SHAFIUR REHMAN, J.--Leave to appeal was granted to the tenant under orders of ejectment for default to examine whether the authorities had correctly adopted and accepted Rs.190 per month as the rent due from the appellant and in holding him to be in default in the payment of that rent.
2. It was the admitted position between the parties that the rent note executed on 23rd of March, 1969 provided a monthly rent of Rs. 150 per month apart from other charges for the utilities, from tenant. The respondent/landlord sued for the ejectment of the appellant on three grounds, of default, of personal need and of damage to the property. In alleging default, rent at the rate of Rs.190 per month was claimed and due from 1-6-1976 to 15-10-1976, for which period the default in the payment of rent was alleged. This claim at the rate of Rs.190 per month was based on the ground that in proceedings before the Small Causes Court for the recovery of rent for the period 1- 7-1974 to 30-7-1975 a statement on special oath had been recorded wherein the tenant had admitted the rate of rent to Rs.190 per month. Though in those proceedings that rate of rent was not adopted and accepted by the Small Causes Court in decreeing the claim of the landlord which was allowed at the rate of Rs.150.00 per month, but in a subsequent application before the Small Causes Court that statement on special oath was adopted as the conclusive evidence of the rate 'of rent and a decree in accordance with that rate was passed in favour of the landlord. In resisting the claim the appellant specifically contended "it is submitted that the opponent never agreed to pay Rs. 190 per month unconditionally". Before the Rent Controller a specific additional issue was framed and it was as hereunder:-- "What is the rate of rent?"
This additional issue was given no number and consequently the Rent Controller as well as the first appellate Court did not specifically note it or deal with it but incidentally considered it while discussing Issue No.1 which was as hereunder:-- '
"Whether the opponent committed default?"
3. The Rent Controller as well as the first appellate authority held that in view of the special oath, Rs.190 was the rent and it was not paid and directed the ejectment of the appellant. The other grounds were not found established. The tenant's appeal and the cross objections filed by the respondent came up for disposal before the High Court by the impugned order. As regards the omission of the authorities to pointedly attend to the additional issue framed, the learned Judge observed in the following words:-- "Mr. Badrudduja, the learned counsel for the appellant has contended that the issue relating to rate of rent was adopted by consent, but it was not considered and has not materially been decided by the learned Controller. On the other hand Mr. Kahirul Hassan, the learned counsel for the respondent has contended that at the time when the matter was decided Sindh Rented Premises Ordinance had been enforced, and therefore, in view of the procedure under this Ordinance, it was not necessary to frame the issues. From the order of the learned Controller it seems that all the issues framed in the case except one issue relating to the rate of rent have been mentioned.
However, for determining the question, whether default has been committed the only issue involved was the rate of rent."
It was also agreed and the agreement has been recorded by the learned Judge in the impugned judgment in the following words:-- "Both the learned counsel agree that if the rate of rent is at R 190 p.m. Default has been committed, but if the rate of rent is Rs.150 p.m. Then there is no default. From the impugned order I find that the learned Controller has dealt at length with issue of default with particular emphasis on the rate of rent. Therefore in these circumstances if he has slipped over the particular issue relating to the rate of rent no prejudice seems to have been caused to the appellant."
4. The main controversy before the High Court revolved round the oath and the exact rate of rent payable under it. The High Court dealt with that question in the following words:-- "According to Mr. Badrudduja the statement made on oath is a conditional statement and the respondent had agreed to provide certain facilities on the basis of which the appellant had agreed to pay Rs.190 P.M. But as those facilities were not provided he did not pay rent at the rate of Rs.190 P.M. This conditional agreement to pay the rent at Rs.190 P.M. Cannot be spelt out from the statement. The statement is sufficiently specific with regard to the rate of rent. It is only in the later part of the statement that it has been stated that the appellant has paid the rent at the rate of Rs.150 P.M. As other facilities were not provided by the landlord, If the statement as contended by the learned counsel for the appellant was wrongly recorded, remedy was open to him to challenge the order in Revision, but it seems that the appellant did not raise any objection, and when in the next year another Distress Warrant was filed and was decided on the basis of this statement, the same was accepted without any challenge."
The appeal of the tenant was dismissed and so was the cross objection, filed by the respondent.
5. Mr. Badrudduja Khan, Advocate, the learned counsel for the tenant/appellant contended that the agreed rent was Rs.150 per month. The enhancement was conditional. The condition remained unsatisfied. The entitlement of the landlord to rent at the rate of Rs.190 was not established. The tenant was never in default. There was no factor available under the law to warrant the eviction of the tenant/appellant.
6. Mr. Ansar Hussain, Advocate, the learned counsel for the Respondent/landlord in seeking protection of the orders passed, made contentions which go beyond the pleadings and admissions made by the landlord. He contended that the rent in fact was never paid at all by the appellant to the landlord; that he remained in default throughout and that the rent due was at the rate of Rs.190 per month and not less.
7. From the recital of the facts and the documents on record it is established that the rate of rent in issue before the Small Causes Court in the first round was not at all in dispute. The claim was made and was allowed at the rate of Rs.150 per month and not a rupee more. The special oath was utilized in the subsequent proceedings for fixing the rate of rent different from the rate agreed in writing earlier. The special oath as contained in order of Small Causes Court, dated 18-9-1975, is reproduced hereunder:-- "Opponent takes special oath and states that we had agreed to a rent of Rs.190 per month. I paid rent at Rs.150 per month as other facilities were not given to me as promised. Up to March, 1975, I have paid rent at Rs.150 per month. I do not remember the date of increase of rent."
If this statement is read as a whole and it has to be read as a whole and cannot be read in pieces and bits, the import and meaning is clear and unequivocal. The enhancement of rent had to take place from Rs.150 to Rs.190 on provision of certain other facilities, the particulars of which were not elicited. The tenant taking the oath has made the provisions of the facilities, a pre--condition for enhancement of the rent. It is not the case of the landlord that the facilities promised or agreed had been in fact provided. In the absence of such assertion or proof, he cannot be held entitled to the rent at the rate of Rs.190 per month, simply on the basis of this special oath.
8. We find that there has been an error of law in fully understanding and interpreting the special oath and this may have been on account of not pointedly adverting to the additional issue framed and the words thereof. The appeal is, therefore, allowed. The order impugned is set aside. The ejectment application filed by the respondent landlord stands dismissed. No order is made as to costs.
This order will not however, entitle the appellant either to claim refund or adjustment of rent paid in excess of Rs.150 under the orders of the Small Causes Court because no legal remedy was sought against that order which has become conclusive qua the appellant.