' MAULVI ANWAR-UL-HAQ. On 17-12-2002 the appellant application for ejectment of the respondent from a shop located in Rawalpindi Urban Area. It was stated in the application that the respondent has failed to pay rent with the statutory increase with effect from November, 1996. She had earlier filed an application for ejectment of the respondent on the same ground but it was observed by the learned Additional District Judge while dismissing her application that a notice of enhancement ought to have been served. A notice was accordingly served on 30-7-2002 under registered post but still the statutory increase has not been paid. The respondent in his written statement while admitting that the shop is on rent with him since July, 1973, the rent was Rs,650 per month at that time and while denying the receipt of the notice urged that he is depositing the rent in the accordance with law.
2. Learned trial Court proceeded to frame the following issues:---
(1) Whether the respondent has not enhanced the rent under section 5-A? OPA
(2) Whether the respondent is rent defaulter? OPA
(3) Whether the petitioner has no cause of action to bring this petition? OPA
(4) Relief.
3. Evidence of the parties was recorded. The application was dismissed by the learned Rent Controller vide order, dated 17-7-2004. A first appeal filed by the appellant was dismissed by the learned Additional District Judge, Rawalpindi, on 5-7-2005.
4. Learned counsel for the appellant contends that the statement of the appellant that she had served the notice was not challenged in the cross-examination and in any case, admittedly the first application filed on this ground was dismissed because of absence of a notice of demand. The precise contention is that the first application should be considered as a notice. According to the learned counsel, the Courts below have failed to apply their mind to the legal provisions and have consequently proceeded to hold that due rent has been paid or tendered by the respondent.
Learned counsel for the respondent, on the other hand, relies on the case reported as Syed Ilyas Ali Abbasi v. Mst. Allah Rakhi through Attorney 2001 SCM R 31 to urge that a demand for enhanced amount has to be specifically made. He insists that his client has proved by producing receipts that in fact he had paid the rent at enhanced rate vide Exh.R.4 to Exh.R.21.
5. I have gone through the records of the learned Rent Controller with the assistance of the learned counsel for the parties. I have already narrated above the material contents of the pleadings. It will be seen that there is no dispute that the shop was let out in the year, 1973 at the rate of Rs,650 per month as rent. Exh.R.2 is the judgment, dated 6-2-2001 in the ejectment application filed by the appellant against the respondent on 22-2-2000. It was complained by the landlady that the tenant has not paid rent with statutory increase with effect from November, 1996. Exh.R.3 is the judgment, dated 31-5-2002 passed in appeal filed by the appellant. It has been observed in para 7 that provisions of section 5-A of the Punjab Urban Rent Restriction Ordinance, 1979, did not envisage automatic increase in the rent at the rate of twenty five per cent and demand for such enhance was to be specifically made by the landlady. According to the learned Additional District Judge, this fact was lacking.
6. The proposition stated by the learned Additional District Judge is supported by the said case of Syed Ilyas Ali Abbasi being relied upon by the learned counsel for the petitioner. However, I may note here that the said case (Civil Appeal No,1580 of 1997) was decided by the Honourable Supreme Court on 21-10-1998. However, the Honourable Supreme Court decided Civil Petition No,1392-L of 1999 on 22-9-1999. This is Muhammad Irfan v. Muhammad Zahid Hussain Anjum 2000 SCM R 207 and it was concluded by their Lordships that service of notice under section 5-A of the said Ordinance by a landlord to a tenant for a statutory increase is not a condition precedent to invoke the jurisdiction of the Rent Controller.
7. This Court has held on several occasions that an application filed under the said Ordinance can itself be treated as a notice. The landlady had filed earlier application claiming payment of rent with statutory increase. However, she was A penalized by dismissing her application for not making a demand earlier than the filing of the said application but she could not again be penalized in the present ejectment petition as to my mind earlier application did constitute a valid demand for payment of rent with statutory increase.
8. Apart from the above legal position, I find that the appellant/landlady filed her examination-in- chief in the form of an affidavit, which is available at pages 17 and 18 of the trial Court's file. She has specifically stated that she had served a notice under registered A.D. On the tenant but despite the same, he has not paid the rent with statutory increase. The date of notice was stated to be 1-8- 2002. She was cross-examined at length, but not a single question was put to her to challenge the said statement made by her. This being so, it shall be deemed that the said statement was accepted by the tenant.
9. Having thus found that a demand was duly made by the landlady, I further find that section 5-A of the Punjab Urban Rent - Restriction Ordinance, 1959, itself lays down the manner in which the increase is to be effected and to be paid. According to the provision, the first increase as per subsection (1) is to accrue on 1-7-1989 in case of tenancy exceeding three years or more preceding the said date. I have already noted above, the admitted position that the tenancy commenced in the year 1973 and rate of rent was Rs,650 per month. The first increase accrued on 1-7-1989. The statutory increase would thus account as follows:-
(i) 1-7-1989 - Rs,812
(ii) 1-7-1992 - Rs,1015
(iii) 1-7-1995 - Rs,1268
(iv) 1-7-1998 - Rs,1585
(v) 1-7-2001 Rs,1981
(vi) 1-7-2004 - Rs,2476
10. Now going by the contents of the ejectment application, wherein default has been claimed from November, 1996, the rent payable from November, 1996 to 1-7-1998 was Rs,1268 per month and from July, 1998 to June, 2001, rent payable was Rs, 1585 per month and from July, 2001 to P June 2003, rent payable was Rs,1981 per month and thereafter till the institution of the application, it was payable at the rate of Rs,2476 per month. The receipts produced by the respondents and relied upon by the Courts below show, deposit of rent at the rate of 813 per month and that too with effect from February, 2003 onwards i.e. At a point of time after the institution of the ejectment petition.
This means that the learned Courts below have not examined the said receipts while holding that the respondent has not committed any default in payment of rent.
11. Having thus examined the record, I do find that the impugned orders passed by the Rent Controller and first Appellate Court are against law as well as facts. S.A.O. Is accordingly allowed, impugned orders are set aside, the ejectment application filed by the appellant is accepted, and an order is passed for the ejectment of the respondent from the building in question. He is directed to vacate the same and hand over its possession to the appellant on or before 30-6-2008. No order as to costs. Records be remitted back.