' The respondent is the transferee of the premises bearing No,G/3 situated on plot No,9/76 Outran Road, Karachi from the Settlement Department, of which the appellant is the tenant. The appellant is running a flour mill in the said premises and is in occupation from November, 1947. The respondent filed an ejectment application on the ground that the appellant is a defaulter and has failed to pay monthly rent from 1st July,1973 and that it has sublet a portion of the disputed premises. The respondent raised preliminary objection that as no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act has been served the application is not maintainable. It was further pleased that according to the latest assessment the monthly rent is Rs,45 and the rent paid by the appellant upto 31st July, 1978 will cover upto date rent and no default has been committed. The allegation regarding subletting was also denied. The issue regarding service of notice under section 30 was decided on 19th March,1979, and the finding was given in the affirmative holding that notice was served on the appellant in the year 1961. This finding has not been challenged by the appellant during the course of argument. As the ejectment has been granted on ground of default and not subletting the learned counsel for the appellant has addressed argument entirely on this issue. The main reason for holding, that the appellant is in default seems to be, as the learned Controller has also held that the rent was payable at Rs,70 P.M.
This finding of the learned Controller is based on the compromise between the parties which was filed on 30th March, 1966 in Rent Case No,147/64 (No,1850/63) in which a settlement was arrived at between the parties and the appellant had agreed to pay the rent in the following manner:-
(i) From 19th January, 1961 to 30th June,1963 at Rs,45.
(ii) From 1st July, 1963 to 31st March,1966 at Rs,60 P.M.
(iii) From 1st April, 1966 onwards at Rs,70 P.M.
' Relying on this compromise the Controller found that default has been committed because admittedly no rent was paid after July 1973. The appellant denied the default on the ground that it was liable to pay rent according to the latest assessment which was much less than the rent paid by it in terms of the aforestated compromise. Therefore, the rent paid upto July, 1977 exceeds the rent payable upto the filing of the case. The respondent by a notice, dated 6th February, 1961 (Exh.SA) had demanded rent Rs,45 P.M. Which the appellant was paying to the Settlement Department. Thereafter from Exh.6-B it seems that the assessment of the disputed property was increased to Rs,657 per annum i,e, Rs,56.25 P.M. The appellant has contended that from 19th January,1961 to 31st July,1977 inclusive of taxes it has paid a total sum of Rs, 9,452.07. According to the appellant the rent for this period at the rate of Rs, 45 P.M. Being the latest assessment, comes to Rs,9,450. By this calculation the appellant contends that it is not a defaulter. It would be advantageous to reproduce the appellant's statement which runs as follows:- "Rate of rent as per latest assessm ent after the transfer of property to the applicant and as per order of the Rent Controller, dated 7th September,1963 in Case No,1350/63. Arrears of Rent from 19th January,1961 to 31st July 1978 17 years and 10 days at Rs,45 =Rs,9,450 ' payment :Through the Nazir in case No,1850/63.{{TABLE TEXT}}
1. R/299 dated 4.9.1963.
2. R/733 dated 3.10.1963
3. R/1036 dated 16.10.1963
4. R/1952 dated 2.12.1963.
5. R/2906 dated 3.1.1964.
6. R/3149 dated 23.1.1964.
7. R/4239 dated 24.2.1964.
8. R/5205 dated 26.3.1964.
9. R/7597 dated 30.5.1964.
10. R/001459 dated 30.7.1964.
11. R/010184 dated 30.9.1964.
12. R/15269 dated 24.11.1964.
13. R/4062 dated 9.2.1965.
14. R/7649 dated 19.4.1965.
15. R/4469 dated 6.9.1965.
16. R/6542 dated 25.10.1965.
17. R/11732 dated 13.1.1966.
18. R/13969 dated 25.2.1966.
' In terms of the untenable compromise paid the difference of Rs,15 per month from 1.7.1963 to 31.3.1966 as per R.C.App; No,3006/73 and 3163/76.
From 1.4.1966 to 31.7.1977 at Rs,70 per month by cheque as per admission, To K.M.C. Taxes as per Challan dated 18.4.1973.Rs, 59.07 Rs, 495.00 Rs, 6090.00 Total Payment Rs, 9393.00 Total rent due. Total rent paid.
Rs,2.07 has been paid in excess and is adjustable. The above is subject to all just exceptions, errors and omissions. Total Payment Rs, 9452.07 Rs, 9450.00 Rs, 9452.07 Rs, 2.07 ' The contention of the appellant is that as the latest assessment was Rs,45 upto 30th June, 1968 and Rs, 56.25 from 1st July, 1968 the appellant was liable to pay at the said rate and the excess amount paid should be adjusted towards the rent upto the date of filing of ejectment application on 2nd July, 1977.
' Mr. Suleman Kassim the learned counsel for the appellant has contended that as the appellant enjoyed protection under section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act the rent could not be increased beyond the amount fixed by the latest assessment. On the other hand the learned counsel for the respondent Mr.Mustafa Lakhan4 contended that the appellant having entered into a settlement in the previous rent case and having agreed to pay Rs,70 P.M. Which it continued to pay for quite some time, cannot at this stage resile from that agreement. Secondly, as the appellant had committed default earlier in respect of which ejectment application was filed, it has lost the protection afforded under section 30 and the agreement is binding upon the parties. The admitted position is that the appellant is a statutory tenant and did enjoy the protection of section 30 in the year 1961. The next question arises whether the appellant has lost that protection. Mr.Mustafa Lakhani has contended that the appellant has committed default in payment of rent, therefore, the protection was lost. Under proviso (a) to section 30 a transferee is entitled to charge rent on the basis of the latest assessment carried out by the Municipal or local authority. Proviso (b) provides a further protection that the transferee shall not be entitled to eject the tenant from the house or shop for a period of.6 years from the date of notice of transfer which shall be given to the tenant within one month of such transfer and if no notice has been given then this I period shall be computed from the date of service of notice. The protection / of 6 years granted under proviso (b) is lost if the tenant does not pay rent within three months from the date of the receipt of notice or if the transferee has sublet or parted with the possession. If any of these contraventions are made then the protection afforded by proviso (b) is lost and the relationship of landlord and tenant is regulated in accordance -with law for the time being in force relating to such relationship. The learned counsel for the respondent contended that since the appellant had defaulted in payment of rent, the relationship will be regulated according to the ordinary law. In order to deprive the tenant from the protection afforded by Proviso (b) it is necessary to establish that within three months from the date of the receipt of notice of damand sent to him by the transferee the tenant has failed to pay the rent. The question arises whether the appellant has failed to pay the rent after the notice was served in the year 1961. There is no such evidence on the record. It was contended that the respondent had filed an ejectment case against the appellant, but beyond this there is nothing on the record to show that the appellant had admitted the default, nor there is any order of the Controller giving such a finding. The only fact on the record is a compromise application in which the rent was agreed to be paid as stated above.
From these facts it is not possible to conclude that the appellant had defaulted in payment of rent after the service of notice and upto 1967 and, therefore, the contention that due to default committed prior to filing rent Case No,147/64 it had lost the protection of section 30, cannot be upheld. In any event after expiry of six years from the service of notice and repeal of the Act the question of affording protection under section 30 does not arise.
' The next question which remains for consideration is whether the appellant defaulted in payment of rent. From the statement placed on record, it seems that after the compromise, dated 30th March, 1966 the rent was to be paid at the rate specified in the compromise application. Upto June 1963, rate of rent was Rs,45 P.M. From 1st July, 1963 to 31st March, 1966 it was Rs,60/- p.m. And from 1st April,1966 onwards it was Rs,70 P.M. The latest assessment according to the evidence on record prior to 1st July, 1968 was Rs,45 P.M. From 1st July, 1968 it was increased to 56.25 P.M. The contention of the appellant is that it was liable to pay only according to the latest assessment and the rent increased by compromise was not binding on the appellant. In this regard the learned counsel for the appellant has relied on Registrar Mirpur Khas v. Jabbar where the landlord had filed ejectment application on the ground of default in payment of rent at the agreed rate of Rs,100 P.M. It was pleaded by the tenant that the agreement to pay Rs,100 P.M. Was void and against public policy, as it was in excess of the latest assessment as contemplated by section 30. Late Waheeduddin Ahmed, J. Relying on Evan's case PLD 1964 SC 536 that in view of these observations the contention of the appellant's counsel that the agreement to pay rent at Rs,100 (Rupees one hundred) per month is not binding on the appellant is well-founded.'
' Therefore, any agreement between the parties to pay the rent which is in excess of the latest assessm ent will not be valid and binding. In the present case the parties had compromised whereby from 19th July, 1963 the appellant was to pay rent at a rate which was higher than the latest assessm ent. The appellant was therefore not liable to pay rent at Rs,70 P.M. It is now to be considered whether the appellant has committed default in payment of rent. The admitted position is that the appellant had paid rent upto 31st July, 1973. According to the appellant it was liable to pay rent at the rate of Rs,45 P.M. Upto 30th June, 1968 and from 1st July, 1978 at the rate of Rs,56.25. The appellant's witness Ismail Munshi further admitted that he paid the rent by cheque from 1968 to 1973 and after that no rent was paid to the respondent No,1 as her address mas not available with him. In the statement of account the appellant has mentioned the payment of Rs,6,090 from 1st April,1966 to 31st July, 1977 but the date for each payment has not been given. It includes the rent for the period August, 1973 to July, 1977 when no rent was paid and in fact it was deposited in court after the ejectment application had been filed and order for deposit of rent had been passed. It has, therefore, to be examined whether rent paid upto July 1973 was sufficient to cover the rent upto 31st July, 1977 at the rate fixed by the latest assessment. The learned counsel for the appellant has admitted the appellant was liable to pay rent Rs, 45 P.M. Upto 30th June, 1968 and from 1st July, 1968 it was to pay @ Rs,56.26 P.M. This position has been taken by the appellant in the written arguments submitted before the Controller. On this basis the rent paid upto 31st July 1973 does not cover the rent due upto 30th July, 1977. There is another flaw in the appellant's statement of amount. The rent for the entire period upto 1978 has been calculated at the rate of Rs,45 P.M. This is not correct as from 1st July, 1968 the appellant was liable to pay Rs,56.25 P.M. On appellant's own admission the default has been established. The appeal is, therefore, dismissed.
The appellant should hand over vacant possession of the disputed premises to the respondents within six months.