1979 PLP 770 (CLC)

3. The respondent contested this application. He submitted that the rent was only Rs. 200 p.m. The respondent had taken the contiguous plot on rent from the appellant at the rate of Rs. 100 p.m. He was thus liable to pay a sum of Rs. 300 p.m. but in January 1974, the appellant demanded a sum of Rs. 10,000 from him as advance rent to meet the marriage expenses of his daughter and also to bear the expenses of some foreign journey. Accordingly he paid a sum of Rs. 10,500 which was the rent up to the month of November 1976. He referred to para. 4 of the application and submitted that the payment of Rs. 10,500 was admitted by the appellant therein. In the replication the appellant reiterated his position about the rate of rent and default and denied that the sum of Rs. 10,500 or any advance was paid to him by. the respondent. He also denied that the respondent was ever a tenant of the contiguous plot. In this connection he referred to a civil suit filed by the respondent which was dismissed.

4. The learned Rent Controller tentatively fixed the rent at a sum of Rs. 400 per month and by his order crated the 3rd of June 1977, directed the respondent to deposit a sum of Rs. 8,000 as arrears up to 28th of June 1977, and to continue depositing future rent at the same rate before the 15th of each succeeding month. Since the respondent did not comply with the order, his defence was struck off on 11th July 1977.

5. This order was set aside by the learned District Judge, Gujranwala in appeal. Certain documentary evidence was produced on behalf of the parties. On behalf of the respondent copies of the assessment register for the years 1967-68 and 1972-73 were filed which showed that the monthly rent was assessed at a sum of Rs.

200. The appellant filed not only the copies of the assessment register pertaining to the year of 1977-78 from which the rent is proved to be Rs. 500 p.m. but also copies of the plaint in the suit regarding the contiguous plot, report of the Local Commissioner which proved that the said plot or the building therein was admittedly not in possession of the respondent and the judgment of the dismissal of that suit rendered by the learned Civil Judge.

6. The learned District Judge did not take into consideration any document except the copies from the record of assessment of the property and held on the basis of the record pertaining to the years of 1967-68 and 1972-73 that the respondent's contention that the rent was Rs. 200 was believable. In view of the fact that according to the respondent a sum of Rs. 10,500 had already been paid in advance, he held that there was no occasion for passing an order under section 13(6) when there was no arrears due from the respondent to the appellant. Setting aside the order of the learned Rent Controller, he remanded the case for decision of the ejectment application on merits.

7. I have gone through the record and heard the learned counsel. It is clear that the learned District Judge has ignored certain very important features of the case as well as documentary evidence placed on record before him and as such his finding cannot be treated to be a finding of fact. It is the respondent's own case that he was a tenant paying Rs. 300 per month though according to him Rs.200 was rent' or the property rooms were constructed. 1f once it is held that the said plot was not in the tenancy of the respondent, it would follow that the rent of Rs. 300 payable by him was in regard to the property in dispute and that would corroborate the allegation of the appellant that originally the rent was fixed at a sum of Rs. 300 per month. From the facts stated above it is clear that a suit for permanent injunction to restrain the appellant as well as his son lbrar Ahmad from dispossessing the respondent from property 689-B viz., the contiguous plot, was filed on 18-3-1977 i.e. after more than three months of the filing of the application for ejectment. Since it was denied that the respondent was at all in possession of this property, which is admitted by the respondent in the present written statement to belong to Ibrar Ahmad son of the appellant. a Local Commissioner was appointed to visit the spot. On the visit of the Local Commissioner the keys of the locks of the house were presented by lbrar Ahmad son of the appellant, The respondent had to admit before the Local Commissioner that he was not in possession but he stated that he was not in possession for the last 1 J or 2 months. However he could not produce any other proof of his tenancy or even any receipt of the rent. The learned trial Court dismissed the respondent's suit on the basis of this report on 19-11-197''.

8. It may be stated that the suit was filed on 18-3-1977 but the written statement was filed next day on 19-3-1977 and it is very strange that no reference to this payment of Rs. 10,500 or any money as advance rent was made in the civil suit. It was not even alleged in the plaint.

9. It is, therefore clear Liat the appellant's version that the rent of Rs. 300 was about this house and was not inclusive of the adjoining plot owned by a different person, even though he is his son is correct. It is also proved that the appellant was not is possession of that property when the Local Commissioner visited the spot. It may also be noticed that on a query by me about the correctness of the Local Commissioner's report the learned counsel for the respondent argued that the respondent had been dispossessed only one day before the visit of the Local Commissioner. This is obviously incorrect in view of the admission of the respondent himself before the Local Commissioner that he was not in possession for 1 /2 months. 10. -In these circumstances I do not understand how the learned District Judge could have come to the conclusion merely on the basis of copies of the assessment register for the years 1967-68 and 1972-73 that the rent was Rs. 200 per month. The learned District Judge has also failed to consider one other important point. The appellant's case has been that the rent was enhanced from Rs. 300 to Rs. 500 from January 1974. Now this date is very crucial since according to the respondent also it was in January 1974 that a demand of Rs. 10,000 was made from him as advance rent and as a consideration thereof the appellant had to initiate him into the tenancy of the adjoining plot. This supports the version of the appellant that there was some talk between the parties about the rent. The question, however is whether the talk was about the enhancement of rent or for pay ment of advance rent and for letting out the contiguous plot to the respondent. If the version of the respondent on both counts is disbelieved. that would be sufficient for believing the version of the appellant for fixation of the tentative rent. It has been held that the version of the respondent is untrue. Consequently even if tentatively the rent had been fixed at Rs. 500 p.m., it would have beea justified.

11. The documents which have been relied upon by the learned District Judge were prepared before Ist January 1974. In these circumstances no reliance could have been placed upon them. Moreover they could not be relied upon even on the quantum of Rs. 200 per month in view of the evidence in regard to the civil suit, to which reference has already been made in detail.

12. The question of payment of advance rent may now be considered in some detail. There is no documentary evidence to prove this. In the absence of such an evidence the learned District, Judge had no jurisdiction unless some evidence had been recorded by him to believe that the sum of Rs. 10,500 as alleged by the respondent had really been paid by him as advance rent. Moreover the circumstances of the case also belie h;s position. I have already referred to the absence of this alleg,:tion in the plaint of the civil suit which was filed only a day before the filing of the written statement. To me it appears clear that the respondent had had to take this obvi ously incorrect plea since he might have realised by that time that even if the rate of rent was believed to be Rs. 200 that would not be material if it is not proved that the amount of rent up-to-date had already been paid. It is for this reason that this belated allegation had been made. The very fact that the plea was belated and had not been taken in the plaint of the civil suit proves the falsehood of this allegation. None of these points have been taken into consideration by the learned District Judge.

13. In the circumstances of the case when there was ample corrobora tion on the record of the position of the appellant about the initial rate of rent being Rs. 300 per month and its enhancement to Rs. 500, there was no reason why the version of the respondent should have been believed. This was a case in which the learned Rent Controller had in fact given a concession to the respondent by fixing the rent at Rs. 400 per month. The respondent was correctly held to be in arrears. The order of the Rent Controller was, therefore, unexceptionable. 13-A. Before parting with this case I may point out that the finding' of the learned District Judge that section 13(6) applies only if there are arrears of rent is not legal. Section 13(6) will apply to every case falling under section 13 even though the direction may be only for the deposit of future rent.

14. The case was fully proved against the respondent. He had not furnished any reasonable defence for his failure to aside by the order of the Rent Controller passed by him under section 13(6). In these circumstances the Rent Controller was bound to strike off his defence.

15. The appeal is, therefore. allowed, the order of the appellate Court is set aside and the order of the Rent Controller is restored. The respondent appellant the costs of this appeal as well as the appeal shall pay to the appeal before the learned District Judge. M. Y. M. Appeal allowed.