1989 PLP 1625 (MLD)

The appellant filed his written statement in which he did not deny the terms and conditions of the agreement of lease. He has further stated that the challans in respect of the property taxes etc. used to be received by the applicant directly at his address and he used to forward the same for payment to the opponent. He has denied that he committed default in payment of property ant' betterment taxes as mentioned above. According to him, the applicant hat: intentionally suppressed the notice issued for payment and did not forward the same to him till notice for auction was served on him. On receipt of copy of letter, from the applicant he hart immediately addressed a letter to Excise and Taxation Department on 10th July, 1979, in which it was pointed out That P.T. 10 Form were not received from the department before the auction notice, and further requested them to forward the same for payment, and the copy of the said letter, was sent to the applicant as well. However, the applicant deposited the above, amount on 12th July, 1979, on his own. That (in receipt of the letter dated 27‑6 1979, from the applicant, the opponent immediately took action and showed the readiness and willingness to pay taxes. In fact, the opponents had paid taxes for the years 1969 to 1979. Rest of the allegations were denied. On the pleadings of the parties, the learned Rent Controller framed the following issues:‑ (1) Whether the opponents are wilful defaulter in the payment of taxes? (2) What should the order be? In support of their respective contentions, Muhammad Naqi, attorney of the applicant/ respondent filed his affidavit‑in‑evidence, and has produced letter dated 16‑3‑1976, as Ex. 1/1, letter dated 14‑12‑1976, as Ex. 1/2, notice of attachment as Ex. 1/3. He has also produced with his affidavit, general power of attorney as Annexure "A", Lease Agreement as Annexure `B' copy of letter dated 16‑3‑1976, as Annexure C‑1, receipts of payment of taxes as Annexures D/1 and D/2, letter addressed to Excise and Taxation Officer `H' Division as Annexure "D/5". He has also produced the receipts of payment of property and betterment tax as Annexures "E" and 'F'. On the other hand, Ahmad Abbasi, Divisional Manager and Attorney in Pakistan State Oil/appellant has filed his own affidavit, and has also produced Power of Attorney as Annexure "A", letter dated 10‑7‑1979 as Annexure "B" and A/D receipt as Annexure "C". The learned Rent Controller after taking into consideration the evidence produced by the parties decided the Issue No. 1 in affirmative, and consequently allowed the ejectment application. The present appeal is directed against the above order of ejectment. I have heard Mr. Nasim A. Farooqi, learned counsel appearing for the appellant, Mr. Rehmat Ellahi, learned counsel appearing for the respondent, and have gone through the R & P of the case. It was contended by Mr. Nasim A. Farooqi, learned counsel appearing for the appellant that the appellant had paid all taxes from 1969 to 1979 in accordance with the agreement. That the appellant did not receive the original challans from the Excise and Taxation Department or from the respondent for the period in question and, therefore, the amount could not be deposited. However, on receipt of copy of letter from the respondent the appellant had immediately asked the Excise & Taxation Department m writing to send bill/P.T. Form 10 to enable him to deposit the amount. That the respondent had deposited the amount hurriedly with mala fide intention. That there was no evidence to show that the appellant had received any challan/P.T. Form 10 or even demand notice for depositing the amount in question and, therefore, the appellant could not be said to be wilful defaulter. Mr. Rehmat Ellahi, learned counsel appearing for the respondent has contended that Ahmad Abbasi, Divisional Manager and Attorney of the appellant has admitted in cross‑examination that all the bills are issued on the address of petrol pump for payment by them. It was further contended by Mr. Rehmat Ellahi that in view of the above admission it was the duty of the appellant to lead evidence on the point of non‑receipt of bill/P.T. Form 10 in respect of the year in question. I have considered the contentions of the learned counsel. In view of the order, which I propose to pass, it is not necessary to discuss the evidence produced by the parties, and their respective contentions before the Court view of the fact that the important point involved in the present case was whether, the appellant tenant had committed wilful default in payment of betterment and property tax, it was necessary to have evidence as to whether the appellant had' actually received the bill/P.T. Form 10 for payment of taxes. This fact has been overlooked by the earned Rent Controller and both the parties have not cared to lead evidence from the Excise and Taxation Department on this point. I am, therefore, of the considered view that the interest of justice requires that this matter should be remanded back to the learned Rent Controller to enable the parties to lead evidence on the above point. I, therefore, allow this appeal, set aside the order of learned Rent Controller, and remand the matter back for allowing the parties to lead evidence on the above point. The learned Rent Controller is directed to provide an opportunity to the parties to lead evidence on the point of service/receipt of bill/P.T. Form 10 in respect of the period for which the default is alleged and thereafter to decide the matter in accordance with law. M.Y.H./P‑96/K Case remanded.