' This is an appeal against the order dated 30th August, 1980 passed by the learned 5th Rent Controller, Karachi, in rent case No, 3480/1976 ordering ejectment of the appellant on the ground of default.
1. (a) The relevant facts leading to the filing of the above appeal are that the respondent filed the aforesaid rent case for ejectment on two grounds namely, (1) default for the period commencing from August, 1974 upto the date of filing of the rent case and (2) unauthorised conversion of residential premises into commercial use. The above case was resisted by the present appellant.
On the basis of the pleadings of the parties the learned Rent Controller framed the following four issues :-
(1) What is the rate of rent of the premises in occupation of the opponent ?
(2) Whether the opponent has committed wilful default in the payment of the rent as alleged in the application ?
(3) Whether the opponent converted the premises from the residential to commercial ? If so, its effect ?
(4) What should the order be ?
' In support of the rent application the respondent examined himself and one witness Fasahat Ali, whereas the appellant examined himself and another tenant of the same building Mr. Mohibullah Shah. However, the learned Rent Controller by his order under appeal ordered ejectment of the appellant. The appellant being aggrieved by the above order has .Filed the present appeal.
2. In support of the above appeal Mr. Faizuddin, learned counsel for the appellant has made the following submissions :-
(1) That in fact there was no default as the respondent even after having received the rent has not issued any rent receipt.
(2) That in fact the respondent demanded the rent at the rate of Rs, 200 per month, which was not the agreed rent.
(3) That in view of the passing of the tentative rent order dated 20th July, 1977 in which the appellant was ordered to deposit the rent for the period commencing from November, 1976 the default B for the period prior to November, 1976 could not have been pressed into service by the respondent.
3. On the other hand Mr. S. S. Hamid, learned counsel for the respondent has urged the following points :
(1) That the finding of the learned Rent Controller on the question of default is supported by the evidence and that even if it is to be held that the respondent demanded illegally increased rent the appellant was not absolved from tendering the alleged agreed rent ; and
(2) That the tentative rent order not being a final order cannot be pressed into service for determining the default pleaded in the rent case.
4. With reference to the first contention of Mr. Faizuddin, learned counsel for the appellant, that in fact the appellant had paid the rent and that the respondent had not issued any rent receipt, it may be observed that the plea of the appellant that the respondent had never issued any rent receipt, was falsified by the counterfoil of rent receipt (Exh. 2) and also by his own witness Mohibullah Shah Advocate. Exh. 2 indicates that the rent for the month of July, 1974 at Rs, 150 was paid, that above counterfoil produced by the respondent contained the signature of the appellant.
A comparison of the signature on the above exhibit with the signature of the appellant on his written statement indicates that the above signatures are of the same person. Furthermore, as rightly observed by the Rent Controller that in the cross-examination of the respondent it was not suggested that he had produced the above counterfoil with forged signature of the appellant. The appellant's above witness Mohibullah Shah in his cross-examination admitted the factum that the respondent had issued rent receipts but qualified his above admission by stating that the rent receipts were issued by the respondent irregularly. In any case the plea of the appellant that the respondent had never issued any rent receipt stands belied by the above evidence in addition to the respondent's statement on oath.
5. As regards the second contention of the learned counsel for the appellant that the respondent was illegally demanding rent at the rate of Rs, 200 per month, it may be observed that the respondent in his rent application had averred that he was entitled to recover rent at the rate of Rs, 200 p.m. The learned Rent Controller on the basis of the evidence on record including the above counterfoil (Exh. 2) in respect of the month of July, 1974 concluded that the rent was Rs, 150 and not Rs, 200 as was demanded by the respondent. However, the learned counsel for the respondent has contended that the above counterfoil Exh. 2 contains, inter alia, the word{{URDU TEXT}} which indicates that Rs, 150 were part payment towards the rent for the month of July. This contention of the learned counsel for the respondent does not stand to reason as the above counterfoil does not indicate any amount as the balance payable by the appellant. It seems that the respondent might have been demanding rent at that rate of Rs, 200 per month but from the evidence on record in my view it has been rightly concluded by the learned Rent Controller that the rent was Rs, 150 and not Rs, 200 p.m. Be that as it may, the question which requires consideration is, as to whether the appellant was absolved from tendering the agreed rent because the respondent had illegally demanded rent at the rate of Rs, 200 Mr. S. S. Hamid has referred to the case of Tahir A. Khairullah v.
Mst. Zaibunnissa (1) and the case of Haji Ashrafuddin v. Sabir Hussain and another (2). In the first case Qadeeruddin Ahmed, J. (as he then was held that the demand of excessive rent made by the landlord does not absolve the tenant's liability to pay or deposit any rent. Whereas in the aforesaid second case the Supreme Court while declining to grant leave to appeal observed that liability to pay or tender rent regularly lies with the D tenant irrespective of the fact that the landlord demanded higher rent. In view, of the above cases, to which I am in respectful agreement, the above contention of Mr. Faizuddin fails.
6. Reverting to the last contention that the learned Rent Controller in his tentative rent order dated 20th July, 1977 had ordered the depositing of rent for the period commencing from November, 1976 and, therefore, the respondent could not have pressed for the default for a period prior to November, 1976 it may be observed that the above tentative rent order was not a final order and, therefore, the order depositing of rent from November, 1976 cannot be construed as a finding of the Rent Controller on the question of default at the regular hearing of the case. However, it was urged by Mr. Faizuddin that since the respondent had not assailed the above tentative rent order, it should be presumed that he accepted the finality of the above order. In my view the above contention is also devoid of any force and as it is by now a settled law that no appeal lies against a tentative rent order. As a matter of fact a tentative rent order is to be ignored for the purpose of adjudication upon the question bf default pleaded in the rent application.
7. For the aforesaid reasons I do not find any merit in the above appeal and, therefore, the finding of the learned Rent Controller on the question of default is sustained and the appeal is dismissed with no order to costs. However, the appellant is granted four months' time from today to hand over the vacant possession of the tenement to the respondent on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's order, failing which the respondent shall be at liberty to file an execution application before the expiry of the above period of 4 months.
Furthermore, in case the appellant fails to hand over the vacant possession of the tenement on the expiry of 4 months
(1) PLD 1968 Kar. 182 (2) 1973 SCM R 309 period, the Rent Controller shall issue writ of ejectment without any notice to the appellant.