' The appellant has been in occupation of the tenement in appeal. He was a recorded tenant of the Custodian and was paying monthly rent of Rs, 13.50 to the Custodian. The property was transferred to the respondent by the Settlement Departments and a P. T.
0. Dated 15th October, 1960 was issued in favour of the respondent. A notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, dated 1st April, 1964, was served by the respondent upon the appellant. With this notice (Exh. 2) dated 1st April, 1964 the respondent enclosed a copy of the P. T.
0. Paragraphs (2) and (3) of the notice read as follows :- "(2) That you are liable to pay rent to my client according to the latest assessment of the local authority. The Karachi Municipal Corporation had fixed the assessment of the said property at Rs, 41 per month w. e. f. 15th October, 1960 (the date of transfer). The Taxation Department had fixed the assessm ent at Rs, 45 per month w. e. f. 1st July, 1963. Copies of assessment made by both the authorities are enclosed.
(3) That my client is entitled to recover from you the arrears of rent at Rs, 41 per month w. e. f. 15th October, [960 upto 30th June, 1963 according to the assessment fixed by the K. M. C. And w. e. f. 1st July, 1963 upto 31st March, 1964 at the rate of Rs, 45 per month as assessed by the Taxation authorities. The rent upto 31st March, 1964 amounts to Rs, 1,737-8-0, which you are liable to pay to my client immediately."
' The appellant took the position that the respondent was not entitled to claim rent at the rate of Rs, 41 or at Rs, 45 per month. By the letter dated 5th May, 1964 addressed to the respondent's Advocate, the appellant forwarded a cheque for Rs, 535.50 being the rent for 31k months i. e. From 15th October, 1960 to 30th June, 1963 at the rate of Rs, 17 per month, which according to the appellant was the K. M. C. Assessme nt. Photostat copy of K. M. C. Assessment was also enclosed with the said letter. The last two paragraphs of the letter dated 5th May, 1964 of the appellant are as follows :- "In the meantime I shall continue paying rent at present @ Rs, 17 p.m. And shall clear and settle the accounts with your client as earliest as possible.
' Kindly convey the same to your client, he should only encash the enclosed cheque if the rent of house in question is acceptable to him @ Rs, 17 p.m. From 15th October, 1960 to 30th June, 1963".
' The cheque for Rs, 535.50 of the appellant drawn on Muslim Commercial Bank Limited, New Challi Branch, Karachi, was presented for encashment by the respondent through his bankers, National Bank of Pakistan, but the cheque was dishonoured with the endorsement of Muslim Commercial Bank Limited as "refer to drawer".
' The dishonour of the cheque is admitted. The Rent Application No, 246 of 1965 for ejectment of the appellant was filed by the respondent before the Rent Controller, Karachi, on 16th January, 1965 on the ground of default and on the ground that the premises were required for bona fide personal use by the respondent. In February, 1965, a money order (Exh. 6) was sent on account of the rent by the appellant to the respondent but the same was refused by the respondent. The Rent Controller, by his order dated 29th January, 1966 allowed the rent application on the ground of default and ordered ejectment of the appellant. The ejectment application was granted on the ground of default by the Rent Controller on the basis that the appellant was liable to pay Rs, 45 per month as rent which he did not pay. On the question of personal bona fide use the Rent Controller came to the conclusion that no evidence had been adduced by the respondent and issue in respect of this ground was decided against the respondent/landlord. The appellant filed a 1st Appeal No, 115 of 1966 which was dismissed by the 1st Appellate Authority by order dated 24th February, 1966. The appellant then filed Hnd Appeal No, 55 of 1966 in the High Court, which was allowed by judgment dated 21st August, 1968 and the case was remanded to the Rent Controller. On the second round of litigation, notice on Court motion was served on the appellant about 1k years after the remand of the case to the Rent Controller. On 16th July, 1970, the case was adjourned at the request on behalf of the appellant. Similarly, the case was adjourned on 29th August, 1970 and 3rd October, 1970 at the request of the appellant. Thereafter the case was adjourned on 7th November, 1970, 9th January, 1971 and 11th March, 1971 by consent of the parties. On 1st May, 1971 the case was adjourned at a request on behalf of the appellant. On 3rd July, 1971 when the case came up before the Rent Controller, an application was made on behalf of the appellant that he had been detained in East Pakistan, but the application was rejected by the Rent Controller. The case has been remanded by the High Court to the Rent Controller by Judgment dated 21st August, 1968 in IInd Appeal No, 55 of 1966 for recording evidence of latest assessment of other properties in the locality. On a question from the Court, learned counsel for the appellant, stated that if adequate opportunity bad been granted to the appellant, a representative/employee of the Excise Department would have been examined so as to place on record the latest assessment of other properties in the locality. The Rent Controller by his order dated 31st July, 1976 allowed the ejectment application and granted ejectment of the appellant. The Rent Controller in his order dated 31st July, 1976 observed that the cheque sent by the appellant to the respondent was dishonoured and the money order sent at the rate of Rs, 17 after the filing of the ejectment application had been refused. The rent Controller came to the conclusion that the respondent was entitled to the rent at the rate of Rs, 45 per month and there was no evidence that the appellant was willing to pay rent to the respondent at that rate and therefore, the appellant had committed default in payment of rent to the respondent. Against the ejectment order, the appellant filed Rent Appeal No, 351 of 1976, which came to be dismissed by Judgment dated 29th May, 1979 of the learned IInd Additional District Judge, Karachi. The 1st Appellate Authority observed that the record revealed that the appellant made no efforts whatsoever to adduce any evidence after the case was remanded by the High Court and that the record further revealed that the appellant and/ or his counsel moved numerous applications for adjournment of the case on one pretext or the other and the proceedings were protracted for over three years. According the 1st Appellate Authority, in these circumstances, it was not open to the appellant to take the plea that he had not been given a reasonable opportunity to adduce evidence. The 1st Appellate Authority came to the conclusion that the default had been established and the appellant even failed to pay/tender rent, which, according to his own version, was the legal rent, as the cheque issued by him had been dishonoured .And the money order was sent to the respondent after the ejectment application had been filed. This second appeal has been filed by the appellant/tenant challenging the order dated 31st July, 1976 of the Rent Controller ordering ejectment of the appellant and the order dated 29th May, 1979 of the learned IInd Additional District Judge, Karachi, dismissing appellant's Ist Appeal No, 351 of 1976 on 29th May, 1979.
2. I have heard at length Mr. Abdul Latif Shakoor, learned counsel for the appellant and Mr. Zafar Alam Khan, learned counsel for the respondent. The arguments were advanced by the learned counsel for the appellant that the Excise and Taxation Authority was not a local authority and that the respondent was not entitled to claim rent at rate higher than Rs, 17 per month, which was the original assessm ent according to the K. M. C. And that the demand of the respondent of rent at the rate of Rs, 41 and Rs, 45 per month was illegal. It was contended that the notice under section 30 was itself illegal inasmuch as the rent that was demanded was higher than Rs, 17 per month. It was further contended that in any case the appellant had tendered rent at the rate of Rs, 17 per month firstly through a cheque and when the appellant came to know that the cheque had been dishonoured the appellant sent the rent at the rate of Rs, 17 per month through money order in February, 1965 but the same was refused unjustifiably by the respondent. As observed earlier, the arguments were addressed on the question whether the Excise and Taxation Authority is or is not a local authority and whether the notice under section 30 of the D. P. Act, 1958, was invalid on account of the respondent demanding rent at the rate of Rs, 41 per month or Rs, 45 per month instead of Rs, 17 per month. On the question of validity of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, learned counsel for the appellant, relied upon PLD 1967 Pesh. 96 ; PLD 1965 Lah. 282 and PLD 1982 Lab.
105. However, Mr. Zafar Alam Khan, learned counsel for the respondent, referred to a D. B. Decision of the Lahore High Court reported in PLD 1967 Lah. 29 and a recent Judgment of Mr. Justice Naimuddin in the case of. Abdul Jabbar v. Nafeesa Khatoon . In this judgment Mr. Justice Naimuddin has reviewed the entire case-law and has held that a notice under section 30 of the D.
P. Act, 1958, does not become illegal merely on the ground that it contains a demand for rent in excess of what the tenant is liable to pay under the D. P. Act, 1958 and the demand beyond the scope of section 30 of the Act need not be met by the tenant but it cannot absolve the tenant from payment of rent for which he is liable under the Act. I am in respectful agreement with the view of Mr. Justice Naimuddin on this point. Even if it is assumed, in the instant case, that the appellant was liable to pay rent only at the rate of Rs, 17 per month or at the rate of Rs, 13.50, the Custodian rent, the fact that in the notice under section 30 of the 1958 Act, the respondent demanded a higher rent, did not absolve the appellant of his liability under the law to pay or tender rent of Rs, 17 or Rs, 13.50 per month. It is an admitted position on record that a cheque had been sent by the tenant on account of the rent at the rate of Rs, 17 per month but the said cheque had been dishonoured and that a money order sent in February, 1965 was refused by the respondent. When the money order had been sent, the rent application had already been filed. Sending a cheque on account of rent which cheque is dishonoured by the bankers of a tenant, cannot be treated as tender of rent under the law. In the circumstances, it cannot be said that the rent had been tendered within the period1 provided by the 1958 Act, nor has it been established in evidence on record that the appellant was ready and willing to pay the rent even at the rate of Rs, 17 per month. In the circumstances, the 1st Appellate Authority came to the correct conclusion that the appellant had defaulted even in the payment of rent according to the rate at which the rent was payable as per the appellant's own version 1. e. Rs, 17 per month. It is, therefore, not necessary to decide the question raised by the learned counsel for the appellant about the Excise and Taxation Authority not being a local authority.
3. As default in the payment of rent has been established on the basis of evidence on record, the judgment dated 29th May, 1979 of the learned II Additional District Judge, dismissing the 1st Appeal No, 351 of 1976, does not call for any interference. The present IInd Appeal No, 267 of 19 i9 is accordingly dismissed but no order as to costs. The appellant is, however, granted time till 30th April, 1983 to vacate the premises. 1982 CLC 447