of the l Urban Rent Restriction Ordinance, had no option but to strike off the defence of the respondent, and to put the appellant landlord in possession of the property without any further pro ceedings in the matter. It is established law by now that in such circumstances, the Rent Controller under the provisions of the Rent Restriction Ordinance, has no option but, to strike off the defence of the opponent when default, such as has been established in this case, has been committed by the defaulting party.

10. In Shamsud‑Din v. Soofi Abdul Rahman (P L D 1961 B J 88), Mahmood, J. observed that when a respondent in Rent Control proceedings disobeys the order passed by the Rent Controller under the pro visions of the Rent Restriction Ordinance, and is one for deposit of rent before the issues are framed, he does so at his own risk. Further that when under section 13 (6) of the Ordinance an order is made for depositing rent under the Ordinance, the Court has no jurisdiction to extend the same. Earlier in Muhammad Sharif and another v. Muhammad Sharif (P L D 1960 Lah. 1015) and in Dr. Ilyas Dobash v. Muhammad Iqbal (P L D 1960 Lah. 1112), Changez, J. observed that the tenant's defence may be struck off if and when he makes a default in payment of monthly rent pending proceedings in the case. His Lordship proceeded to explain the expression "his defence may be struck off" in his earlier ruling, and in the latter ruling further observed that the Rent Controller was bound to strike off a tenant's defence and to put the landlord in possession on his committing a default of the order of deposit of arrears, and that this deposit was a condition precedent to the tenant's right to produce defence.

11. In a Single Judge ruling by Faruqui, J. in Mst. Karam Bibi v. Mir Muhammad Hassan (P L D 1962 Quetta 67) in considering the question arising out of the tenant denying relationship of landlord and tenant, and the Controller under the Ordinance not being able to make the direction for deposit of arrears of rent without determin ing the status of the parties, and holding that an order made in consequence of the default in such circumstances for the ejectment of the tenant was not sustainable, at page 70 remarked as follows :‑ "It is true that a mere denial of tenancy, howsoever frivolous, would not oust the jurisdiction of the Controller, but when there is such a denial, the Controller must determine that controversy before he makes an order for the deposit of rent. It was argued by Mr. Hanfi the learned counsel for the respondent before me, that the inquiry should be made after the deposit has been made, and when the case is fixed for further hearing. I cannot agree, because once the order for deposit is made, and the so‑called tenant makes a default in the compliance of that order, then if he is the respondent, the Rent Controller is required by the sub section to strike off his defence, and put the landlord in possession of the property. This provision is mandatory, and the Controller has no choice in the matter once there has been a default in the compliance of the order made by him with regard to the deposit of rent." On the factual side, there is the additional aspect of the application dated 1st November 1961, in that there was no support ing affidavit to the contention that the respondent had been ill, nor were any feasible reasons given why the orders of the Court dated 22‑5‑1961, had not been complied with. The order extending the time to deposit the rent is an illegal order in addition to being an ex parte one. At the earliest opportunity at which it appears to have been possible for the appellant to know that the order of extension had been made, he protested against the said order, and contended that the respondent had committed default in the deposit of arrears and of the order dated 22nd May and that his defence should be struck off, and he be put in possession of the disputed premises. Respondent, therefore, cannot then seek the benefit of the observations of their Lordships in Malik Tajuddin Ahmad v. Dr. Muhammad Abdul Shakoor (P L D 1962 Lah. 175). For these reasons, I am clearly of the view that the respondent had commit ted default of the order, and that both the Courts below had failed to take into consideration this aspect of the case, in consequence of which at that stage in the trial Court, the defence of the respondent should have been struck off, and he should have been ordered to put the appellant in vacant possession of the disputed premises.

12. On the point of proof of service of the notice under section 30, there is not much substance as even though it was asserted that the relevant notice under the provisions of the Displaced Persons Act had been sent to the respondent, and since further it was alleged that it was refused by him, no evidence was. adduced on either side. I am unable to accept the contention that by the mere endorsement of the word "refused" on the envelope containing the notice sent in the name of the respondent, a presumption should arise against him without there being any evidence or statement on oath of the appellant in support of this circumstance. There was no proof that this notice was actually served on the respondent, and was refused by him.

13. For these reasons, I allow the appeal of the appellant, since both the Courts below had failed to examine and decide a material issue between the parties in consequence of which the respondent will be rejected, and the appellant put in possession of the disputed premises.

14. I have already given my reasons for arriving at the conclusion that the fair rent of the disputed premises is and should be Rs. 180 per month. The amount due will be payable to the appellant for the same period as allowed by the trial Court, namely, as from a 6‑5‑1960, and until vacant possession of the premises is handed over. K. B. A. Appeal accepted.