1. ' Property bearing No.B-9 RS 2/16 Ramswami, Karachi was transferred to the respondent under PTO No.14101, dated 14-4-1961. The appellant was in occupation of the said premises, therefore, on 20-12-1962 the respondent served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act calling upon the appellant to pay the rent at the rate of Rs.25 p.m. which according to him was the latest assessment of the K.M.C.
2. This notice was duly served on the appellant on 27-12-1962, but the appellant paid rent @ Rs.10 p m. which was accepted by the respondent. It seems that the appellant filed objections before the Assessing Authorities for reduction of assessment, which by an order, dated 17-6-1968 was reduced to Rs.10 p.m. The respondent filed a revision application against that order which was allowed on 23-2-1970 by the Additional Commissioner, Karachi, and the assessment was fixed at Rs.50 p.m.
3. Consequently, the respondent by a notice dated 30th March, 1970 called upon the appellant to pay the rent at the rate of Rs.50 p.m. in terms of order of the Additional Commissioner. He also demanded arrears of rent at that rate from July, 1968 to 30th June, 1969, and further claimed the same rent from 1-7-1969 till the date of service of notice. The appellant denied the claim. The respondent then filed an ejectment application under section 13 of Sind Urban Rent Restriction Ordinance on 25-11-1970 seeking ejectment of the appellant on the ground that he has failed to pay rent w.e.f. 1st July, 1968 and, therefore, default has been committed. The appellant filed written statement in which he denied that he is a defaulter. He has stated that the respondent had demanded Rs.52, but with the intervention of the elders of the locality instead of Rs.8 which was the latest assessm ent he started paying Rs.10 to the respondent. He further stated that as respondent refused to accept the rent at the rate of Rs.10 he started depositing it in Court. He also challenged that the order of the Additional Commissioner enhancing the assessment is illegal. The learned Controller by the impugned order held that the appellant has committed default in payment of rent @ Rs.52, as assessed by the K.M.C., and, therefore, he was a defaulter. He further held that assessm ent made by the Additional Commissioner at the rate of Rs.50 was not relevant and binding.
4. ' Mr. Mirza Abdul Rashid the learned counsel for the appellant has contended that after the expiry of six years from the date of service of notice under section 30 the relationship between the parties was to be governed by the provision of Sind Rented Premises Ordinance, and therefore no enhancement could have been claimed or allowed. Mr. Muhammad Sadiq the learned counsel for the respondent on the other hand contended that after notice under section 30 the parties had entered into agreement, whereby the respondent had agreed to charge rent @ Rs.10 per month provisionally subject to the adjustment in terms of the final assessment by the relevant authorities.
5. On this basis the learned counsel contended that the appellant was bound to pay at the rate of Rs.50 p.m. and having defaulted to pay it he is a defaulter. A perusal of the entire record shows that such a plea was introduced for the first time during evidence. The respondent served notice after the assessm ent had been made by the Additional Commissioner and he had demanded rent at the rate of Rs.50 p.m. from 1-7-1968. He had also claimed difference from 1-7-1968 to 30-6-1969 on the basis of the revised assessm ent. Again in the ejectment application filed by the respondent it was pleaded that on the basis of the revised assessment, the respondent is entitled to claim rent and then in paragraph 5 it was pleaded that opponent did not tender any rent due from him from 1st July, 1968, hence the default has been committed. It is thus clear that the argument advanced by the learned counsel for the appellant is not on the basis of the pleadings of the parties. Mr.Sadiq the learned counsel for the respondent has referred to a part of the statement of the respondent where he has stated that he was accepting Rs.10 provisionally. A mere reference in the statement cannot change the nature of the case that has been pleaded by the respondent. A party is not entitled to vary the proof from his pleadings. It is a settled rule that no party is allowed to take new ground in the evidence departing from his pleading. If such a departure is made it should be ignored. Reference can be made to PLD 1974 SC 322. The settled position emerging from the record is that the respondent at no stage had pressed his claim on the basis of the alleged agreement to accept Rs.10 p.m. as rent provisionally subject to the assessment of the relevant authorities. Even the case filed by the respondent is in respect of rent from July, 1969 at the rate of the latest assessm ent made in 1970 w.e.f. 1-7-1969. The respondent himself has not claimed any rent with effect from 1962.
6. ' The next question for consideration is whether in these facts and circumstances, the respondent could have claimed rent at the enhanced rate at Rs.50 p.m. The admitted position is that notice under section 30 Displaced Persons (Compensation & Rehabilitation) Act was served on 27-12-1962 therefore, the period of six years under which protection was afforded to the tenant expired on 27- 12-1968. After this date the relationship between the parties was to be governed by the provisions of Urban Rent Restriction Ordinance, 1969. In this regard the learned counsel for the appellant has referred to Muhammad Bud and another v. Mst.Rafiqan 1982 CLC 1919 where it was held that after the expiry of six years from service of notice under section 30 the landlady was not entitled to demand enhanced rent without the prior permission of the Rent Controller. The next case referred on behalf of the appellant is 1983 CLC 1224 in which the same view was taken. In Muhammad Iqbal Qureshi's case PLD 1980 Lah. 443 it was observed that after the expiry of six years the relationship of landlord and tenant is regulated in accordance with the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. Therefore, the settled position in law is that after expiry of six years from the date of service of notice under section 30, the relationship of landlord and tenant is to B be governed by the law which regulates such relationship. In the present case it would be Sind Urban Rent Restriction Ordinance.
7. ' Now the question falls for consideration is whether under the provisions of Sind Urban Rent Restriction Ordinance, 1959 the respondent was entitled to increase the rent according to the latest assessm ent. The answer to this querry should be in the negative. Under this Ordinance the increase in rent is permissible under sections 5, 8 and 9. If a landlord wanted to get a fair rent fixed he was entitled to make an application under section 4 of the Ordinance. Besides these provisions of the Urban Rent Restriction Ordinance, the landlord was not allowed to increase the rent either according to the latest assessm ent or otherwise. The net result is that the demand made by the respondent to increase the rent according to the latest assessment from 1st July, 1968 was illegal and unwarranted. From the evidence it is clear that the appellant did offer at the rate of Rs.10 which was refused by the respondent. He therefore, remitted the rent by money order seven times from 29-8-1968 to 1970 and every time it was refused. Finally he filed an application on 31-3-1970 for deposit of rent, and he has been depositing rent in Court. In these circumstances the appellant was not a defaulter and the finding of the learned Controller is completely erroneous.
8. ' The learned Controller in his impugned order has observed that the order passed by the Additional Commissioner-was not relevant for the purposes of demanding the rent as it was the assessm ent made by Karachi Municipal Corporation which should have been taken into. consideration. In this regard the learned Controller has referred to 1969 SCMR 435 and PLD 1971 Lah.
495. There can be no dispute with the proposition that in terms of section 30 a landlord was entitled to demand rent according to the latest assessment of the Municipality or the local body.
9. The question whether latest assessment made by the Excise and Taxation Department can be termed as latest assessm ent of the Municipality was considered in Noor Khan v. Abdullah PLD 1976 Kar. 862 where in view of rule 2(a) of West Pakistan Municipal Committee (Building & Land Tax)
10. Rules, 1962 "the Municipal Committees were not required, unless specifically asked to prepare separate assessm ents, and the assessments of the Taxation Department would hold good for other purposes including those under section 30 of the D.P. Act. " The assessment made by the Additional Commissioner was, therefore, relevant D for the purposes of determining the latest assessm ent of the Karachi Municipal Corporation. However, as observed earlier the respondent could not demand rent at the rate of the latest assessment. The appeal E is, therefore, allowed.