1. ' This appeal arises out of the order dated 19-11-1981 of the Xth Senior Civil Judge and Rent Controller whereby the ejectment application was allowed and the appellant was directed to vacate the premises in dispute within two months of the order.
2. ' The brief facts of the case are that the respondent is the owner/landlord of the premises N:G-2, G- 4 of property bearing No,5/84-85 situated at Khajoor Bazar, Juna Market, Karachi by virtue o: registered sale-deed executed by the previous owner/transferee. The appellant was shown as tenant in record of the Settlement Department therefore, he was given notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958. The appellant was called upon to pay the arrears of rent and the monthly future rent at the rate of Rs,82.50. The respondent filed Rent Case No,844 of 1970 on the ground of wilful default in the payment of rent. The appellant filed the written statement in which, he denied the version put forward by the respondent. It was averred that the application is not maintainable as there is no relationship of landlord and tenant between the parties and no notice under section 30 of the repealed Act was served upon him. It was further averred that the disputed property is an evacuee trust property and he has been paying rent to the evacuee Trust Board.
3. ' The learned trial Court framed preliminary issues on 8-9-1976. The preliminary issues were decided in favour of the respondent. On 19-5-1977, the tentative rent order was passed whereby the appellant was directed to deposit the arrears of rent amounting to Rs,5,000 before 15th July, 1977 and to keep on depositing monthly future rent at the rate of Rs,82.50. The learned Rent Controller framed the following issues:-
(1) Whether the opponent has committed default in the payment of rent?
(2) What should the order be?
4. ' The learned Rent Controller on the basis of the evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided Issue No, 1 in the affirmative and allowed the rent application on the ground of 'default, vide order, dated 19-11- 1981.
5. ' The appellant being aggrieved by order dated 19-11-1981, of the learned Rent Controller has preferred his First Appeal, on the grounds mentioned in the memo of Appeal.
6. ' Mr.Hussain Adil Khatri the learned counsel for the appellant has contended that the learned Rent Controller has misread the evidence.
7. ' On the other hand Mr.Hafiz Abdul Baqi has contended that the learned Rent Controller has not misread the evidence and the order of the learned Rent Controller is in accordance with law.
8. ' The learned counsel for the appellant has invited my attention to Notification No,1(12) 63, dated 15- 7-1963 issued by the Secretary, Divisional Evacuee Trust Committee, Karachi whereby the disputed property was notified as trust property. The disputed property appears at serial number 92 of the said Notification. The appellant filed Inter Pleader Suit No, 1548 of 1971 under Order XXXV of Civil Procedure Code in the Court of 1st Senior Civil Judge, Karachi. The suit was decreed by Judgment and decree, dated 20-7-1974. In which title of the respondent was adjudicated and he was declared as owner and landlord of the property in question. The learned counsel for the appellant has submitted that the appellant paid rent for period 1-6-1967 to 30-6-1969 vide receipt dated 8- 5-1969 to the Evacuee Trust Property Board. He also submitted that the Evacuee Trust Property Board initiated proceedings in respect of the disputed property which was dismissed in 1975. His submission is that the title of the respondent was in cloud and it could not be certain as to who is the landlord and owner of the property in dispute. The learned counsel for the respondent does not dispute that the title of the respondent was in cloud. The respondent served notice under section 30 of the repealed Act and it is not clear from it when the disputed property was allotted to the predecessor-in interest of the respondent. It seems that the respondent purchased the disputed property vide sale-deed, dated 14-5-1969.
9. ' The above discussion would lead to the conclusion that the title of the property was adjudicated in Inter pleader Suit No,1548 of 1971. Even the proceedings which were initiated by the Evacuee Property Board were dismissed in 1975. Mr. Hussain Adil has invited my attention to the case of Muhammad Alimullah v. Ziaul Islam PLD 1973 Kar.
56. Mr. Dorab Patel, J. (as then was) held as follows:- "The discharge of this statutory obligation by the tenant is a condition of his protection and, he can invoke discretion under section 13 of the Ordinance only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations."
10. I am of the view that the Court below by misreading the evidence brought on record has arrived at incorrect conclusion which has resulted A in grave injustice.
11. ' Mr.Hussain Adil the learned counsel for the appellant has contended that the rent of the disputed premises is Rs,41.25 instead of Rs,82.50. I have perused Exhs. P/6 and P/7 certified copies of the P.T.I. at pages 83 and 85 of the lower Court file. The annual rental of three god owns is Rs,750 and the annual rent of one go down is Rs,240. The total rental assessment of four god owns comes to Rs,990. Thus the annual rental is Rs,41.25 per month. Accordingly I assess the rent of the disputed property as Rs,41.25 per month.
12. ' In the result the appeal is allowed and the order dated 19-11-1981 is set aside. The ejectment application is dismissed. In view of the nature of case and the point involved, however, I make no order as to costs.