' By way of instant appeal, Muhammad Tufail seeks rescission of an order dated 2-12-1991, passed by Mr. Muhammad Afzal Javed, Additional. District Judge, Lahore, affirming an order dated 29-1- 1991, made by Mr. Tahir Jamil Butt, Rent Controller, Lahore, Muhammad Tufail's eviction from the disputed premises having been ordered by reason of his default in having complied with an earlier order dated 28-3-1990, passed under section 13 (6), Rent Restriction Ordinance, at the instance of Mst. Viran Bibi, claiming to be the landlady.
2. In December, 1989, Viran Bibi, widow of Allah Ditta, filed an ejectment application against Muhammad Tufail, on the ground of default in payment of rent, on the part of the tenant, impairment in condition and value of the property, and requirement of the premises for use by her son. Learned Rent Controller passed a tentative order on 28-3-1990, calling upon the respondent before him to deposit arrears of rent at the rate of Rs,300 per mensem, from June, 1989 to March, 1990 (10 months), amounting to Rs,3,000, by 30-4-1990. On a subsequent date, i,e, on 11-11-1990, it was revealed that there had been disobedience on the part of the tenant in complying.With the aforesaid order. Eviction order was resultantly made against him, by the learned Rent Controller, on 29-1-1991, and he was asked to vacate the premises within a month. Learned Additional. District Judge endorsed the opinion of the learned Rent Controller, holding the tenant to be a wilful defaulter, liable to ejectment on that sole ground.
3. Muhammad Tufail had been inducted into the premises as a tenant by Viran Bibi's late husband, Allah Ditta, in the year 1962. In the ejectment application filed by Viran Bibi, she had herself stated that initially the monthly rent for the disputed portion of the house, measuring 1 Marla and 5 sq ft.
Was Rs,25 only but it was subsequently enhanced to Rs,300 per month. Justification for the increase in rent, according to the landlady, was that it was an open space, to begin with, and it was later converted into a shop, after it was given the shape of Verandah, wherein the tenant operated his fodder-cutting machine (Toka), which was a flourishing business. The rent is stated to have been increased, after Allah Ditta's death, when the tenancy was renewed. According to the landlady, the tenant had been making payment of rent at the stated rate (Rs, 300), but from June, 1989 onwards, he stopped paying the rent, with no justification. On record exists, as Annexure 'C', an agreement of tenancy dated 13-10-1975, having been tendered by the tenant. The same states that the tenant had made payment of rent in advance, in lump sum from 1-12-1978 to 31-7-2000 (for 22 years and 8 months). It is also mentioned that Allah Ditta had already received rent for a period of about five years, from May, 1973 to 30-11-1978, vide receipt dated 12-5-1973. This document was placed before the Rent Controller by the tenant, whose plea was that he was not liable to pay any rent till end of this century. Learned Rent Controller is of the view that execution of this agreement has yet to be established and the recital thereof could not straightaway be believed. At the same time it has been remarked that the plea of the landlady to the effect that the rate of rent had been enhanced from Rs,25 to Rs,300 and that the tenant had committed default in payment of rent seemed to be credible and that she was entitled to receive rent from the tenant at the rate of Rs,300 per mensem, in future, as also for the past period.
4. Learned counsel for the appellant rightly urges that as against a document in existence, prima facie supporting the standpoint of the tenant, oral assertion of the landlady, having nothing in support, was given preference and accorded recognition by the learned Rent Controller, with no legal or equitable justification. Execution of the said agreement of tenancy will, of course, be proved legally by examining the scribe and the marginal witnesses, but that exercise will be undertaken when the matter proceeds further and the parties are called upon to lead evidence in support of their assertions. The learned counsel for the appellant maintains that Allah Ditta, late landlord, was not an unwise person and had got from the tenant an amount of Rs,6,800 , as rent from 1-12-1978 to 31-7-2000, preceded by a similar act of having obtained in advance an amount, as rent in lump sum from May, 1973 to November, 1978. At that time, it is pointed out, the small strip of land in question could not even fetch as much sale-price, and it could not be said that Rs,25 was too meagre a rate of rent. It is to be noted that according to Viran Bibi herself, as stated in the eviction petition, this was the monthly rent, to begin with. The site had subsequently been converted into a Vcrandah or a shed for commercial use, warranting enhancement in rent, as huge as 12 times, as she claims. This the landlady had to establish by adducing evidence and there she ought not to have been believed, in the manner it has been done by the learned two Courts below, in an absolutely credulous manner. It is in situations like this that superior Courts of the country have desired that a landlord must not straightaway be believed, and an order about deposit of pre-trial rent, as per whimsical desire or oral claim of the landlord, should not be made, and Rent Controller should act with prudence and make a rational and fair order. It has been pronounced in PLD 1983 Lahore 574 and 1986 CLC 1731 (Karachi) that it is obligatory for the Rent Controller to make a tentative determination about rate of rent payable by the tenant, by application of judicial mind, so that such an order does not create hardship for either party. Such determination should be bayed on some valuable material and have nexus with the rate prevailing in the area, due regard having been given to the type, size and location of the building. Even in the ruling relied upon by the learned counsel for the respondent (landlady), 1990 CLC 1156 (Lahore), it has been observed that where there is a dispute about rate of rent or amount of rent due, Rent Controller is required to determine the same approximately, subject to its final determination in the course of further proceedings, or at the end thereof. If no documentary evidence is instantly available, which could be of any assistance in the exercise, judicial guess or estimation, to work out a fair rate, could be an answer and a suitable methodology in finding a way out of the predicament. Even in PLD 1990 SC 1201, another authority cited in his support by the learned counsel, it has been pronounced that tenant, having no right of appeal against a tentative pre-trial rent order will have a right to challenge correctness of the determination, at the final stage, after his defence as defaulter is struck off and his eviction is ordered and he agitates against it. Rent Controller does enter upon a preliminary inquiry of summary character before making an order under section 13 (6); and if he acts in a wholly fanciful and arbitrary manner, such a conduct could not evidently be approved of, for it would not advance ends of justice, and may work immense hardship and cause irretrievable injury to a party to the litigation, if too fabulous an amount or too meagre a rate of rent, as the case may be, is fixed as tentative rent, with a requirement for payment of arrears of rent, stretching over a long period. The intention of law is not to embark upon a thorough inquiry of conclusive nature at that preliminary stage of the proceedings.
5. To infer that what is being claimed by the landlady in the eviction petition may not be the whole troth, attention may be drawn to the fact that she has nowhere stated as to when was the enhancement in rate of rent actually effected. Even a vague statement hinting at that all- important development has not been made. The learned counsel for the appellant rightly urges that either a Rent Controller is approached for securing such a colossal increase in rent, or if it is done by a mutual agreement, the same is normally reduced into black and white. The lady has neither produced any renewed deed of tenancy, nor any rent receipt to show that Rs,300 as monthly rent had been fixed or had ever been paid by the tenant. Learned counsel for the respondent maintains, by referring to the observations recorded in the judgments of the two Courts below, that the very fact that the tenant had himself sought extension in time for making payment of arrears of rent, by making an application on 14-11-1990, would suggest that he was not disputing the genuineness of the demand/claim of the landlady. The contention has been repelled by the learned counsel for the other side, in drawing attention of the Court to the fact that it has always been the plea of the tenant that he has paid rent for the occupation and use of the building, right up to end of the current century, and was no longer under any obligation in that behalf. He had nowhere conceded to the claim of the landlady, made in that regard. Averments of the tenant, as contained in the written statement or the rejoinder dated 28-2-1990, have not even been referred to by the learned Controller. Even in the application dated 14-11-1990, standpoint of the tenant was not dissimilar. Actually, it is submitted, the tenant and his counsel both were absent when the initial order under section 13 (6) was passed by the Rent Controller on 28-3-1990. Presence of his counsel was marked in routine, it is pointed out. Muhammad Tufail and his counsel, Hartz Ghulam Bari, Advocate, had both sworn and submitted affidavits dated 14-11-1990 to the effect that both of them were absent from the Court on 28-3-1990, and the order was passed, not to their awareness. When, on 11-11-1990, the Rent Controller posed a question to the tenant in that respect, his reply was that he had not paid or deposited any amount as rent for the past period, as he was ignorant of the direction made about deposit of arrears of rent and further as he had already discharged his liability till 31-7-2000. As a measure of abundant caution, and in order to obviate the eventuality of his ouster from the premises, he did make an application on 14-11-1990, with a prayer that if compliance with the direction was a must, he be afforded an opportunity to do the needful.
Manifestly he had no escape, except to abide by the order dated 28-3-1990, for otherwise he would have faced the risk of his being dislodged from the place of his business; and this he wanted to avert. However, his iequest was not acceded to and he was made to suffer for his ostensible disobedience of the order dated 28-3-1990 made under section 13 (6).
6. The circumstances of this case surely warrant that the Rent Controller should first make a determination of prevailing rate of rent in a fair and objective manner, by application of judicial and judicious mind, and pass a proper order under section 13 (6), before proceeding further. I would allow the appeal and set aside the impugned orders passed by both the Courts below, and remand the case for fresh decision. There shall be no orders as to costs. Records shall be remitted and shall be put up before the learned District Judge, Lahore, on 26-11-1992. He will entrust the case either to the successor of Mr. Tahir Jamil, who is said to have been shifted, or to any other Civil Judge, with powers of the Rent Controller. It would be in the fitness of things that the matter is not made to linger on but is finally disposed of at an early date.