P L D 1964 (W (PLP)

For the purposes of this appeal, the following statement of facts would suffice:-- Ghulam Qadir is admittedly the auction purchaser of evacuee house, having obtained the provisional transfer order on 18th October 1960. The house was tenanted before the auction by Hazrat Shah. On 12th September 1961, Ghulam Qadir instituted an application under the Rent Restriction Ordinance of 1959, (hereinafter to be referred as the Ordinance) for ejectment of Hazrat Shah. The grave-men of the application was that Hazrat Shah had fall on into arrears and that he had to pay the rent at the rate of Rs. 20 per mensem. Hazrat Shah, among other pleas, with which we are not concerned in the appeal, raised the plea that he had been tenanting the house ever since 1929 on monthly rent of Rs.

4. The learned Rent Controller acting under section 13, subsection (6), on 9th November 1961, fixed the tentative rent of the house at the rate of Rs. 12, and directed Hazrat Shah to pay the sum of Rs. 180 as arrears of rent on or before the 18th December 1961 to which date the case was adjourned. On 18th December 196h, when the attention of the learned Rent Controller was drawn to the fact that Hazrat Shah had not complied with the order in regard to the deposit of the arrears of rent, he struck off the defence and ordered his ejectment.

2. Hazrat Shah feeling aggrieved took appeal which was heard by Mr. Qaiser Khan, District Judge, Peshawar. The learned Appellate Authority thought that the approximate amount of the rent due within meaning of subsection (6) of section 13 of the Ordinance was the amount which Hazrat Shah was paying to the Custodian Department. The learned Appellate Authority then proceeded to state that he (Hazrat Shah) "Bas produced a number of receipts showing that he was paying rent at the rate of Rs. 6 per month, and in the circumstances he should not have been ordered to deposit rent at the rate of more than Rs. 6 per month so that he should have had a chance of contesting the petition." The learned Appellate Authority consequently accepted the appeal, set aside the order of the learned Rent Controller and remanded "the case back to him for deciding it on merits." Ghulam Qadir feeling aggrieved with the order of the appellate authority has come up on appeal.

3. The learned counsel for the appellant argued that under subsection (6) of section 13 of the Ordinance, the Controller was under statutory obligation, in cases where there was: (1) a dispute in regard to the arrears of rent, or (2) a dispute in regard to the rate of the rent, to "determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose." It was complained that since the parties were not agreed in regard to the rate of rent which Hazrat Shah v; as to pay, and since Hazrat Shah had not been able to make out even a prima facie case that he was paying Rs. 4 per mensem as stated by him is the written statement or Rs. 6 as tentatively fixed by the learned Appellate Authority, the learned Appellate Authority should not have lightly interfered with the discretion which vested in the Rent Controller and which, in the circum?stances of the case, had been very properly exercised.

4. Mr. Akhunzada Behrawar Saeed Khan, learned counsel for the respondent, on the other hand, argued that under sub?section (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958, a tenant or the transferee of an evacuee house would be deemed to continue as a tenant "on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer", and since Hazrat Shah had been paying the sum of Rs. 6 per mensem as rent to the Custodian Department, therefore, the learned Appellate Authority had, In the circumstances of the case, rightly set aside the order of the learned Rent Controller and remitted the case to him for decision on merits. The learned counsel for Hazrat Shah, when asked by the Court if his client could furnish any prima facie proof of fixation of the rent by the Custodian Department at the rate of Rs. 4 or Rs. 6, was not in a position to show any such order but produced certain receipts which showed that his client had deposited the sum of Rs. 6 or the multiple of Rs. 6 on which he tried to build up an argument that Rs. 6 was fixed as a rent.

5. From a reading of subsection (6) of section 13 of the Ordinance it is manifest that when there is a 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." The subsection further provides that if the tenant makes default in compliance of such an order, then "if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off . . . ." It will be plain from reading the language of subsection (6) that a statutory duty is cast on the Controller in cases of dispute of rent to fix "approximately" the rent which he thinks the tenant is to pay and direct him to deposit the amount of arrears, and the failure to comply with the order leaves no option to the Controller but to strike off his defence and to put the landlord into possession. The learned counsel for the respondent tried to suggest that the provisions of subsection (6) give ample power to the appellate authority to substitute its own estimate in regard to the approximate rent which is considered to be due from the tenant, and in the instant case on examining the receipts the learned Appellate Court rightly set aside the order of the Rent Controller and directed the respondent to pay rent at the rate of Rs. 6 per mensem.

6. On a careful perusal of subsection (6) of the Ordinance and giving the arguments addressed at the Bar my careful consideration, I am of the view that subsection (6) of section 13 of the Ordinance vests the Rent Controller with a discretion of making an estimate of the amount of the rent which the tenant is to pay without entering into any inquiry and thus there must necessarily be a guess work in arriving at the fair and proper estimate. It is a well established rule that the appraisement of the evidence by a trial Court should not be lightly disturbed and substituted by the appellate authority and the wisdom of enforcing this rule is rendered all the more necessary when the estimate of the fair rent is a guess work without any inquiry and, it would be hazardous for the appellate Court to substitute its own guess work for the estimate of the Rent Controller unless it is found on material (I have intentionally used the word "material", for the fixation of the tentative rent is done without recording any evidence) on the record that the estimate of the Controller is capricious, vindictive or fanciful. The object] underlying subsection (6) is two-fold (1) that the applicant who institutes the application for ejectment should be spared the lengthy and expensive course of instituting a separate suit for recovery of the arrears of rent and the rent during the pendency of the application and (2) that order in regard to payment of arrears of rent and rent during the pendency of the application would be an effective curb on the tenancy of the tenant to prolong the ejectment proceedings. This being the position the very objects of subsection (6) would be defeated if the appellate authority were to lightly substitute its own guess for the estimate of the Controller. Judged in the light of the above test the fixation of "approximate" rent at the rate of Rs. 12 by the Rent Controller is shown to be an honest guess work. Again, the burden of proof lay on the respondent to prove prima facie that he was equipped with the order of the Custodian in regard to payment of the rent on- a particular rate which, as already stated, he has not been able to produce at the stage when the approximate rate of rent had to be determined by the Rent Controller.

7. In the result, I accept the appeal, set aside the order of the appellate authority, and restore that of the Rent Controller, but in view of the complicated question of law involved in the case, I make no order as to costs throughout. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.