1983 PLP 2824 (CLC)

5. Both these issues were decided by the learned Rent Controller against the appellant and he was ordered to vacate the disputed premises

6. Feeling aggrieved by the order of the Rent Controller, the appel lant went in appeal before the District Judge but without success. He has, therefore, come up in second appeal to this Court.

7. While deciding the first appeal the learned District Judge did not discuss the finding of the learned Rent Controller on the first issue. The only remark made by him in the matter was that the said issue was decided against the respondent (appellant herein). Learned counsel for the appellant contended that the order passed by the District Judge was no order in the eye of law inasmuch as he failed to look into the finding of the learned Rent Controller on the first issue although that finding had been assailed by the appellant. This plea of the appellant is supported by an affidavit of the learned counsel who argued his first appeal before the learned District Judge. In that affidavit, it has been stated that the finding of .the learned Rent Controller on the first issue was also ques tioned before the learned District Judge. On this, I obtained the report of the learned District Judge which is to the following effect "From the perusal of the order under appeal it is clear that no discussion was made on issue No.

1. So far as I can recollect this issue might not have been pressed at the time of arguments before me". Learned counsel for the appellant maintained that since, in his report, the, learned District Judge had not clearly denied that the said issue was discussed before him, the case deserved to be remanded to him for deciding the appeal afresh after examining the appellant's contentions on that issue.

8. On the other hand, learned counsel for the respondent submitted that since in his report it was stated by the learned District Judge that from "the perusal of the order under appeal it is clear that no discussion was made on issue No. 1" he had pointed out that the appellant did not take any exception of the aforesaid finding of the learned Rent Controller during the course of the hearing of the appeal and, therefore, the appel lant could not take the advantage of his own shortcoming and ask for the remand of the case with a direction to the learned District Judge to rehear him and decide the appeal afresh. According to him, even if it were held that the appellant had challenged the finding of the learned Rent Controller on the first issue but it was not discussed by the learned District Judge, this court may decide that issue also without remanding the case to the appellate authority.

9. In view of the report received from the learned District Judge, it seems that the learned counsel for the appellant did not question this finding of the learned Rent Controller while arguing the appeal before him. Even if he had done so, I would not, in the circumstances of the present case, like to remand the case to the learned District Judge for fresh decision. I would, therefore, myself dispose of the appellant's objection to the finding of the Rent Controller on the said issue.

10. The objection of the appellant is that before filing the second application for ejectment of the appellant, which has given rise to the present appeal, he had withdrawn another application for his eviction and, therefore, the instant application was not competent. While raising this contention learned counsel for the appellant relied on section 14 of the said Ordinance which reads thus: "The Controller shall summarily reject any application under sub section (2) or under subsection (3) of section 13 which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance". Copy of the order Exh. R. 3 shows that an application for ejectment had been withdrawn by the respondent, but is not known as to what were, the grounds taken by him in that application. The appellant failed to' place on record a copy of the former application made by the respondent., In the circumstances, it is not possible for me to say that the issues involved in the earlier application were the same as raised in the application leading to the present appeal. This being the factual position, the instant application cannot be thrown away on the score of provisions of section 14 of the said Ordinance.

11. It was also contended by the learned counsel for the appellant that according to paragraph (a) of the proviso of the section 30 of the said Act, the respondent could charge rent on the basis of the latest assessment carried out by the municipality or local authority, as the case may be,, for other properties in the locality generally, but as he did not produce any evidence regarding assessment of the other properties which are situate in the same locality in which the property in dispute is located the respondent could not demand rent on the basis of the assessment of the property in dispute only. In reply, it was maintained by the learned Counsel )'of the respondent that since the appellant did not raise before the learned Rent Controller, the objection relating to the assessment of other properties he cannot do so now at the stage of second appeal.

12. I am inclined to agree with the learned counsel for the respon dent. If the respondent was serious in taking exception to the validity of the notice on the ground that the rate of rent demanded therein was not justified by the assessment of the other properties he should have raised this specific plea before the learned Rent Controller and should also have led evidence in support thereof but this was not done by him. In the circumstances, he cannot be permitted to question, at the stage of second appeal, the legality of the demand notice on the ground that it was not supported by the assessment of the other properties in the locality. In Tahir A Khairullah v. Mst. Zareefun Nissa (P L D 1968 Kar. 182) also, an objection like the one under consideration was raised at the stage of second appeal but was repelled with the following observation: "Counsel has, therefore. contended that the latter assessment for other properties in the locality generally and not for the property in dispute determined the rate at which rent was to be paid. If this contention of counsel is intended to emphasis that the rate of rent fixed by the Municipal Corporation at Rs..90 per month was not relevant, then it also means that the rate of rent fixed by the Excise and Taxation Department at Rs. 30 per month was not relevant. No attempt was made by the appellant to put on record the rate of rent for other properties in the locality generally payable according to the latest assessment nor is it possible to conclude that the appellant was not liable to pay any rent at all. At the time at which the application was tried and the First Appeal was heard, the question was whether the latest assessment made by the Municipal Corporation of the Excise and Taxation Department was relevant. The contention now raised by the counsel that it should be the assessment for other properties in the locality generally, is entirely new one, and raises a mixed question of law and fact. It cannot, therefore, be taken into consideration. I, therefore, decline to take into consideration the plea that the rent demanded by the respondent was not in accordance with the assessment of properties other than the disputed properties.

13. Another contention raised by the learned counsel for the appellant was that even after the decision of the aforementioned two issues against the appellant, the learned Rent Controller was not justified in ordering his ejectment on the ground of default without framing a new issue in this behalf and deciding the same after allowing the parties to produce evidence on that issue. He relied on subsection (2) of section 13 of the said Ordinance which provides that reasonable opportunity shall be given to a tenant before his ejectment is ordered under the said Ordinance.

14. On the contrary, learned counsel for the respondent urged that since the appellant had not alleged tire payment of rent at the rate of Rs. 20 per mensem as demanded by the respondent, and the appellant's plea was that he had been depositing rent with the learned Rent Con troller at the rate of Rs. 5 per mensem it amounted to an admission on his part that he had not been paying rent at the rate of Rs, 20 per mensem and if the respondent was able to show that he was entitled to demand rent at the rate of Rs. 20 per mensem the appellant would, obviously, be a defaulter. The argument proceeds that in the circumstances there was no need to frame a separate issue on the question of default and allow the parties to produce evidence thereon, because the facts admitted need not be proved.

15. It has already been held above that the demand notice served by the respondent on the appellant requiring him to pay rent at the rate of Rs. 20 per mensem is unexceptionable. It was not alleged by the appellant that he had paid or tendered rent at the said rate. His case was that he had been depositing rent at the rate of Rs. 5 per mensem. Thus, there was no need to frame an issue with a view to finding out if the appellant had paid or. tendered rent at the rate of Rs. 20 per mensem. The objection of the learned counsel for the appellant regarding the non‑framing of the aforesaid issue is, therefore, mis conceived.

16. Admittedly, the appellant did not pay or tender rent at the rate of Rs. 20 per mensem despite service of notice under section 30 of the said Act. He deposited rent with the Rent Controller at the rate of Rs. 5 per mensem but as it was less than the rent demanded from him, its deposit was not a valid tender. I, therefore, agree with the two tribunals below that he is defaulter.

17. The appeal therefore, fails and is dismissed with costs. The appellant is, however, allowed two months time to vacate the premises in dispute. M. Y. H. Appeal dismissed.