P L (PLP)

This judgment will dispose off Second Appeal No. 281 of 1978 and Second Appeal No. 333 of 1978. Ahmad Hussain & Co. (hereinafter called "the tenant") are the appellants in Second Appeal No. 281 of 1978 and respondents in Second Appeal No. 333 of 1978. Ahmad Raza Khan (hereinafter called "the landlord") is the respondent in Second Appeal No. 281 of 1978 and appellant in Second Appeal No. 333 of 1978. The landlord is the owner of premises bearing No. G/2 situated on plot No. SR-9/86, Serai Quarters, Karachi, and the same has been in the occupation of the tenant who is shown as a recorded tenant in the Custodian records. The premises were transferred to landlord by the Settlement Authorities on 12-7-1960. Notice under section 30 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958, dated 27-11-1965 was given by the landlord to the tenant and the same was served upon the tenant on 30-11-1965. In the said notice under section 30, the fact about the transfer of the property in favour of the landlord was mentioned and it was further stated that the tenant was liable to pay to the landlord rent at the rate of Rs. 122.50. It was also alleged in the said notice that the tenant had sublet the premises to other persons unauthorisedly and without permission of the landlord. The tenant replied by the letter dated 2-5-196.6 denying the allegation about subletting and stating that the. tenant was willing to pay the rent payable under the law at the rate it was payable before the transfer of the said premises to the landlord provided the landlord could prove the transfer of the said premises in his favour by showing the title documents to the tenant. No reply was sent to this letter but then the landlord filed Ejectment Case No. 1761 of 1967 (old No. 512 of 1966) on 23-11-1966 for the ejectment of the tenant from the premises in question on the ground of non-payment of rent and for sublet ting. Written statement was filed by the tenant in which again title of the landlord in respect of the premises in question was challenged. The fact that the landlord was transferee of the property in question was not admitted. It was stated that in these circumstances the question of tendering the rent to the landlord could not arise at all but the tenant was always ready and willing to pay the rent to the landlord if the landlord satisfied the tenant about his title to the property. Ahmad Raza Khan, the landlord arpeared as. a witness and Muhammad Farooq and Anisur-Rehman also appeared as witnesses on his behalf and Rajab Ali Hussain appeared as a sole witness on behalf of the tenant. By order dated 3-5-1977, the learned Rent Cont roller dismissed the ejectment application filed by the landlord holding that the tenant had not committed default and that the allegation about subletting had not been proved and insofar as the rent of the premises is concerned, it was determined at Rs. 16 per month. The landlord filed Rent Appeal No. 152 of 1977 and the learned IV Additional District Judge, Karachi, by his order dated 16-7-1978, partially allowed the appeal holding that the tenant had committed default in payment of rent and ordered ejectment of the tenant but in so far as the question of subletting and the rate of rent is concerned, the learned First Appellate Authority maintained the findings of the learned Rent Controller. Being aggrieved, the tenant has filed in this Court Second Appeal No. 281 of 1978 and the landlord has filed Second Appeal No. 333 of 1978. In the landlord's appeal the prayer is that the finding of the learned First Appellate Authority on the question of subletting and rate of rent be set aside. I have heard Mr. Wazir H. Rizvi, learned counsel for the tenant and Mr. A. Aziz M. Dastgir, learned counsel for the landlord.

2. It is an admitted position that section 30 notice was served upon the tenant on 30-11-1965 and the tenant gave reply on 2-5-1966, that is, after more than 5 months of receipt of the said notice. In this notice under section 30 the number and location of the property is mentioned and the numbers of the PTO and PTD and their respective dates of issuance are also mentioned. In para. 3 of the said notice it is mentioned that as per the latest assessment of KMC, the tenant was liable to pay rent at the rate of Rs. 122.50 per month. By the said notice, the tenant was required to pay Rs. 7,140 being the arrears of rent at the rate of Rs. 122.50 per month w. e. f. 12-7-1965 till 11-11-1965 within three months from the receipt of the notice. On the question of default the following contentions were raised by Mr. Wazir H. Rizvi, learned counsel for the tenant:- (a) By reply dated 2-5-1966 the tenant had asked for photostat copies of the P.T.O. and P.T.D. of the latest assessment so as to satisfy the tenant regarding the landlord's claim in respect of the property in question. It was contended that firstly there was no response from the landlord to the reply dated 2-5-1966 and secondly the copies of the P.T.O. and P.T.D. had not been supplied. (b) The tenant was under a bona fide impression that the title of the landlord was not clear in respect of the property in question and this bona fide impression was created on account of the following reasons (i) Notice under section 30 of the 1958 Act had been served after 5 years and 4 months of the transfer of the property. (ii) No reply had been given to the letter. dated 2-5-1966 of the tenant. (iii) The premises mentioned in the notice under section 30 were not the same as are in occupation of the tenant. (c) A much higher rent was being asked for than what was payable by the tenant to the Custodian as a recorded tenant and as such notice under section 30 was not a proper and legal notice under the law. In reply it was contended by Mr. A. Aziz M. Dastgir, learned counsel for the landlord that under the law it was not necessary to supply copies of P.T.O. and P.T.D. to the tenant and that no case in law had been made out by the tenant for not paying or tendering rent to the landlord. It was further contended that the rent asked for in the notice under section 30 was the rent to which the landlord was legally entitled and in any case the notice under section 30 did not suffer from any infirmity or illegality.

3. As observed carlier, the notice under section 30 had been served upon the tenant on 30-11-1965. It is an admitted position that within three months from the date of receipt of such notice, neither any rent was' paid nor was any rent tendered by the tenant to the landlord. In fact no; rent had been paid by the tenant to the landlord till the ejectment applica tion had been filed before the learned Rent Controller. Apparently therefore, the tenant had lost the protection under section 30 of the 1958 Act as a recorded tenant. In so far as non-supply of copies of P.T.O. and P.T.D. is concerned, it may be observed that if he wanted such copies, a request for the same should have been made immediately on receipt of such notice. No explanation has been forthcoming from the tenant why reply was given to the section 30 notice after expiry of more than 5 months. Then under the law, it is not necessary for the transferee of a property from the Settlement Department to supply copies of the P.T.O. or P.T.D. to the recorded tenant. In the section 30 notice, number of the property and its location was clearly given arid the respective numbers and dates of the P. T. O. and P. T. D. had also been mentioned, If there was any doubt, on the basis of the information given in the section 30 notice, the tenant could have approached the Settlement Department for seeking confirmation about the validity of the transfer of the property in question in favour of the landlord. In my view, the delay of more than 5 years of notice under section 30 to the tenant did not disentitle the landlord from issuing the notice and from initiating ejectment proceedings on the basis of default on the part of the tenant. In the facts and circumstances of the present case, by not giving any reply to the letter dated 2-5-1966 of the tenant, no further or additional rights had been conferred on the tenant. I also do not find any substance in the argument raised on behalf of the tenant that the property in occupation of the tenant is not the same as mentioned in the notice under section

30. In fact no such specific plea had been take in the written statement filed by the tenant before the learned Rent Controller. A contention had been raised on behalf of the tenant, as observed earlier, that in the notice under section 30 a much higher rent was asked for than that was legally payable by the tenant. In the instant case, the landlord had clearly mentioned in the section 30 notice that the rent that was being demanded, was based on the latest assessment of K. M. C. Even otherwise, if the rent that was being asked for was considered to be excessive or higher than what was, according to the tenant, lawfully due from or payable by him, the tenant was liable to pay or tender at least the rent that was, according to the tenant, payable by the tenant to the transferee. Admittedly no rent had been paid or tendered by the tenant to the landlord till the. filing of the ejectment application. Even the rent, which was payable according to the tenant, had not been tendered paid, In the circumstances, I am of the view that a case for default had bee made out and the learned First Appellate Authority had correctly reversed the finding of the Rent Controller and ordered ejectment of the tenant.

5. On the question of subletting, there is a concurrent finding of the learned Rent Controller and the learned First Appellate Authority and see no reason to interfere in such finding.

6. The only other point which requires consideration, is the rate of rent. According to the tenant, the Custodian rent _of the property in occupation of the tenant was Rs. 13-9 per month. The learned Rent Controller, after referring to certain documents and making certain calcula tions, fixed the rate of rent at Rs. 16 per month. The learned First Appellate Authority had confirmed the rate of rent fixed at Rs. 16 per month by the Rent Controller. According to section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, a transferee is entitled to charge a rent from the occupant on the basis of the latest assessment carried out by the municipality or local authority, as the case may be, for other properties in the locality generally. It was contended by the learned counsel for the tenant that no evidence has been brought on record to show what was the latest assessment of the municipality for other properties in the locality where the premises in question are situated. In my view. if evidence of the latest assessment of the municipality in respect of the property in question is produced before a Rent Controller, he is bound by such assessment in so far as the fixation of rent is concerned. If at all the assessment by the municipality in respect of the property in question is excessive as compared to other properties in the same locality, the proper forum for getting the assessment of the property in dispute corrected is the authority, which has made the assessment and not the rent control authorities. The rent control authorities cannot go behind the assessment of the municipality or the local authority, as the case may be, in respect of the properties to which provisions of section 30 of the 1958 Act apply. Exh. 1/13 is an extract from revision book for the year 1962-63 relating to assessment by K. M. C. of properties for city of Karachi and it gives the monthly assessment of the property in question. The gross monthly assessment of 2 godowns in occupation of the tenant is given in Exh. 1/13 as Rs. 96.25, whereas monthly assessment for one room in occupation of one Ismail Bhai is given as Rs.

26. The learned Rent Controller has made his own calculation on the basis of the gross monthly assessment of the entire property including the first floor, which is given as Rs.

168. In my view, it was not correct for the Rent Controller to have ignored the specific monthly assessment in Exh. 1/13 in respect of the I two rooms (godowns) in occupation of the tenant given as Rs. 96.25 and to have based the rate of rent on certain calculations, which are apparently made on the total gross monthly assessment of Rs. 168 for the entire building. In view of the specific monthly assessment of Rs. 96.25 for the permises in. occupation of the tenant. Ahmed Hussain & Co., the Rent Controller was required to access the same and make it the basis for fixation of the rent of the premises in question. On the basis of the documentary evidence on record, from the time the premised in question were transferred to the landlord till the notice under section 30 was given, the only assessment of Karachi Municipal Corporation in respect of the premises in occupation of the tenant is Rs. 96.25 per month specifically mentioned in Exh. 1/13. An attempt. was made by the learned counsel for the landlord to argue that in the amount of Rs. 96.25, a figure of Rs. 26 per month should also be added, which figure is also mentioned in Exh. 1/13. I have not been impressed by this argument for the reason that the figure of Rs. 26 is mentioned against a residential room in occupa tion of one Ismail Bhai. In view of the specific provisions of section 30 of the 1958 Act, the rate, of rent is fixed at Rs. 96.25 per month.

7. As a result Second Appeal No. 281 of 1978 filed by the tenant. Ahmad Hussain & Co., is dismissed. The tenant, is however, granted time till 31-10-1983 to vacate the premises. Second Appeal No. 333 of 1978 filed by the landlord, Ahmad Raza Khan, is partially accepted in as much as the rate of rent is fixed at Rs. 96.25 in respect of the premises in question. There will be no order as to costs in both the appeals. Appeal dismissed.