1975 PLP 200 (SCMR)

MUSAMMAD YAQUB ALI, J.‑The subject‑matter of this appeal by leave of this Court is the order passed by the Rent Controller under section 13(6) of the Kent Restriction Ordinance, 1959, fixing tentative rent of a shop situated on Beadon Road, Lahore. The appellant is the tenant of the shop and the respondent is its landlord. The shop was purchased by the respondent at a public auction in 1962. The appellant who was in occupation of the shop thereupon came its statutory tenant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. He had formerly paid rent to the Rehabilita tion Department at Rs. 85 p.m. but under section 30 he became liable to pay rent to the respondent at the rate determined in the latest assessment by the Municipal Corporation. The respondent first served a notice on the appellant under section 30 demanding rent of Rs. 500 p.m. but soon thereafter he corrected the demand and claimed rent at Rs. 120 p.m. on the basis of the latest assessment made by the Municipal Corporation for the year 1961‑

62. The appellant failed to pay the rent whereupon the respondent filed an application for his eviction on 30‑7‑1964, which, for reasons which are not relevant herein, was dismissed. In the course of these proceedings the Rent Controller fixed the tenantive rent of the shop under section 13(6) at Rs. 1.00 p.m. notwithstand ing the latest assessment by the Municipal Corporation at Rs. 120 p.m. The order of the Rent Controller was upheld, on appeal, by the District Judge. The respondent did not pursue the matter any further but on 4‑10‑1971, be filed a fresh application for eviction of the appellant, inter alia on the ground of default in payment of rent. There was disagreement between the parties as to the rate of rent of the shop. The respondent claimed rent at Rs. 300 p.m. as fixed by the Municipal Corporation in the subsequent assessment for 1965‑66 while the appellant maintained that he was liable to pay rent at not more than Rs. 100 p.m. Section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, provides as under :-- (6) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the fifteenth day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case" Since there was a dispute between the parties as to the rate of rent, the Rent Controller by a well‑reasoned order fixed the tentative rent at Rs. 300 as from 1‑3‑1972. For, the earlier order passed, he fixed the rent at Rs. 100 p.m. on the ground that the respondent had not served any notice on the appellant about the increase in the assessment of rent by the Municipal Corporation earlier than .1‑3‑1972. The appellant disputed the fixation of the tentative rent before the District Judge who upheld the order passed by the Rent Controller and dis missed the appeal. A further appeal filed by the appellant was dismissed to limine by a learned single Judge of the High Court from which leave to appeal was given on 12th :March 1974, to consider the pleas :- that the rent fixed during the proceedings of the first ejectment was res judicata between the parties, and therefore, Rent Controller was not competent to increase the same ; (b) that the proviso to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, does not authorise the transferee to automatically raise the rent payable by the statutory tenant according to each successive revision of the Municipal assessment of the property, and in support of this contention, reliance is placed on Muhammad Musa v. Mistri Dilshad Mohammed and another P L D 1968 Lah. 252; and (c) that after the expiry of 6 years period of statutory protection con templated by the aforesaid section 30, the rent of the shop could be increased only in terms of sections 4 and 9 of the Rent Restriction Ordinance, and that too on the requisite application being made to the Rent Controller, but in this case, no such proceedings were taken by the landlord for enhancing the rent. On hearing the learned counsel for the appellant, we find that none of the pleas raised in the appeal is material for determination of the tentative rent fixed by the Rent Controller for purposes of section 13(6). Admittedly there was a dispute between the parties as to the rate of rent of the shop in question. The Rent Controller was, therefore, called upon to fix the tentative rent which the appellant was to deposit in Court, pending the disposal of the application for eviction. There was no better guidance for determining the tentative rent of the shop than the latest assessment by the Municipal Corporation for the year 1965‑66 in which rent at Rs. 300 p.m. The Rent Controller, at the same time, fixed tentative at Rs. 100 p.m. upto February 1972 on the ground that the appellant had, in pursuance to the order of the Rent Controller who had dealt with the 1st application for eviction in 1966, fixed the rent at that rate. Dealing with the objections raised by the appellant to the fixation of tentative rent, the Rent Controller observed: "However, this matter can be thoroughly proved and assessed in the main proceedings when the parties adduce evidence in support of their respective claims." This, in our opinion, was a correct approach for passing as order tinder section 13(6). The grounds raised in the appeal that the rate of rent fixed in their, earlier proceedings was res judicata, that the transferee of an evacuee property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, could not, automatically, increase the rent and that, after the expiry of 6 years, rent could not be increased on tree basis of the latest assessment' as provided in section 30, acre plainly not material to the determination of tentative rent under section 13(6) of the Urban! Rent Restriction Ordinance. All these issues can be raised when the Rent Controller finally fixes the amount of rent Payable by, the appellant to the respondent as envisaged in section t: The learned counsel for the appellant relied on the decision of a learned single Judge of the late High Court of West Pakistan in Allah Din v. Mst. Kaneez Begum (P L D 1961 Lah. 410) in which it was held that the discretion vested in the Rent Controller under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance was not so wide and that the discretion was to be exercised judicially taking into consideration all the material facts. In that case, Allah Din was paying rent at Rs. 2 p.m. before the transfer of the house to Mst. Kaneez Begum. In the application for his eviction, the Rent Controller, without any material placed on the record, fixed the tentative rent at Rs. 45 p.m. and directed that Rs. 360 be deposited as arrears of rent. This, in the opinion of the learned Judge, was tentamount to ejectment of Allah Din "who being poor could not afford to deposit Rs. 360 as arrears arid pay future rent at Rs. 45 p.m. so as to be able to defend the application for his eviction. There is no similarity between the facts of that case and the case under consideration. The Municipal Corporation has, in the instant case, fixed with effect from 1966‑67, the rent of the shop at Rs. 300 p .m. and the respondent is paying taxes at that rate since then. Thus in adopting this rate as tentative rent of the shop, the Rent Controller cannot be said to have acted injudiciously or without taking into consideration all the material facts, In the result, we find no substance in the pleas raised in the appeal and dismiss it with costs throughout. Appeal dismissed.