' The dispute relates to shop bearing No, B./V111-4R.40 situated in Bazar Kalan, Jhelum City. It was purchased by the appellant in an open auction held in 1960 and thereafter regular Transfer Order was issued in his favour, He issued notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to the respondent on 18-10-1958 which was duly complied with by him who started paying rent at the rate of Rs, 60.
2. The rental value of the shop in question was re-assessed at Rs, 150 per mensem. This order of the authority concerned was challenged in appeal by the respondent which was accepted and monthly rent was fixed at Rs,
115. His revision petition filed against the slid order was however, rejected. Since the respondent refused to pay rent according to the latest assessment made on 21- 104965 by the Director, Excise and Taxation, Rawalpindi while deciding his appeal, therefore, the appellant filed an ejectment application against him on 27-10-1965 for non-payment of due rent.
This application was, however, dismissed by the Controller on 4-11-1966 mainly on the ground that the appellant-landlord was entitled to charge rent on the basis of the assessment in force at the time when the property in question was transferred in his favour as according to the Controller latest aesessm ent as mentioned in section 30(1)(a) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was that assessment which was in force at the time of transfer of the property. This order of the Controller was upheld by the learned District Judge in appeal, on 6-6- 1967 holding that the re-assessm ent of the rental value of the property fixing the monthly rent at Rs, 115 on 21-10-1965 had no effect so far as the payment of monthly rent by the respondent as concerned.
3. Thereafter the appellant filed another ejectment application on 13-1-1968 alleging that since he was entitled to payment of monthly rent at the rate of its. 115 and the same had not been paid by the respondent with effect from 1.7-1965 to 31-12-1967, therefore, he was liable to be ejected. He also sought ejectment of the respondent in that application on the ground of personal need to occupy the shop. The application having been resisted by the respondent preliminary issues as to whether the same was barred under section 14 of the Ordinance and whether the previous order of the Controller as well as of the lower Appellate Court fixing the rate of rent to be Rs, 60 per month was res judicata were framed. The learned Controller decided both the issues in favour of the appellant and against the respondent. The order passed in this behalf was challenged in appeal before the learned Additional District Judge, Jhelum who set aside the findings of the Controller on the preliminary issues and remanded the case for fresh decision holding that so far as the period in respect of which the rent had been determined was concerned, the Controller had no jurisdiction to reopen the matter with regard to that on account of res judicata. He, however, observed in his order that if after the passing of the judgment between the same parties regarding the rent to which the appellant was entitled, the local authorities concerned had revised the rent of the shop in question, the Controller would be authorised to give the finding as to whether the appellant was entitled to receive rent at enhanced rate. The learned Additional District Judge, while disposing of the appeal as referred to above, remanded the case for fresh decision on other grounds such as personal need of the appellant to occupy the shop and since he set aside the findings of the Controller on the issue with regard to non-payment of rent, therefore, the matter in relation thereto could not be reopened after the remand, according to the impugned order.
4. The learned Controller who decided the case after remand, however, held that he was competent to determine whether the appellant-landlord was entitled to recover rent at the rate of Rs, 115 per mensen. He relied in this bel-alf upon the observation of the Additional District Judge, Jhelum, as zeferred to above. Since it was found by the Controller after remand that the respondent was liable to pay rent according to the latest assessment and the same had not been paid, therefore, he passed ejectment order against the respondent holding him to be a defaulter.
The appeal filed by the respondent, however, was accepted by the learned lower Appellate Court mainly on the ground of res judicata. Lee held that the provision as contained in section 14 of the Rent Restriction Ordinance was applicable to the facts of the case. According to him since it was found in the previous litigation between the same parties in relation to the same property that the appellant was entitled to recover rent from the respondent at the rate of Rs, 60 only, therefore, the respondent could not be held to be defaulter if he failed to pay monthly rent at the rate of Rs, 115.
According to the learned lower Appellate Court the respondent being liable to pay monthly rent at the rate of Rs, 60 which he has been paying regularly in view of the previous orders, has not committed any default. He, therefore, accepted the appeal filed by the respondent. The record shows that the appellant after the decision of his first ejectment application issued notice Exh. P. 2, to the respondent demanding payment of monthly rent at the rate of Rs, 115 in accordance with the latest assessm ent made on 21-10-1965. This notice was replied by the respondent vide Exh. P. 3 dated 23-9-1967 refusing to make payment of the monthly rent at the said rate. Even prior to that the respondent had intimated the appellant vide his notice dated 4-7.1967 Exh. P. 4 that he was liable to pay rent at the rate of Rs, 60 only and not according to the assessment made on 21-10- 1965.
5. The question which arises for consideration is as to whether the appellant who is the owner of the property in dispute can claim payment of monthly rent according to the assessment dated 21- 10-1965 and if so, when it will be due to him and what is meant by the words 'latest assessment' as used in section 30 (1) (a) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
According to the said provision transferee of property is entitled to charge rent on the basis of the latest assessm ent carried out by the Municipality or Local authority. As mentioned above the Controller while disposing of the first ejectment application held that the latest assessment as referred to above meant the assessm ent in force at the time of transfer of the property. This finding was upheld by the learned lower appellate Court. This finding being erroneous and clearly against law cannot be maintained. If such erroneous view is accepted to be correct then it would mean that transfree of an evacuee property would never be able to charge rent except according to the assesment in force at the time of transfer of such property. This is certainly not the intention of the Legislature. It does not want the position to remain static so far as payment of rent by the occupant of such property is concerned. This view gains strength from Malik Abdul A215 v. West Pakistan Publishing Company (1), Nizam Din v. Mst. Nawab BIN (2) and Messrs Yusuf & Co v. Mst.
Rasheeda Begum (3). It has been held in PLD 1965 Lab. That there is no obligation on the part of the tenant ipso facto to pay the rent to the transferee in accordance with the latest assessment of the Municipal Committee, as he is liable to pay the rent which he was paying before the transfer. A right, is created in the transferee to charge rent based on the latest assessment carried out by the municipality and unless the transferee exercises his right in this behalf, there would be no corresponding obligation
(1) PLD 1965 Lab. 82 (2)PLD 1970 Lah. 923
(3) PLD 1975 Kar. 684 ' imposed on the tenant to pay the rent at an increased rate in accordance with the latest assessm ent. The transferee, therefore, must indicate his intention to do so before he can enforce his claim and complain of default in the context of the proviso to the relevant provision of law.
Similar view was taken in Muhammad Mara v. Mistri Dilshad Muhammad and another (1) holding that the tenant was not obliged under the law to find out as to what was the latest assessment as he needed only to pay or tender the rent due at the rate which he had been paying immediately before the transfer. Following the principle of law as laid down in both the cases it was held in PLD 1970 Lah. That such increase in the rate of rent according to the latest assessment could be made prospectively by issuing a notice by the transferee to the tenant en the basis of the said assessm ent. It was further held that the tenant in such case was liable to pay rent according to the old rate but after the receipt of the notice to pay rent according to the latest assessment he was obliged to pay rent accordingly. The same view had been followed in PLD 1975 Kar. The property in dispute in that case was assessed by the Karachi Municipal Committee at Rs, 360 per mensem with effect from 1-7-1960. It was held that according to proviso 'A' to section 30(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 195$, the respondent in that case was entitled to charge rent on the basis of the latest assessment as carried out in July, 1960 by the Municipality. It this view of the matter it cannot be said that the latest assessment is that assessment which was in force at the time of transfer of the property. According to law it is that rental assessment which is carried out by the authority concerned periodically and according to which transferee of an evacuee property after its transfer in his favour can claim payment of rent. It is also clear from the discussion made above that transferee of such property is entitled to payment of rent at the enhanced rate, if any, according to the latest assessment after he exercises his right in this behalf by issuing a notice to his tenant. The rent, therefore, in such case would become due from the tenant with effect from the date he receives the notice. The transferee of property, however, would not be entitled to payment of rent according to the enhanced rate on the basis of latest assessm ent if he has not issued any notice in this behalf to the tenant. Payment of rent at the enhanced rate would become due from him only in case if he has exercised his right for that purpose.
6. In the present case, as mentioned above, the first notice by the appellant to the respondent demanding payment of rent according to the latest assessment being Rs, 115 per month was issued on 19-9.1967 which was replied by the respondent on 23-9-1967. Thus under the law the respondent was obliged to make payment of rent at Rs, 115 per month according to the latest assessm ent as made in October, 1965. It is proved on record that he has not made payment of rent accordingly in spite of notices issued to him and long litigation on this point between the parties. It has been argued by the learned counsel appearing for the respondent that even if it is accepted for arguments sake that his client was obliged to make payment at the enhanced rate in compliance with the notice dated 19-9-1967, since according to the final order passed in the previous litigation it was held that he was obliged to pay Rs, 60 per month only, therefore, relying upon the said order genuinely he did not comply with the demand in the notice referred to above.
According to the learned counsel the respondent as such cannot be deemed to be wilful defaulter.
I am afraid this contention has no force in the given circumstances. The present ejectment application was
(1) PLD 1968 Lab. 252 ' filed on 13-1-1968 while the notice for payment of rent at the enhanced rate was issued on 19-9- 1967. The application itself was decided by the Controller on 1-5-1969 holding that the respondent was liable to pay rent according to the enhanced rate, in spite of that the respondent did not comply with the lawful demand made by the appellant. The tenancy in the present case being statutory non-payment of rent due from the tenant forfeits such tenancy. The legal position as well as facts of the case indicate that the respondent was obliged to make payment of rent according to the latest assessm ent after he received notice in September, 1967 and since he failed to do so, therefore, I am afraid no indulgence can be shown in his favour. The circumstances of the case show that he has been willfully avoiding to comply with the demand made in the notice. In this view of the matter the respondent is liable to be ejected from the premises in question being a defaulter.
7. The impugned order has been passed by the learned District Judge on the basis of section 14 of the Rent Restriction Ordinance involving principle of res judicata. That aspect of the case pales into insignificance in view of the fact that whole case has been reopened in appeal before this Court where it is to be found as to which proper order has to be passed warranted by law. That being the position the order passed in the previous litigation holding that the respondent was entitled to pay Rs, 60 per month only as rent due from him, has no bearing so far as the decision of the present appeal is concerned.
8. The learned Controller has decided issue No, 1 about the bona fide personal need of the appellant against him, on the ground that he has only examined himself as well as his son to prove his bona fide need and soch evidence being not reliable no order in this behalf can be passed in his favour. The learned lower Appellate Court has not passed any order about this aspect of the case. I may have remanded the case to the lower Appellate Court for decision of this issue but since the issue with regard to default has been found against the respondent and there is sufficient material on record to dispose of issue No, 1 also, therefore, I need not send the case back to the Court below for decision on the relevant issue. The appellant has examined himself as well as his son Manzoor Ahmad to prove bona fide need to occupy the shop. He has stated that this is the only shop owned by him in the Main Bazar of the city which is required by him as well as by his son to run cloth business there. His son as proved on record had gone to U. K. To do some business but at the time of the institution of the present ejectment application he had come back from there to do some business in this country. There is nothing on record to show that the appellant or his son has got any other shop in the city, and even if it is so according to law the appellant cannot be campelled to leave the shop In question and choose another one as held in Sabu Mal v. Kika Ram alias Heman Das (2). According to law if the landlord possesses more than one house or shop in the same area, the choice as to which of the house or shop he would like to occupy is surely a matter within his discretion and the law does not give either to the tenant or to the Controller the poser to determine where the landlord should reside or do business as the case may be. It is interesting to notice that the averments as made by the appellant and his son Manzoor Ahmad on issue No, 1, have not been controverted by the respondent while appearing as his own witness. After all how to make
(1) 1973 SCM R 185 out a case for bona fide personal need and who is the best witness to depose in relation thereto. It is always the lanlord of the property who can show reasonable cause for occupying a particular property for personal need. If he himself fails to make out a case for bona fide personal need then other evidence produced by him in this behalf would be of no use. In this view of the matter it is always the statement of the landlord as well as of the person for whose benefit premises are sought to be vacated, which is most relevant to determine the point in issue. The statement of the appellant as well as of his son as referred to above makes out a case for bana fide personal need of the appellant to occupy the shop in question. As such the finding of the Controller on this issue is hereby reversed.
9. The result of the above discussion is that the impugned order passed by the learned lower Appellate Court is hereby se: aside and the respondent being a defaulter in the payment of due rest and the premises being bona fide required by the appellant, ejectment order is hereby passed against the respondent. He would hand over the vacant possession of the shop within a period of one month. The appeal is accepted with costs.