P I (PLP)

2. Before dealing with other questions that arise in the case, I might dispose of a contention raised on behalf of the appellant to the effect that the transfer in favour of Mst. Kaneez Begum, the sole respondent in this appeal, was invalid because the property that had been transferred to her being trust property, its transfer was not permitted under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act 1958 and, therefore, Mst. Kaneez Begum was incompetent to take proceedings against the appellant for this ejectment. No proof has been furnished with regard to the property being trust property and indeed learned counsel for the respondent has produced a document which shows that the property had been declared by a competent authority not to be trust property. This document makes it clear that the transfer in favour of the respon dent was not open to .attack on the ground urged against it. Confronted with this document, learned counsel for the appellant gave up his objection to the transfer of the property in favour of the respondent and addressed arguments on other points mentioned in the petition of appeal presented to this Court.

3. Learned counsel for the appellant contended that the appellant had been a tenant in the premises in his possession since before the Partition of British India and after the Partition an order of allotment had been passed in his favour by the Rehabilitation Authorities and that he continuously paid Rs. 2 as rent to the Rehabilitation Authorities and the Chief Settlement Commissioner and, therefore, the order of the Rent Controller with regard to the deposit of arrears of rent and deposit of monthly rent by ' the fifth of every month on the basis of the rent being Rs. 45 per mensem was not justified. To this conten tion of the learned counsel for the appellant, the learned counsel for the respondent replied that the appellant was in possession of the entire ground floor of the house which had been transferred to the respondent, and as the transfer in favour .of the respondent had been made on the assumption that the rent of the premises transferred to her was Rs. 66 per mensem, the fixation by the respondent of Rs. 45 as fair and proper rent of the premises in the possession of the appellant, and the fixation of that amount as the rent by the Rent Controller for the purposes of section 13 (6) of the Ordi nance was proper. The learned counsel added that as there was a dispute between the parties with regard to the rent payable for the premises, which were admittedly in the possession of the appel lant, the Rent Controller was within his rights in tentatively fixing Rs. 45 as the rent and the amount fixed was not final and was subject to alteration by the Rent Controller. The two provisions of law that require consideration for the purposes of the above‑mentioned arguments are subsections (1) and (2) of section 30 of the Act, and subsection (6) of section 13 of the Ordinance. These provisions run as follows :‑ Section 30 of the Act. " (1) Where any person is in possession of any evacuee house or shop or has been declared on or before the twentieth day of December 1958, by a Custodian to have tenancy rights from a date prior to the fourteenth day of August 1947, in any industrial concern, cinema house or printing press which, is transferred to any other person under the provisions of this ct, then, notwithstanding anything contained in any other law such person shall without prejudice to any other rights which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be 'a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer Provided that‑ (a) it shall be lawful, for the transferee to charge a rent on the basis of the latest assessment of the Municipality or local authority, as the case may be ; and (b) it shall not be lawful for the transferee to eject persons from the house, shop, industrial concern, cinema house or printing press for a period of three years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by, registered post (acknowledgment due). (2) Where the transferee does not give notice within one month 'as required by proviso (b) to subsection (1), the period of three years mentioned therein shall count from the date of receipt of such notice by. the tenant." Section 13 of the Ordinance : . " (6) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the, monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if be‑is the respondent, his defence shall be struck‑off and the landlord put into possession of the property without taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant." It would be noticed that subsection (6) of section 13 gives the Rent Controller wide powers to fix the amount of rent tentatively and to act on that basis. It is, however, clear that the discretion vested in 'the Rent Controller should be judicially exercised. The Rent Controller cannot, for example, fix the amount of rent as such .a high figure that the tenant will have no option left but to make himself liable for ejectment on account of non‑payment of the amount mentioned in the order of the Rent Controller. In cases of the present type, namely; where a transfer has been made under the provisions of the Act, the discretionary powers of the! Rent Controller are not as wide as in ordinary cases because it is clear from the language used in subsection (1) of section 30 of the Act, which has been reproduced above, that for a period of three years after the transfer in, favour of a person, a tenant ill the premises transferred will continue as a tenant of the new owner on the same terms and conditions on which he held the property before its transfer, but the new owner can enhance the rent only to the extent mentioned in clause (a) of subsection (1) of the section. In his written statement, the appellant had asserted that he was paying Rs. 2 a month as rent of the premises in his possession, and it is, therefore, clear that fixing Rs. 45 per mensem as the rent tentatively could be done only if the assertions in the petition that the fair and proper rent was Rs. 45 were entirely uncontrovertible. There is so much disparity between the figure mentioned by the tenant and that claimed by the land lord as rent that accepting the figure mentioned by the landlord. even tentatively, cannot by considered to be a judicial exercise of jurisdiction which the law has given to a Rent Controller by means of subsection (6) of section 13 of the Ordinance. It is obvious that if that figure is allowed to remain unchanged, the result would be the ejectment of the appellant who, being a poor man, can ill‑afford to deposit Rs. 360 in a lump‑sum as arrears of rent due and to pay Rs. 45 as the monthly rent. It is‑of course open to the rent Controller to arrive at the conclusion that the rent of the premises was Rs. 45 but that .conclusion can be arrived ad only after the entire evidence has been taken into consideration but fixing the rent at that figure without taking into consideration ail the material facts, even though that fixation may be tentative., cannot be allowed to stand.

4. In view of what I have said above, I would accept the appeal, vacate the order passed by the learned Rent Controller and the learned District Judge and remand the case to the learned Rent Controller with the direction that before passing an order under subsection (6) of section 13 of the Ordinance he should consider all the relevant material so that his order does not work to the prejudice of either party. The costs incurred so far will be costs in the case. The parties will appear before the learned Rent Controller on the 21st of March 1961. A. H. Case remanded.