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Second Appeal No. 6 of 1975 heard on 3rd May 1977.

‑‑‑‑ S. 15(4) read with S. 13 and Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑Ejectment for default in payment of rent‑Tenant found to lave tendered rant even before service of notice, cannot b‑ said to have committed default in payment of rent‑Order of Additional District Judge directing ejectment of tenant set aside.

Saeeduz Zaman Siddiqui for Appellant.

Haji Adam Usman, Attorney for Respondent.

Date of hearing : 3rd May 1977.

The facts disclosed in this appeal are that respondent/landlady was trans ferred property bearing No. RC. 11‑12/2, G‑5/A as from 22‑2‑1962 by the Settlement Department. The appellant was a tenant in the said property and is alleged to have been paying rent at Re. 5 per month to the Custodian Department. After the transfer of the property the respondent got the assessment revised at Re. 25 per month which was later reduced to Re. 11 per month on the representation of the appellant. The appellant entered into an agreement of tenancy with respondent on 5‑10‑1966 whereby he agreed to pay rent at Rs. 20 per month. In spite of assessment of the property having been fixed to Re. 11 the respondent continued realising rent at the rate of Re. 20 per month in terms of the agreement up to June, 1968. It is stated that after June, 1968 the respondent refused to abide by the agreement to tenancy and started demanding enhanced rent at the rate of Rs. 25 per month and refused to accept rent at Re. 20 per month. The respondent filed Rent Case No. 2276/68 against the appellant which was dismissed for want of notice. Under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. He thereafter served the appellant with a statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 dated 22‑1‑19'10 and demanded rent at the rate of Re. 25 per month from the date of transfer of the premises. A sum of Rs. 965 was demanded on account of difference of rent at the rate of Re. 5 per month from 22‑2‑1962 to 30‑6‑1968 and future rent at the rate of Re. 25 per month from July 1968 plus a sum of Re. 504 as water charges. The case of the appellant is that as the respondent had repudiated agreement dated 5‑10‑1966 he demanded return of the excess amount of rent realised by the respondent over and above the latest assessment and offered payment at the rate of Rs. 11 per month. The appellant tendered rent at the rate of Rs. 20 per month even before the services of notice dated 22‑1‑1970 for the months of July. August and Septem ber, 1968 on 19‑9‑1968 and, thereafter, remitted rent by money orders every month which the respondent refused to accept. On such refusal the appellant started depositing rent in Court at the rate of Rs. 10 per month on the basis of assessment made by the Excise & Taxation Department after 1963 which was also adopted by the K. M. C.

The respondent filed Rent Case No. 1053 of 1970 on the ground of default and unauthorised consideration against the appellant. The Rent Controller by his order dated 29‑4‑1974 rejected the respondent's application holding that the appellant did not commit any default nor any unauthorised consider ation was made by him. He further held that the rent payable according to law was Re. 11 per month based on the latest assessment of the K. M. C. arid the appellant was liable to pay at the same rate from the date of transfer of the property to the respondent. Aggrieved by the order of the Rent Controller the respondent filed an appeal which was accepted by the learned Additional District Judge, Karachi as per judgment dated 7‑12‑1974, who held that the rent payable by the appellant was Re. 25 per month from 22‑2‑1962 to 26‑9‑1963 and thereafter at the rate of Re. 11 per month. It was further held that the rent for the months of July, August and September, 1 i'68 having been remitted on 19‑9‑1968, the appellant committed default in payment of rent for the months of July and August, 1968 because there being an agreement of tenancy rent was to be paid by the 5th of each month. He, further, passed order of ejectment of the appellant. The appellant has now come up in second appeal against the said order.

It is contended that in terms of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the appellant could pay rent with in 3 months of the receipt of notice under the said section which was admitted ly given by the respondent on 22‑1‑1970. The appellant had already tendered rent even prior to the service of this notice and had later deposited the same in Court before the expiry of the prescribed 3 months' period. According to the learned counsel no rent was due when rent application was filed and in fact excess rent of 42 months was still in the hands of the respondent when notice under section 30 was served and as such there was no default in payment of rent, The finding of the first Appellate Court that rent was payable at the rate of Re. 25 per month is challenged on the ground that there was no evidence in support of the same and it is based on complete misreading of Exh. 1/J dated 26‑9‑1963 by which clearly rent was revised from Re. 25 to Re. 11 per month. Besides several other contentions have also been raised by the learned counsel.

I have examined the Exh. I/J which is a letter of Assistant Assessor and Collector, Karachi Municipal Corporation dated 26‑9‑1963 and shows that rent had been confirmed at Rs. 11 per month and was payable from 1‑3‑1962. It mentions that "the original claim, therefore, stands amended" and the said letter is stated to have been issued with reference to some applica tion dated 1962, the date in the letter being not readable. The rent fixed as per Exh. 1/B dated 31‑8‑1962 was also effective from 1st March 1962 and the letter stated that "Objection to the assessment, if any, should be made in writing from the date of receipt of the notice." Reading the said two Exhibits it is clear that the rent earlier fixed as per Exh. 1/B was revised at Re. 11 per month as per Exh. 1/J and accordingly the finding of the learned First Appellate Court that there was nothing on record to show that the monthly assessment as given in Exh. I /B was ever revised by any competent authority is not correct and the finding that rent was payable at the rate of Re. 25 per month from the date of transfer up to‑date of issue of Exh. 1/1 was unwarranted. The said finding is also contradictory because at one place it has been held that there was nothing to show that rent fixed as per Exh. 1/B was revised while little later it Is said that rent as from the date of l /J was fixed at Rs. 11 per month.

On the issue of default it has been held that in so tar as the time for payment of rent is concerned the same would be governed by the agreement of tenancy and was payable within 15 days of the date fixed in the agreement and since rent for the months of July and August, 1968 was paid on 19‑9‑1968 the appellant had committed default. In so far as quantum of rent fixed in the agreement is concerned it is held that since the agreement provided pay ment of rent in excess of the rate as per latest Municipal assessment the same was not binding upon the tenant as he would be deemed to have contracted himself out of the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned Additional District Judge however did not proceed further to examine that under the provisions of same section 30 rent could be tendered within 3 months of the service of notice given under the said section and in this case admittedly the appellant had not only tendered rent even before service of said notice on 22‑1‑1970 but A there was, in fact, excess amount in the hands of the respondent. The appel lant on these facts cannot be said to have committed default in payment of rent which is the only ground on which the appeal had been allowed.

In the result this appeal succeeds and the order of the learned IIIrd Additional District Judge dated 7‑12‑1976 is set aside. The learned counsel, prayed that the amount paid in excess of the money lying deposited in Misc 43/70 and Rent Case 1053/10 be ordered to be refunded/adjusted against fur ther rent payable by the appellant. It is a matter of accounts and therefore specific direction can be issued. However, it would suffice to say that the appellant will be entitled to adjust the amount of rent now payable by him against the amount lying deposited in the aforesaid proceedings.

There will be no order as to costs.

S. Q. Appeal accepted.

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