This is a tenants second appeal against his landlord arising out of the proceedings for his ejectment from Shop No. P. 215, Ward No. 6. Bawana Bazar, Lyallpur,
2. The shop in dispute was purchased by the respondent, Mst. Nawab Bibi in open auction and the P. T. O. Was duly issued in her name on the 12th of December 1960. At the time this shop was occupied by Nizam Din, appellant, it is alleged that at first on or about the Ist of August 1961, she sent a notice to him under section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958. This was followed by an applica--petition brought by her against him before the Rent Controller, Lyallpur, under section 13 of the West Pakistan Urban Rent Restriction Ordinance. During the course of those proceedings on the 23rd of March 1962, the learned Rent Controller had passed an order under section 13(6) of the Ordinance for the deposit of tentative rent at the rate of Rs. 16 P.
M. For the period from the 12th of December 1960 to the 28th of February 1962. On the 7th of July 1966, the Rent Controller passed an order in favour of the respondent for the ejectment of the appellant from the shop. The appellant then filed an appeal against it before the District Judge, Lyallpur. However, during the course of this appeal the respondent made a statement withdrawing her applica--petition for his ejectment. On this, on the 25th of January 1967, the learned District Judge dismissed the appeal before him.
3. Under these circumstances, on the 31st of January 1967, the respondent sent a fresh notice to the appellant about the transfer of this shop to her and demanding rent for the shop at the rate of Rs.
100 P. M. On the failure by the appellant to com--ply with this notice, on the 16th of May 1967 she filed the petition, out of which this appeal has arisen, for his ejectment from the shop, inter alia, on the ground that he had failed to pay or tender the rent amounting to Rs. 7,740 for the shop for the period from 12-12-1960 to 30-4-1967 at the rate of Rs. 100 P. M. The appellant in his written statement has pointed out that the demand for the payment of the rent at the rate of Rs. 100 was far too excessive. The rent of the shop was charged by the Rehabilitation Authorities at Rs. 4.50 only, and the learned Rent Controller during the course of the proceedings on the first application had fixed it at Rs. 16 P. M. Only. He denied his liability for ejectment and asserted that on 23-4-1962 he has already deposited the rent for the shop from 12-12-1960 up to date at the rate of Rs. 16 P. M. After hearing the parties, the learned Rent Controller, Lahore, passed the order under section 13(6) of the Ordinance directing the tenant to deposit the arrears of rent amounting to Rs. 8,765 tentatively, for the period from 12-12-1960 to 31-3-1968, at the rate of Rs. 100 P. M. By the 24th of June 1968 and also to continue to deposit the future monthly rent at the same rate before the 15th of each succeeding month. The tenant was allowed to make due adjust--ment for the rent already deposited by him.
The respondent went up in appeal against the order which was, partly accepted by the learned District Judge, Lyallpur, on the 12th of July 1968. In modification of the order passed by the learned Rent Con--troller, he directed that the tenant shall deposit the arrears of rent for the past three years before the application from the 16th of May 1964 at the rate of Rs. 100 P. M. Before the 31st of July 1968 and the rent already deposited by him may be adjusted towards this amount. He was also ordered to deposit the future monthly rent at the same rate of Rs. 100 P. M. For this shop. This is a second appeal against the order filed by the aggrieved tenant. The original tenant died during the pendency of the appeal in this Court and his legal representatives were brought on the record.
4. Before me the learned counsel for the appellant has strenuously contended that the tenant was not at all liable to pay the rent at the rate of Rs. 100 P. M. Which was far too excessive. In this connection he has relied on subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to contend that the tenant was deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer. But according to the proviso (a) to this subsection it was lawful for the transferee to charge a rent "on the basis of the latest assessment" carried out by the Municipal Committee or local authority, as the case may be. According to the learned counsel the latest assessm ent in the context would mean the one that was prevailing immediately before the transfer and consequently the landlord was not entitled to charge any rent in excess. But I find that the learned counsel has in vain built up this argument in the air without any basis. On adverting to the two orders passed by the authorities below, it is evident that the tentative rent for the shop was fixed at Rs. 100 P. M. Bearing in mind the assessments for the property tax and the house tax relating to this property for the years 1960-61, 1961-62, 1962-63, 1963-64. This shop was purchased by the respondent in the open auction held on the 8th of July 1960 and the P. T. O. Was given to her on the 12th of December 1960. According to the Municipal Records, this property was assessed to the house tax for the year 1960-61 at Fs. 1,350 and its monthly rent was in no case less than Rs.
100. The Municipal assessm ent for the year 1962-63 was Rs. 1,080. The shop was assessed to the property tax for the years 1961-62 and 1963-64 at Rs. 1,080. But, in this connection, the learned counsel has attempted to rely on the order dated the 27th of March 1962 passed by the learned Rent Controller, during the course of the proceedings on the first application, when the tentative rent was fixed by him at Rs. 16 P. M. Only. In that order reliance was placed on the record of the property tax for the year 1961-62 in which the annual assess--ment was shown to be Rs. 192 only. But no such copy of the relevant entries from the register of the property tax for the year 1961-62 was produced in this case. According to the assess--ment register produced on this record the assessed rent of this shop was in no case less than Rs. 100 P. M. The previous order dated the 27th of March 1967, passed by the Rent Controller, on which the learned counsel has placed his reliance, does not operate as res judicata in this case. Therefore, on the basis of this record, the two orders passed by the authorities below fixing the tentative rent for the shop at Rs. 100 P. M. Are unexception--able.
5. The learned counsel for the appellant has next contended that in the case of the appellant who is a statutory tenant, the Rent Controller could not assume jurisdiction under subsection (6) of section 13 of the Ordinance, without having first determined, as a condition precedent, that he was a defaulter and has failed to pay or tender the rent within the time allowed by clause (1) of subsection (3) of section 30. In support of this contention in this behalf the learned counsel has relied on Muhammad Amin v. Jamshed A.I (PLD 1967 Lah. 856). This authority lays down that when an application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 is made for ejectment of a statutory tenant under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it is incumbent upon the Rent Controller to determine first whether the tenant has failed to pay the rent or arrears of rent within the period prescribed by clause (1) of subsection (3) of section 30 of the Act before taking any action whatsoever under the provisions of the Ordinance, 1959. If no such determination is made he is not competent to order the tenant to deposit, under section 13(6) of the Ordinance, arrears of rent nor can he strike off his defence in case of failure on part of tenant to comply with such order. Such an order must be held to be without jurisdiction, with the result that all the consequences ensuing from non-compliance of that order must be regarded as nullity in the eye of law. I find that the contention of the learned counsel in this behalf is un--exceptionable. Before assuming the jurisdiction the learned Rent Controller was required to record his finding as to whether the tenant had in fact failed to pay or tender the rent within the period prescribed by clause (i) of subsection (3) of section 30 of the Act.
But he did not do so. There is no express finding recorded by him in his impugned order. Likewise the learned District Judge too did not expressly examine this aspect of the case in his order. It appears to me that before the two authorities below this question was never raised in this form. But I find that to remand this case on this ground at this stage is bound to result in an exercise in futility.
Admittedly the respondent had served a notice dated the 31st of January 1967 on the appellant for the payment of the rent at Rs. 100 P. M. In spite of this the tenant has failed to pay or tender the rent due from him even up-to-date. The petition for his ejectment was filed on 16-5-1967 more than three months after the demand notice. As discussed above, on the basis of the prevailing assessm ent, the landlord was justified in demanding the rent at the rate of Rs. 100 P. M. At best the tenant has deposited the rent at the rate of Rs. 16 P. M. Only and this cannot be accepted as a valid tender of the rent due to the land--lord. Therefore, it shall be quite unnecessary to remand this case on this ground.
6. However, I find that there is considerable force in the last contention advanced before me by the learned counsel. He has pointed out that in the notice dated the 31st of January 1967, the landlord has demanded the arrears of rent from the tenant at the rate of Rs.
100. P. M. Retrospectively with effect from the 12th of December 1960, the date of the issuance of the P. T. O. In her name. Under subsection (1) of section 30 of the Displac--ed Persons (Compensation and Rehabilitation) Act, the person in occupation of the premises is deemed to be a tenant of the transferee on the same terms and conditions as to payment of r rent or otherwise on which he held it immediately before the transfer. But this is subject to the proviso that it shall be lawful for the transferee to charge the rent on the basis of latest assessment carried out by the Municipal Committee or the Local Authority, as the case may be. In Malik Abdul Aziz v: West Pakistan Publishing Company (PLD 1965 Lah. 82) a Division Bench of this Court has held 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. He is liable to pay the rent which he was paying before the transfer. A right, however, is created in the transferee to charge the rent based on the latest assessment carried out by the municipality. Unless the transferee has exercised his right in this behalf, there is no corresponding obligation imposed on the tenant to pay the rent at an increased rate in accordance with latest assessm ent. The transferee, under the circumstances, must indicate his intention to do so before he can enforce his claim and complain of default in the context of the proviso. Similarly in Mian Rehmat All v. Khadeja Hakim (PLD 1967 Lah. 29), it was held that the tenant was not placed on enquiry to find out what the latest assessment was and he needed only pay or tender the rent due at the rate which he had been paying imme--diately before the transfer. In Muhammad Musa v. Mistri Dilshad Muhammad and another (PLD 1968 Lah. 252) it was held that in the absence of a valid notice the occupant need only pay or tender the rent at the rate which he was paying immediately before the transfer. In my opinion, therefore, there is no canon of law under which the liability on the part of the tenant to pay the rent can be increased retrospectively at the enhanced rate even, with respect to the period for which the rent has already fallen due and the liability incurred. This increase, in the rate of rent could be made prospectively by a notice, on the basis of the latest assessment. This being the case, the appellant was liable to pay the rent to the respondent at the old rate of Rs. 4.50 P. M. Up to the date of the notice, and thereafter, in pursuance to the notice at the enhanced rate Rs. 100 P. M. On the basis of the latest assessm ent. In this connection allegedly the respondent has served the appellant with two successive notices dated 1-8-1961 and 31-1-1967. But I find that the notice dated 1-8-1961 is not on the record and at this stage I cannot pronounce upon its validity for the purposes of this order. In the second notice dated 31-1-1967 served on the tenant the landlord demanded the arrears and the future rent at Rs. 100 P. M. On the basis of the latest assessment for the premises. But as discussed by me above her demand for the payment of the arrears retrospectively at the enhanced rate was not tenable. In law and for the purposes of section 13(6) of the Ordinance, the tenant was liable to tenta--tively deposit the arrears of rent for the three years from 16-5-1964 to 31-1-1967 at the rate of Rs. 4.50 P. M. And from 1-2-67 onward at the enhanced rate of Rs. 100 P. M.
But the authorities below have wrongly ordered the tenant under section 13(6) of the Ordinance to deposit the arrears of rent at the rate of Rs. 100 P. M. From the very beginning and these orders are, therefore, D liable to be set aside. The Rent Controller shall now pass a fresh order under section 13(6) of the Ordinance for the deposit of the arrears and the future rent in accordance with my above order.
7. In the result this appeal is partly accepted, the order under appeal is set aside and the case is remanded to the Rent Con--troller for a fresh disposal in accordance with the above. The parties are left to bear their own costs under the circumstances of the case.
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