' This is a second appeal against the order dated 2nd August, 1980 passed by the learned Ist Additional District Judge, Karachi, in Rent Appeal No,456/78, ordering of the ejectment of the appellant on the ground of default. The brief facts leading to the filing of the above appeal are that the shop in dispute was transferred by the Settlement Department to one Muhammad Idris on or about 5th April, 1968, he sold the above shop to the respondent on 22nd October, 1968 through a registered sale-deed. It seems that the respondent filed Rent Case No,1268/70 for ejectment on the ground of default and Rent Case No,1492/69 for ejectment on the ground of alleged unauthorised alterations and additions to the shop. The above two cases at the request of the learned counsel for the parties were amalgamated and were tried together, inasmuch as common issues were framed and common evidence was recorded. The respondent in support of the rent application produced a number of documents and also examined himself. Whereas the appellant examined himself and also produced a number of documents. The learned Rent Controller after hearing the parties by a common order dated 29th July, 1978 dismissed the above both applications. The respondent being aggrieved by the above order filed Rent Appeal No,456/78, which was allowed by the order under appeal in respect of defaultionly. The appellant being aggrieved by the above order has filed the present appeal.
2. (a) In support of the above appeal Mr.Nisar Ali, learned counsel for the appellant has urged as follows:-
(i) That as the latest assessm ent was Rs,15 per month, the liability of the appellant was to pay rent at the above rate of rent and not at the rate of Rs,50 P.M. As damanded by the respondent.
(ii) That in any case the liability of the appellant to pay rent at the rate of Rs,50 can be prospective after the service of the notice dated 25th March,1970 and not retrospective and as the rent case was filed on 3rd July,1970, there was default for a few days only if notice period 90 days is excluded from the service of the above notice dated 25th March,1970.
(iii) The revisional order dated 13th November, 1969 was without notice and in fact it was against a dead person and, therefore, it was without jurisdiction.
(iv) That the respondent should have been filed two separate appeals against the order of the learned Rent Controller as the order was in respect of two cases, and, therefore, the above appeal was defective.
(b) Mr.Muhammad Ali Jan, learned counsel for the respondent has submitted as under:--
(i) That the revisional order was passed after due notice to the recorded tenant and that no plea was raised before the Rent Controller in the written statement that the order was bad because it was passed against the dead person or without notice.
(ii) That since the revisional order reverts back to the original order. Dated 30th January.
1968. The respondent was entitled to claim rent on the basis of the latest assessment for the period commencing from October 1968.
(iii) That since the appellant had failed to pay rent after the service of the notice, dated 25th March,1970 within a period of 90 days, there was default on the part of the appellant.
3. Adverting to the question of legality of the revisional order, dated 13th November, 1969, it may be observed that Mr. Nisar Ali has contended that the appellant's father had expired by the time of filing of the revision application by the respondent and that no notice was served even on the appellant. It may be observed that the appellant had not raised any such plea in the written statement. However, in his cross-examination, he has stated that the revisional order was passed without notice to him. He has not stated that his father had expired by the time of the passing of the revisional order. It may be pertinent to state that prior to the service of the notice, dated 25th March,1970, the respondent had served a number of other notices, in which he had demanded rent at the rate of Rs,60 per month. However, in the above notices dated 25th March, 1970 Exh.2 in para. 5 the respondent had stated that according to the latest assessment the rent was Rs,50 per month, and, therefore, the respondent was liable to pay at the above rate. After the receipt of the above notice, the appellant did not either ask for the copy of the above alleged latest assessment order from the respondent nor made any inquiry from the Excise and Taxation Department in order to ascertain the factual position. In the cross-examination no question was put to the respondent as to the latest assessm ent. The appellant in his examination-in-chief has deposed that there was no latest assessm ent under which the respondent could demand rent at the rate of Rs,50 per month.
The respondent in order to belie the appellant's above assertion in the cross-examination confronted the appellant with a certified copy of the revisional order which was exhibited as Exh.O/23.
Mr. Nisar Ali has referred to the case of Messrs Caltex Oil (Pakistan) Ltd. v. Province of Sind and 6 others PLD 1978 Kar.958, in which a Division Bench of this Court held that an order passed in revision without notice to the owner of the property was without jurisdiction.
' There cannot be any cavil to the above proposition of law. However, the point for consideration is, whether the Rent Controller could go into the legality of the assessment order. Mr. Muhammad Ali Jan has referred to the case of Shaikh Fazal Elahi v. Muhammad Saddiq and 7 others PLD 1980 Lah.489, in which a learned Single Judge of the Lahore High Court held that a Rent Controller while deciding a rent application is not competent to go behind an order of the Assessing Authority.
Since the jurisdiction of the Rent Controller is limited, and is confined to what has been provided in the Rent Restriction Ordinance, in my view, he cannot decide the question, whether as assessment order is illegal. It may also be observed that there is presumption of regularity to an order or an official act. It may again be observed that the appellant was informed by the respondent on 25th March,1970 that on the basis of the latest assessment, he was entitled to recover rent at the rate of Rs,50 per month. In my view, it was for the appellant to have ascertained the factual position on receipt of the above notice and if an illegal order was passed by the revisional authority, he should have agitated the question ,of legality before the competent forum. In my opinion, it was not open to the learned Rent Controller to examine the legality of the above order, particularly in view of the fact that no such plea was raised in the written statement. A mere statement in the cross- examination that revisional order was passed without notice to the appellant was not sufficient to hold that the above revisional order was illegal or without jurisdiction.
4. As regards the question of default Mr.Nisar Ali has referred to the case of Nizom Din (represented by 14 heirs) v. Mst. Nawab Bibi and the case of Muhammad Ibrahim v. Muhammad Shafi and another 1983 CLC 818, in both the above cases, learned Single Judges of the Lahore High Court have taken the view that a landlord is entitled to claim rent on the basis of the latest assessment from the date of service of a notice informing about the latest assessment and not prior to the date of such notice. Even on the basis of ratio decided of the above cases, the ground of default is sustainable as the appellant had not tendered rent after the service of the above notice on 25th March,1970 within a period of 90 days from the date of the receipt of the same in terms of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
5. Referring to Mr.Nisar Ali's submission that one appeal was incompetent against the order of the Rent Controller pertaining to the two rent cases, it may be observed that it appears that this plea was not raised before the first appellate Court. Even otherwise the above plea seems to be devoid of force as all the provisions of C.P.C. Are not applicable to rent proceedings. An appeal under the Rent Restriction Ordinance cannot be equated with a regular civil appeal. Since both the rent cases were amalgamated, common issues were framed, common evidence was recorded, and common order was passed, in my view one appeal could have been filed.
6. For the aforesaid reasons the appeal is dismissed with no order as to costs. However, I grant 8 months time with the consent of the learned counsel for the respondent Mr. Muhammad Ali Janus the subject-matter is a shop, on the condition that the appellant shall continue to deposit rent in terms of the learned 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 8 months. Furthermore, in case the appellant fails to hand over the vacant possession of the premises on the expiry of the above period of 8 months, the learned Rent Controller shall issue a writ of ejectment without further notice to the appellant.