This is a First Rent Appeal filed by the appellant/tenant against the order dated 6-1-1980 of the Rent Controller, Rohri, allowing the ejectment application of the respondent/landlord and directing the appellant to hand over possession-, of the premises in question to the respondent.
2. Rent Application No. 5/78 was filed by the respondent against the appellant under section 13 of the 1959 Ordinance on 18-5-1978. In this application the respondent had shown himself as the owner and landlord of property bearing City Survey Nos. A-230/1 and A-230/2, situated at Rohri, which, according to the respondent, had been transferred to him by the Settlement Department through Permanent Transfer Deed, dated 21-5-1969. According to the Rent Application, the appellant was in possession of an area of 56 sq. Yards out of the said property of the respondent from a date prior to its transfer in the name of the transfer in the name of the respondent and "as such the opponent (the appellant) is deemed to be the tenant of the applicant (respondent) in respect of the said portion measuring 56 sq. Yards": Paras. 3 and 4 of the Rent Application may be reproduced here :- "(3) That the applicant on 15-1-1978 sent a notice by registered post A/D to the opponent calling upon him to pay the arrears of rent at the rate of Rs. 100, per month and vacate the said portion since the opponent owns his separate house. The said notice was served upon the opponent on 21- 1-1978 but the opponent neither paid the reasonable rent nor vacated the premises.
(4) That the opponent is not a protected tenant as the opponent has got his own property in the same vicinity and the portion of the applicant's property in possession of the opponent is in excess of his need. The applicant needs the said portion bona fide and in good faith for his personal use and for the use of his children."
3. A written statement was filed in the form of objections by the appellant on 20-6-1978 in which it was admitted that the respondent was the owner of the property in question but it was added that the appellant came to know about this fact for the first time when be received the notice dated 15- 1-1978. The appellant further stated in his written statement that after removal of debris and dust the appellant had constructed a cattle-pen over this area (which was being claimed by the respondent) after spending more than Rs. 5,000, over it, and that he had been running a cattle-pen in it for the last more than 20 years. It was further stated that it vas fraudulent on the part of the respondent to have disclosed his claims over that portion after a long lapse of more than 18 years.
In reply to para. 3 of the Rent Application the appellant admitted the receipt of the notice dated 15- 1-1978 but pleaded that he had sent a comprehensive reply. Here it would be proper to reproduce the notice dated 15-1-1978 of the respondent addressed `. To the appellant (Exh. D-7) and the reply dated 13-2-1979 of the appellant (Exh. 47).
Notice dated 15-1-1978 "Under instructions from my client Mr. Qamarul Hassan, son of Wafer Hussain of A-230/1-2, Rohri, I wish to address you as follows :-
(1) That my client is the transferee of property bearing C. S. No. A-239/1 and 230/2 situated at Rohri which property has been transferred to my client by the Deputy Settlement Commissioner, Sukkur vide permanent Transfer Deed No. 09271, dated 21-5-1969 and as such my client is deemed to be its owner and landlord.
(2) That you are in possession of an area of 56 sq. Yards out of these survey numbers since before the transfer of this property in the name of my client and as such you are deemed to be the tenant of my client and liable to pay arrears of rent to my client.
(3) That the reasonable and fair rent for the premises in your possession as is prevalent in the same locality for the similar premises comes to Rs. 100, per month and accordingly you are liable to ray arrears of rent at this rate with effect from 21-5-1969 uptodate.
(4) That you are, therefore, called upon to pay the arrears of rent at the said rate with effect from 21-5-1969 uptodate and continue paying future monthly rent regularly till you happen to remain in possession of the property. You are also called upon to hand over vacant possession of the said property to my client as my client needs the same bona fide and in good faith for his personal use since you also own your own property at Rohri Town. On your failure to comply within three months of the receipt of this notice my client will be constrained to take legal action against you for your eviction entirely at your risk as to costs and consequences which please note." .
Reply dated 13-2-1978 Dear Sir, In reply to your notice dated the 15th January, 1978 addressed to our abovesaid client through your Advocate Mr. Muhammad Aslam.
Under instructions from our abovesaid client, we have to address you as under :-
(1) That you may be owner of property bearing C. S. No. 231/1 & 2 situated in Ward 'A' Rohri, but our abovesaid client has no knowledge about its transfer to you by the Settlement Department.
(2) That our abovesaid client is in possession of property bearing C. S. Nos. 231-A & 232-A, as the same has been transferred to him by the Settlement Department. If any portion (measuring 56 sq.
Yards) from C. S. No. 230/1 & 2 Ward 'A' considering it to be the part and parcel of C. S. Nos. 231-A & 232-A has been in possession of our abovesaid client, be should have raised objection at the time when the whole area was in the shape of heaps of debris and dust and our abovesaid client was getting the site cleared after getting removed the debris and dust and getting constructed room for cattle-pen. It is in fact fraudulent on his part to disclose his claim over the portion of C. S. No. A- 230/1 & 2 at this late stage.
(3) That anyhow our abovesaid client under protest, is prepared to pay the arrears of rent and future monthly rent to you at the monthly rate fixed by Settlement Authorities for the said premises bearing C. S. No. A--230/1 & 2 before the transfer of the same to you. That total area of C. S. No. A- 230/1 & 2 is 136-4 yards and its rent per month, as fixed by the Settlement Authorities prior to its transfer to you was Rs. 2 as communicated by the Deputy Settlement Commissioner, Sukkur under his letter No. DSC/Sukkur/78-100, dated the 2nd February, 1978. Therefore, the monthly rent of the portion (56 yards as contended by you in your notice) would be less than Re.
1. How--ever our abovesaid client has sent you Rs. 37'50 paisas being the arrears of rent for 3 years from 16-1-1975 to 15-1-1978 the date of sending notice of demand of rent to him plus for 1 --months from 16-1-1978 to 2-2-1978 at the rate of Re. 1 p.m. By money order today and would continue to send the monthly rent regularly to you at the above rate.
(4) That our abovesaid client is statutory and protected tenant, hence he has the right and privilege to continue to remain in the premises for 6 years from the date of notice viz. 15-1-1978 and cannot be ejected from the same before expiry of 6 years. Besides you do not need the same for your personal and bona fide use.
(5) That despite the above facts if you unnecessarily drag our above client in any Court of law, it would be defended at your cost and risk."
4. On the pleadings of the parties, the Rent Controller framed the following issues :-
(1) Whether ;the appellant is a protected tenant? If so, what is its effect?
(2) Whether the appellant is a wilful defaulter? (3) What should be the rate of rent?
(4) Whether the respondent, in good faith and with bona fide intention requires the premises for his personal use?
(5) What should the order be?
5. The respondent examined himself (Exh. 24) and produced two other witnesses namely Allah Bux (Exh. 28) and Munawwar Ali (Exh. 31). After this the respondent closed his side. In the meantime the 1959 Rent Ordi--nance was repealed by the Sind Rented Premises Ordinance, 1979 and the cases pending before the Rent Controller were to be dealt with according to the provisions of 1979 Ordinance, and as such the appellant was required to file his affidavit and the affidavits of his witnesses. The appellant in the circumstances filed his personal affidavit (Exh. 46) and of his two other witnesses namely Sakhi Muhammad (Exh. 55) and Riaz Hussain (Exh. 56) and these persons submitted themselves for cross-examination on behalf of the respondent and they were cross- examined. Appellant then closed his evi--dence.
6. After the evidence was closed and after hearing the arguments of the counsel of the parties, the Rent Controller decided Issue No. 1 against the appellant holding that the appellant was not a protected tenant. On issue No. 2, the Rent Controller held the appellant to be a wilful defaulter. On Issue No. 3 the rate of rent was fixed by the Rent Controller at Rs. 50, per month. On Issue No. 4 the finding of the Rent Controller was against the respondent and he held that the respondent did not require the premises in question, for his personal use. In view of his finding on Issues Nos. 1, 2 and 3, the Rent Controller allowed the Rent Application and directed the appellant to hand over vacant possession of the premises to the respondent, by order dated 6-1-1980. Hence, this First Rent Appeal has been filed by the appellant.
7. I have heard Mr. Farman Ali, learned counsel for the appellant and Mr. Abdul Naeem, learned counsel for the respondent, at same length. Issue No. 4, as observed earlier, had been decided against the respondent. No cross-objections have been filed by the respondent. In any case no arguments were addressed by the learned counsel for the respondent on Issue No. 4. As regards issue No. 1, Mr. Farman Ali, learned counsel for the appellant, con--ceded that although the appellant was a statutory tenant, he did not have the protection of 6 years granted by section 30
(1) (b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as the appellant owned another property in the same urban area. In the circumstances, learned counsel for the appellant did not challenge the finding of the Rent Controller that the appellant was not a protected tenant. There remain Issues Nos. 2 and 3 only and as these two issues are inter- connected I will deal with them together.
8. The main question which arises for determination in this case is the rate of rent. If the rate of rent is Rs. 100, as claimed by the respondent or Rs. 50, as decided by the Rent Controller, obviously the appellant is a defaulter. On the other hand if the rent was payable by the appellant at the rate of Re. 1, per month, the appellant cannot be termed a defaulter as immediately on receipt of notice (Exh. 27) dated 15-1-1978 of the respondent, the appellant sent rent at the rate of Re. 1, per month for a period of last 3 years and after that also he sent money-orders till May, 1978 at the rate of Re. 1, but which were refused by the respondent. As observed earlier, the Rent Application was filed by the respondent on 18-5-1978. It has been admitted by the respondent in his cross examination that money-orders were sent by the appellant in respect at the rate of Re. 1, per month but these were refused by the respondent. On the question of the rate of rent, the respondent in his examination- in-chief has stated that the rate of rent in the locality would be Rs. 100, per month. Then there is the evidence of the two other witnesses on behalf of the respondent namely Allah Bux (Exh. 23) and Munawwar Ali (Exh. 31). No reliance can be placed on the evidence of these two witnesses as Allah Bux in his cross-examination states that he could not say as to what would he the monthly rent of a plot of 50 or 60. He had given the rent of the shop in the locality at Rs. 300, per month. He had also produced two documents (Exh. 29 and Exh. 30) which were original stamped receipts dated 30-10- 1978 and 30-11-1978 signed by Allah Bux himself to the effect that he had received from one Kishan Lai Rs. 300, as rent of a shop. These two receipts should have been in the possession of Kishan Lai. It has been explained that these two receipts issued by Allah Bux remained with Allah Bux to be conveniently produced in evidence through Allah Bux on behalf of the respondent, and were not delivered to Kishan. Explanation is not satisfactory. In any case, as already observed, on a question in cross--examination, he stated that he would not know what would be the monthly rent of a plot of 50 or 60 square yards. The other witness Munawwar Ali (Exb. 31) had stated that the normal rate of rent prevalent in the locality for plot in dispute would be Rs. 100, per month. In cross-examination, however, he stated that he did not know what was the area of plot in question and further he admitted that for a period of 6 years he ran a shop given to him by the respondent and the respondent never took any rent from the witness. No reliance can be placed, as observed earlier, on his evidence also.
9. Mr. Abdul Naeem, learned counsel for the respondent, however, has mainly relied upon the cross-examination of the appellant himself. I may resproduce the passage from the cross- examination of the appellant on which the respondent's case was built up :- "I was not given the cattle-pen on rent at the rate of Re. 1, to anybody. The proper rate of rent would be Rs. 50, or Rs.
60. I do not know if any plot of 56 yards is on rent with anybody at the rate of Re. 1 per month." ' According to learned counsel for the respondent, that this was an admission on the part of the appellant that the proper rate of rent of the cattle-pen in question would be Rs. 50 or Rs.
60, per month and that the appellant had himself admitted that he would not give the cattle-pen on rent at the rate of Re.
1. Learned counsel for the respondent contended that these lines amounted not only to an agreement to pay rent at the rate of Rs. 50 or 60, per month but also that this determined the fair or proper rent of the premises and as rent had not been tendered or paid at the rate of Rs. 50 or 60, per month, the appellant was a defaulter. It was further contended by learned counsel for the respondent that as the appellant was not a protected tenant, no protection was available to him under section 30 of the 1958 Act and the question of the quantum of rent was to be determined either under the repealed 1959 Rent Ordinance or under the Sind Rented Premises Ordinance, 1979.
10. There can be two types of tenancies under the aforesaid two Rent Ordinances read with section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and these are contractual tenancies and statutory' tenancies. The present is not a case of a contractual tenancy and Mr. Abdul Naeem bad also submitted that the appellant had become a tenant of the respondent by operation of law with effect from 21-5-1969, the date of the Permanent Transfer Deed issued to the respondent by the Settlement Depart--ment. If, as has been admitted by learned counsel for the respondent, the tenancy of the appellant is not a contractual tenancy, the rate of rent can also not be an agreed rent. The question, therefore, that arises for deter--mination is that what is the rent payable by the appellant to the respondent under the law in respect of this tenancy which came into existence by operation of law and in respect of which the appellant is not protected by section 30 of the 1958 Act. According to Mr. Abdul Naeem, learned counsel for the respondent, the rent in such cases would be the rent prevailing in the locality for similar properties.
I find it difficult to accept this contention. In my view, even if a tenant is not a protected tenant under section 30 of the 1958 Act, on account of the fact that he owns another property in the same urban area, the rent which the landlord would be entitled to charge from such a statutory tenant would be rent in accordance with section 30 (1) (a) of the 1958 Act and. Which is on the basis of the latest assessm ent carried out by the municipality or local authority for other properties in the locality generally. There is no room for any doubt in respect of a statutory tenant who has been in possession since prior to 20-12-1958. If such a tenant owns another property in any urban area within the same town or city, he will not have the protection of six years extended by section 30 (1)
(b), but his land--lord would not be able to charge rent in excess of what could be charged under section 30 (1) (a). This is clear from section 30 (3) of the 1958 Act as protection is lost only in respect of the valuable rights granted by sec--tion 30 (1) (b) but section 30 (3) does not affect section 30
(1) (a). In the written statement of the appellant .(Exh. 12) which is dated 20-6-1978, the appellant bad taken the position that he was in possession of the disputed property for over 20 years which would be from a date prior to 20-12-1958. Appellants' evidence is also to that effect. The respondent in his evidence has stated that the appellant was in possession since 1963. In my view, even if the tenant, who is accepted as a statutory tenant and who is not a con--tractual tenant, has been in possession since a date after 20-12-1958, his landlord, a transferee from settlement department, will be entitled to charge rent on the basis of the latest municipal assessment and in case such aseess--ment is not communicated to the statutory tenant, the tenant will not be a defaulter if he pays or tender the custodian rent.
11. In the present case neither in the evidence of the parties nor in any exhibit is there any mention about the assessm ent by the municipality or the local authority. The evidence that has been led, as referred to earlier, on behalf of the respondent has been that in the locality the general rent is about Rs. 100, per month but no evidence has been led as to what was the assess--ment of rent by the municipality or local authority in the locality. On a question from me, learned counsel for the respondent admitted that there is nothing on record to show what was the rent assessed by the municipality or any local authority in respect of the area in question. Learned counsel for the respondent, however, had stated that there was no municipality in Rohri area. I do not find any evidence to that effect on the record. In any case if there was no municipality in Rohri there would be a local authority and in the absence of any evidence respecting rent in the locality assessed by the municipality or any local authority, in my view it is not lawful for the land--lord to ask for any rent on the basis of what the landlord considers to be the proper or fair rent of the premises in question. On the other hand appellant has produced Exh. 50 which is a letter dated 2-2-1978 of the Deputy Settle--ment Commissioner, Sukkur, addressed to the Advocate of the appellant and which gives the assessed rent of the entire property of the respondent as Rs. 2, per month according to the record of the Custodian Department. The total area of the property transferred by the Settlement Department to the respon--dent is 136 sq. Yards out of which the area in occupation of the appellant is 56 fq. Yards. If the custodian rent of the entire area was Rs. 2, the custodian rent in respect of 56 sq. Yards in occupation of the appellant would be less than Re. 1, per month. I may in this connection also refer to the order dated 30-I1-1978 of the Rent Controller, which is the tentative rent order in which he has referred to this certificate of the Settlement Department (Exh. 50) regarding the Custodian rent of Rs. 2, per month and on the basis of this, he fixed the tentative rent at Re. 1, per month in respect of the tene--ment of the appellant and directed the appellant to pay arrears of rent and future rent at the rate of Re. 1, per month.
12. In my view, in the absence of the production of the assessment by the municipality or local authority in respect of the locality by the transferee---landlord, in respect of such a statutory tenancy, the statutory tenant is liable to pay rent at the rate fixed by the Custodian which in this case is not more than Re, 1, per month. I am further of the opinion that in this case the respondent landlord was not entitled to ask for rent at more than Re. 1, per month unless he was able to base his demand on the assessm ent by the municipality or local authority of the area. The evidence of the respondent that the prevalent rent in the area was Rs.
100. Per month or the statement by the appellant in his cross-examination that the proper rent of such a premises would be Rs. 50 or 60, per month is of no consequence. The Rent Controller has fixed the rent at Rs. 50, per month on the basis of this statement in the cross-examination of the appellant and in my view this fixation of rent of Rs. 50, per month for such a statutory tenancy, in these circumstances, was not in accordance with law. Such rent of Rs. 50, per month could alsq not be fixed under any provision of the repealed 1959 Ordinance or the 1979 Ordinance.
13. In view of the above discussion I find that the appellant was only liable to pay rent at the rate of Re. 1, per month in the circumstances. The evidence on record shows that rent was tendered by the appellant at the rate of Re. 1, per month and he bad also sent further money orders till may, 1978 at the rate of Re. 1, per month which had been refused by the respondent. On 18-5-1978 when the rent application was filed by the respondent for ejectment of the appellant, there was no default on the part of the appellant. The appellant cannot be held to be a defaulter.
14. As a result this appeal is allowed and the order dated 6-1-1980 of the Rent Controller, Rohri, in Rent Application No. 5/78 is set aside and the Rent Application No. 5/78 filed by the respondent against the appellant is dismissed. There will be no order as to costs.