2014 PLP 426 (MLD)

MAMOON RASHID SHEIKH, J.

Through this petition the petitioner has assailed the order dated 31-10-2013 passed by the learned Additional Rent Controller, Rawalpindi Cantt. (respondent No.2), under the provisions of section 17(8) of the Cantonments Rent Restriction Act, 1963. The petitioner has also assailed the order dated 31-1-2013 whereby respondent No.1 was allowed to amend his ejectment petition.

2. Submits that the impugned order has been passed without taking into consideration the fact that the tenancy between the parties is an oral tenancy. The monthly rent being paid by the petitioner to respondent No.1 in respect of the demised premises which are in the shape of a room on the upper storey of the building in question is at the rate of Rs.2,500 whereas through the ejectment petition respondent No.1 claimed that the current rate of rent is Rs.33,000 per month. The major ground taken up in the ejectment petition is the ground of default and it is contended that the petitioner has failed to pay rent to respondent No.1 since November, 2011. Further submits that through the impugned order dated 31-10-2013 the petitioner has been directed to deposit the exorbitant amount of Rs.6,93,180 as arrears of rent before 28-12-2013 and future monthly rent at the rate of Rs.21,780 per month before the 5th of the next month. The rent of October, 2013 to be deposited before 5-11-2013.

3. Contends that the tentative rent fixed by respondent No.2 is against the facts and the law. Respondent No.2 has failed to appreciate that the petitioner has spent a colossal amount for renovation of the demised premises and as per the oral tenancy the rate of rent is Rs.2,500 per month. The demised premises are above a shop owned by respondent No.1 on the ground floor. Respondent No.1 has filed an ejectment petition in respect of that shop too. The tentative rent for that shop has been assessed as Rs.8,500 per month. In such circumstances respondent No.2 was not justified in coming to the conclusion that the tentative rent of the demised premises should be Rs.21,

780. Further contends that there was no evidence on the record for respondent No.2 to conclude that the tentative rent of the demised premises should be Rs.21,780.

4. I have considered the arguments of the learned counsel for the petitioner and have also gone through the record.

5. It is settled law that under that under the provisions of sections 17(8) & (9) of the Act, ibid, in ejectment petitions (in absence of a denial of the relationship of landlord and tenant) where default is alleged tentative/approximate rent is ordinarily fixed by the Additional Rent Controller primarily on the basis of the pleadings of the parties. It is the statutory duty of the Additional Rent Controller to pass an order under section 17(8) of the Act, ibid, before framing of issues. Whilst passing such an order the Additional Rent Controller is not bound to hold a detailed inquiry and is to fix the amount of tentative rent on the basis of the material placed before him by the parties. There is no rent deed on the record. Admittedly, the tenancy is oral and no receipts regarding payment of rent have been placed on the record. The learned counsel for the petitioner has been unable to show that the rate of tentative rent is not in accord with the pleadings of the parties. In such circumstances, the impugned order of fixation of tentative rent under section 17(8) of the Act, ibid, does not appear to be arbitrary or perverse.

6. In any event, the actual rate of rent is yet to be determined during the course of recordal of evidence in the ejectment proceedings. Any deposits made by the petitioner by way of arrears and/or future rent under the impugned order would be adjustable towards the final liability of the petitioner, if any.

7. The learned counsel for the petitioner has also been unable to satisfy the Court that the future rent of the demised premises for the month of October has been deposited by the petitioner before, 5-11-2013 as directed by respondent No.2. It would, therefore, appear that the petitioner is already in default and the provisions of sections 17(8) & (9) of the Act, ibid, have not been complied with by the petitioner.

8. It may be pertinent to mention here that even though through the instant petition the petitioner has also challenged the order dated 31-1-2013 whereby respondent No.1 was allowed by respondent No.2 to amend the ejectment petition to the effect that the date of default has been substituted as November, 2010 instead of November, 2011, however, the learned counsel for the petitioner did not address any arguments in this respect, I would, therefore, not like to dilate upon this aspect of the case.

9. Under the circumstances, this petition fails and is dismissed accordingly with the direction that respondent No.2 shall not be influenced by any observation having been made in this order and shall proceed in the matter strictly in accordance with the law. AG/M-12/L Petition dismissed.