1986 PLP 2007 (CLC)

‑‑‑Ss. 7 6 21(1)‑‑Mutually "agreed rent"‑‑Subsequent increase by Local Authorities‑‑Demand of higher rent‑‑Transferee landlord of rented premises could demand rent according to latest assessment fixed by Municipal Committee or Local Authority‑‑Demand of lesser amount by transferee landlord which was accepted by tenant, became "agreed rent"‑‑Transferee landlord, held, could not demand more than agreed rent by subsequent revision by Local Authority or Municipal Committee. (b) Sind Rented Premises Ordinance (XVII d 1979)‑ ‑‑‑Ss. 12, 15(2)(ii) & 21(1)‑‑Default‑‑Repair made without permission of Rent Controller and consent of landlord‑‑Adjustment of cost of repair in rent‑‑Cost incurred on repair of rented premises could only be adjusted in rent if repair was made by tenant with permission of Rent Controller‑‑Tenants made repairs of rented premises at their own will or necessity without consent of landlord and adjusted cost of repairs in rent of premises‑‑Default stood established in circumstances. Moinuddin Ahmed for Appellants. Syed Hassan Asghar Rizvi for Respondents. The first floor of bungalow bearing No. JM‑1/68,7, Lalchand Hasoomal Road, Parsi Colony, Karachi was transferred by the Settlement Authorities to the respondent under P.T.O. dated 26‑10‑1967. The respondent is in occupation of the portion of that property while the other portion at that time was occupied by one Abdul Jabbar the predecessor‑in‑interest of the appellant. After the transfer, the respondent served a notice under section 30 of the Displaced Persons (Comp. & Reh.) Act, 1958 intimating transfer of property and also asked Abdul Jabbar to pay the rent @ Rs.21 p.m. which according to the respondent was the latest assessment fixed by the relevant authorities. Abdul Jabbar deceased' paid the rent @ Rs.21 p.m. by remitting Rs.259 towards the rent from 23‑4‑1967 to 8‑11‑1968 by money order. Thereafter, it seems that the respondent got the assessment of the premises revised to Rs.50 p.m. by the Excise and Taxation Department, and called upon the appellant to pay the rent at that rate from 26‑10‑1967 up to April, 1969. As the notice was served in May, 1969 the appellants replied this letter in which they denied the claim of the respondent. They also denied the allegation that only Rs.210 had been paid by money order. It was also stated that rent had been paid to the respondent during his illness for which no receipt was issued, but the amount and period was not specified. The respondent, therefore, filed an application under section 13(2)(1) of West Pakistan Urban Rent Restriction Ordinance, 1959 seeking ejectment on the ground of default in payment of rent from 4‑2‑1968 till the filing of the case viz. 6‑10‑1969. The appellants denied the claim and pleaded that Rs.126 was paid for which receipt was not issued. Besides the amount of Rs.259 paid by money order, they have spent Rs.282 towards the electric charges for the water pump and also got the motor pump repaired at the cost of Rs.282 and both these amounts are to be shared equally between the appellants and the respondent and they are entitled to adjustment. After adjusting Rs.282 there is no default on the part of the appellants. The learned Controller however, granted the ejectment application holding that the rent should be Rs.40 p.m. and default has been committed. The controversy regarding the quantum of rent can be disposed of shortly. The respondent had served a notice under section 30 of the Displaced Persons (Comp. & Reh.) Act demanding rent at the rate of Rs.21 p.m. treating it to be the latest assessment carried out by the Municipality or local authority. According to law it was lawful for tha transferees to demand rent according to the latest assessment fixed by the Municipal Committee or a local authority. This was the maximum limit fixed under law which the transferee could demand from the tenant But if the transferee landlord demands a lesser amount and is accepted by the tenant, it becomes the agreed rent, and by subsequent revision A by the local authority or the Municipal Committee, the transferee landlord cannot demand more than the agreed rent. Therefore, in the present case, the agreed rent was Rs.21 p.m. and the demand by the respondent claiming at Rs.5o p.m. was clearly illegal. Reliance placed by the learned Controller on an assessment fixing the rent at Rs.40 p.m. is completely wrong. This however, does not save the appellants. As the rent is to be taken at Rs.21 p.m. it is to be considered whether the appellants have paid the rent at that rate. So far the payment of Rs.126 is concerned it has not been established by evidence and in fact the learned counsel for the appellants has not relied on this payment. His main contention is that the appellants were entitled to adjustment of Rs.282 and therefore, no default has been committed. If it is established that the respondent had agreed for adjustment and on that basis permitted the appellants to spend on repair of electric motor arid also to pay the charges for electricity for operating electric motor, then perhaps the appellants may have a good defence. The burden, therefore, entirely lies upon the appellants to show that the amounts required to be adjusted were paid with explicit or implied consent of the respondent. The learned counsel has referred to the statement of the respondent from which it is clear that the electricity charges in respect of water pump which is used by both the parties was paid by the appellants but there is no evidence to show that the respondent had agreed and allowed the appellants to pay and adjust it in the rent. Even if for argument sake it is taken by implication that because the benefit was being received by the respondent also, half of the charges should be borne by the appellant, the question remains whether the appellant was entitled to get the electric motor repaired and adjust it in the rent. There is specific provision in law which provides that repair can be made only with the permission of the Controller and then the cost can be adjusted in the rent. No such procedure was adopted by the appellants. They got it repaired at their own will or necessity without the consent of the respondent and adjusted it in the rent. In the circumstances the default stands established. The appeal is dismissed. The appellants are allowed six months time to vacate and handover vacant possession of the premises in dispute to the respondent. H.B.T. Appeal dismissed.