P L D 1980 Lahore 324 (PLP)

This second appeal is directed against an order for the ejectment of the appellants, Najma Begum and four others, from a portion of a house owned by the respondent, Abdul Rehman.

2. Initially, one Muhammad Hafiz was occupying the premises in dispute as tenant under three ladies, namely, Mst. Aisha Bibi, Mst. Barkat Bibi and Mst. Hameedan Bibi who were the owners thereof. .after sometime, Muhammad Hafiz died where upon the appellants, who are his successors-in-interest, continued to occupy the disputed property as tenants. This property was subsequently sold by the said three ladies in favour of the respondent. On this, the respondent demanded rent from the appellants at the rate of Rs. 35, per ,mensem but they tendered it at the rate of Rs. 15 per mensem contending that at the time of the sale of the house in favour of the respondent its monthly rental was Rs.

15. The respondent declined to receive the rent at the rate of Rs. 15, p. m. and moved an application for their ejectment inter alia on the ground of default.

3. The Rent Controller, who heard the application, found that the rate of rent was Rs. 35 per mensem and since the appellants and not paid or tendered rent at the aforesaid rate they were defaulters. He, therefore ordered their ejectment. Feeling aggrieved by the order of the !earned Rent Controller, the appellants went in appeal before an Additional District Judge but without success. Hence this second appeal.

4. Learned counsel for the appellants contended that in the ejectment application filed by the respondent, he had maintained that since the rent of the disputed property as assessed by the Municipal Committee was Rs. 35, per mensem, he was entitled to recover rent at that rate. The argument proceeds that as the tenancy involved in the present case was a contractual one the aforesaid assessment was not relevant. While adducing evidence, the respondent had, however, attempted to show that the appellants paid rent to his predecessors-in-interest (previous owners) at the rate of Rs. 35, per mensem and, therefore, he was also entitled to realise rent at that rate. According to the learned counsel for the appellants the evidence led by the respondent was beyond the scope of the pleadings inasmuch as it was not averred in the ejectment application that the appellants paid rent to the previous owners at the rate of Rs. 35 per mensem. He submitted that since the real controversy between the parties had not been appreciated by the two tribunals below, their orders were not sustainable.

5. It is true in the ejectment application it was not alleged by the respondent that the appellants used to pay rent to the previous owners of the disputed property at the rate of Rs. 35, per mensem and, therefore, he was entitled to recover rent at the said rate but in the issue struck by the Rent Controller, relating to the rate of rent, there is no mention of the assessment of the local authority which, as stated above, was referred to by the respondent in the aforesaid application. The relevant issue reads as follows;- "What war the rate of rent? O. P. A. During the pendency of the proceedings before the learned Rent Controller, no application was made by the appellants for amendment of the issue or for framing an additional issue. it is, therefore, too late in the day for the` appellants to raise objection in regard to the form of the issue drawn up! by the learned Rent Controller.

6. It may also be pointed out that when the stage of evidence was reached it was the respondent who had first produced his evidence to prove that the appellants had been paying rent to the former owners of the property in dispute at the rate of Rs. 35 per mensem. During the course of the examination of his witnesses, it was not objected by the appellants that the evidence being led by him was beyond the scope of the above issue or the pleadings. After the respondent's evidence had concluded, the appellant produced evidence, in rebuttal, to show that they had been paying rent to the i former owners of the disputed house at the rate of Rs. 15 per mensem. It is, therefore, abundantly clear that while producing their respective evidence, the parties were fully conscious of the real controversy relation to the rate of rent, namely, whether the monthly rental paid by the appellants to the previous owners was Rs. 35 or Rs.

15. Thus, no prejudice was, caused to any of the par-Lies by the framing of issue as aforesaid or for not striking an additional issue in regard to the rent charged by the original owners of the house. In the circumstances, the non-framing of a specific issue relating to the rate of rent paid by the appellants to the previous owners of the disputed property is of no consequence.

7. In addition to what has gone above, it is to be noted that the provisions of the Code of Civil Procedure are not strictly applicable to the proceedings under West Pakistan Urban Rent Restriction Ordinance, 1959, and, therefore, it was not at all necessary for the learned Rent Controller to frame the issues. The cases of Khadim Mohy-ud-Din and anorher v. Ch. Rehmat Ali Nagra and another (1), Muhammad Sharif v. Sh. Muhammad Amin (2), Raj Muhammad Afzal Khan etc. v. Zareena Akram, etc. (3) and Faqir Muhammad v. Dr. Muhammad Yasin and 2 others (4), are the authorities in point. What the learned Rent Controller was required to do in pursuance of the provisions of subsection (2) of section 13 of the said Ordinance was to satisfy himself that the default attributed to the appellants had been actually committed by them. In view of the evidence led by the parties, the learned Rent Controller did satisfy himself that the appellants were defaulters and hi finding was concurred in by the appellate authority. It would therefore, fallow that the procedure adopted by the learned Rent Controller was not violative of any provision of law.

8. In view of the foregoing discussion, there is no merit in this appeal. It is, therefore, dismissed in limine.

9. While making his submissions, learned counsel for the appellants had prayed that in the event of the dismissal of their appeal in limine the appellants may be allowed some time to vacate the house in dispute. On this, Mr. Muhammad Aslam Sindhoo, Advocate who was present on behalf of the respondent in connection with a Civil Miscellaneous Petition made in the appeal, had stated that he would have no objection of their vacating the disputed premises within one month. In view 'of this agreement, therefore, I direct that the order of ejectment made against the appellants shall not be executed for one month. M. Y. M. ???????? Appeal dismissed. (1) P L D 1965 S C 459 ??????????? (2) P L D 1977 Lab. 516 (3) P L D 1977 Lab. 662??????????? (4) P L D 1964 Lah. 686