P L D 1976 Lahore 150 (PLP)

This second appeal is directed against the order dated 13th of October 1967, passed by the learned District Judge, Gujranwala, dismissing the appeal of the appellant.

2. The facts of the case are that the appellant, Muhammad Ismail, filed an ejectment application against the respondent on the ground of default in the payment of rent with effect from 4th of August 1961. The property in question was admittedly transferred to the appellant on 4th of August 1960, and thereafter, he issued notice to the respondent under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, demanding the payment of rent at the rate of Rs. 2 per mensem. It is admitted by the appellant that after the issue of notice, the respondent has been paying rent to him at the said rate till 4th of August 1961, whereafter he stopped the payment thereof.

3. The rental value of the property in question was enhanced to Rs. 20 per mensem, according to the assessment made in the year 1962-63 Exh. P/1. The appellant. therefore, again served a notice on the respondent on 2-12-63, copy of which is on the record, intimating that since the rent had been enhanced according to the latest assessment, therefore, the same should be paid at the enhanced rate. As far as the receipt of notice is concerned it has not 'been denied by the respondent in his written statement, but in spite of that ,he continued depositing the rent in the Court at the rate of Rs. 2 per mensem.

4. The present ejectment application was filed on 18th of May 1964 .and it was averred therein that since the rent at the rate. of Rs. 20 per mensem was not paid from 4-8-1961, therefore, the respondent was liable to be ejected -on account of default in the payment of rent. This application was dismissed by the learned Rent Controller and his order passed in this regard was upheld by the 'learned District Judge, Gujranwala, on the ground that the word "latest assessment" as used in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, meant the assessment prevailing .at the time of issue of notice under section 30 of the Act. It was also held by the learned District Judge that the respondent being tenant was obliged to pay rent at the rate of Rs. 2 per mensem for the next six years after the receipt ,of notice under section 30 of the Act. The view taken by the learned lower appellate Court is apparently erroneous. The very language of section 30 of the Act shows that the person occupying the property would become tenant under the transferee on the same terms- and conditions as to payment of Tent or otherwise on which he held it immediately before transfer, provided that the transferee would be competent to charge the rent on the basis of the latest assessment carried out by the municipality or local authority, as the case may be. This provision does not lay down that a person, who has "become tenant by operation of law on the same terms and conditions under which he held his tenancy previously would not be liable to pay rent according A to the latest assessment made subsequently if the rent thereby has been enhanced or reduced. This provision does not give any protection whatsoever to the tenant to continue paying the rent at the old rate even in the presence .of he change brought in the rate of rent by fresh assessment. The transferee of the property has been authorised by this provision to charge rent according to the latest assessment meaning thereby that if the rate of rent has been changed subsequently by the municipality or the local authority, then it would be lawful for him to charge the rent in accordance with that. It does not mean that if he has started accepting rent at the old rate in accordance with -the notice issued by him under section 30 of the Act, then he cannot charge rent at the higher rate subsequently if the rent has been enhanced by the latest assessment. He can, under the law, issue notice to the tenant demanding the payment of the rent at the enhanced rate as made by the 'latest assessment. This view finds support from F. A. Saleem v. Muhammad Yaqoob Khan Tookhi P L D 1967 Lah. 683 , and (2) Nizam Din v. Nawab Bibi P L D 1970 Lah.

923. In the former .case three notices were sent by the landlord to the tenant demanding the payment of rent at different rates. First notice was sent by him after the transfer of property and the rent demanded was Rs. 90 per mensem. Thereafter, the rental value of the property was raised to Rs. 240 per mensem according to the assessment made by the local authority. Even thereafter, the said assessment was reduced to Rs. 150, and yet another notice was issued by the landlord to the tenant demanding the payment of rent at the said rate. It was held that both 2nd and 3rd notices were in amplification of the first notice and did not cancel it, as the rate at which rent was demanded in first notice was in accordance with law and the notice was, therefore, a perfectly valid one. It was further held that the demand made by the landlord in the second notice was, similarly, valid at the time the notice was given, and since the rent was reduced subsequently at the instance of the tenant himself, therefore, the third notice was also valid. It was further held that the tenant was liable to pay the rent, firstly, in compliance with the first notice and then in compliance with the subsequent notice, whereby there rental value of the property was changed. In the latter case the tenant was paying rent at the rate of Rs. 4.50, per mensem in accordance with the first notice served upon him under section 30 of the Act, while latter on, rent was demanded to be paid by him at the rate of Rs. 100, per mensem in accordance with the latest assessment. It was held that on the basis of the prevailing assessment the landlord was justified in demanding the rent at the rate of Rs. 100 per mensem.

5. In the present case as mentioned above rent was enhanced to Rs. 20: according to the assessment made in the year 1962-63. in view of the above discussion the appellant was entitled to claim the payment of rent from the respondent at the said rate. However, according to law, the rent would be payable at the said rate of Rs. 20 per mensem from the date of issue of notice and not prior to that. It is admitted by the respondent that the notice was issued on 2nd of December 1963, which was duly received by him. The ejectment application was filed as mentioned above on 18th of May 1964 and, as such, the respondent was liable to pay the rent of the property at the rate of Rs. 20 per mensem w.e.f. 2-12-1963 to onward. In, view of this, there was a default of five months only on the part of the respondent when the ejectment application was filed.

6. It has been argued by the learned counsel on behalf of the respondent that since his client has been paying rent at the old rate after the receipt of the second notice, therefore, there was no wilful default on his part. He submits that if no rent at all bad been paid, then such inference could be made on the basis of his conduct in this regard. He also submits that on account of the wrong interpretation of the relevant law by both the Courts below, respondent was led into error of not making payment of rent at the enhance rate w.e.f. 2-12-1963 when the second notice was issued to him. According. to him case of wilful default, as such, has not been made out against him.

7. The above discussion, would show that the respondent is obliged to pay rent at the rate of Rs. 20 per mensem w. e. f. 2nd of December 1963, when the notice in this regard was issued to him, and the appellant is not entitled to receive the rent at the enhanced rate for the period prior to that. It is also admitted that the respondent has been paying rent event after the issue of second notice at the old rate. There has been a default of five months only on the part of the respondent so far as the payment of rent at the enhanced rate is concerned. I agree with the learned counsel for the respondent that in the circumstances of the case as discussed above there has not been a wilful default in the payment of rent. The learned counsel for the respondent in order to show the bona fides of the respondent in the payment of rent has made statement at the bar that his client would be prepared to pay rent at the enhanced rate of Rs. 20 with effect from. 2nd of December .1963.

8. Both the Courts below have refused to eject the respondent on, account of the reasons as given in their orders, which are not otherwise warranted by law as discussed above. However, I do not want to exercise the discretion with regard to ejectment of the respondent from the property in question, as the circumstances of the case as referred to above do not make out a case of wilful default on his part. Since the respondent was oblige under the law to make payment at the enhanced rent of Rs. 20 per mensem, w. e. f. 2-12-1963, therefore, this order of mine will be subject to th condition that he would pay the rent of the property from 2-12-1963 t date at the rate of Rs. 20 per mensem, within a period of three month failing which ejectment application would be deemed to have been accepte against the appellant and his ejectment would be effected from the property in question. The amount of rent he has already paid or deposited in the Court would be adjusted towards the payment of the rent to be made by him.

9. The appeal stands disposed of in the terms stated above without any order as to costs. S. Q. Order accordingly.