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Second Rent Appeal No. 466 of 1969, decided on 30th ,August 1976.

‑‑ S. 13‑‑Rent‑Assessment‑Municipal Corporation competent to entrust some of its working to other agencies or adopt their assess ment.

Abdul Rashid v. Abdul Qadeer Shah P L in 1966 Pesh. 89 and Habib Ullah v. Mahmud Ahmed Khan P L D 1973 Note 109 at p. 165 ref.

‑‑ S. 13 read with Displaced Persons (Compensation and Rehabilita tion) Act (XXVIII of 1958), S. 30‑Notice under S. 30, Act XXVIII of 1958‑Not invalidated due to demand being in excess of payment due.

Mian Rehmat Ali v. Khatrja Hakeem P L D 1967 Lab. 39 and Mazhar Ali Azhar v. Dr. Intizarul Islam Qureshi P L D 1971 Lah. 104 ref.

‑‑ S. 13‑Tenant‑Eviction of‑Pendency of any proceeding‑Does not absolve tenant from paying rent as assessed at time of demand.

Abdul Bashir v. Muhammad Rqfiq Khan Sherwani P L D 1974 Kar. 451 and Messrs Yousaf & Co. v. Mst. Rashida Begum P L D 1975 Kar. 684 ref.

S.13‑Landlord‑Title. determination of‑Payment of rent‑Tenant cannot defer on ground of his having to satisfy himself about title of landlord.

Shaikh Ghaus Bakhsh v. & S. Muhammad Abdul Naim P L D 1976 Kar. 169 ref.

Shahenshah Hussain for Appellant.

Ali Akbar for Respondent.

Date of hearing :23rd August 1976.

The circumstances in which this second appeal has arisen are as under

2. House No. II‑A‑ 6. B/5/31‑2/2r Arambagh, Karachi, was transferred to the appellant by the Settlement Department as per P. T. O. dated 4th of March, 1963. The said house happened to be in the occupation of the respondent. On 16th October, 1965, the appellant sent a registered notice to the respondent informing him that the said house had been transferred to him by the Settlement Department, and an attested copy of the P. T. O. was enclosed with the notice. It went on to say that the rent of the property had been assessed by the authorities at the rate of Rs. 75.00 per month, but was reduced to Rs. 50.00 per month on appeal filed by the respondent by order dated 10‑3‑1965. The rent due from the date of the transfer up to date should therefore be paid to the appellant within a period of three months at the latest. The letter was acknowledged by the respondent on 6‑11‑1965. It mentioned that, as still an appeal had been preferred against the order of the assessing authorities, so there was no finality attached to the same. Willingness was, however, shown to pay the rent at the rate of Re. 19.75 per month as was payable to the Custodian, but on condition that the appellant produced the P. T. O. "according to law" on the 9th of December 1965, the appellant again sent a reminder to the effect that the rent of Re. 50.00 per month bad been determined by the consent of the representative of the respondent, and therefore there should be no hitch in the payment at that rate Another copy of the P. T. O. was enclosed. It mentioned that the outstanding arrears were to be paid within a period of three months from the 16th of October 1965, and, in case the rent was further reduced is appeal, the excess payment would be refunded. There was a tardy acknowledgment of this letter by the respondent on 4‑2‑1966. It contained a cheque for Re. 071.50 towards the rent of 36 months commencing from 4‑3‑1963 to 4‑2‑1966 at the rate of Rs. 19.75 per month. On the 15th of June 1966, there was another letter from the appellant. It contained a protest that the payment was not proper, and even the cheque had not been issued in the name of the proper person, and, if the payment was not made within one week, proceedings will be taken for ejectment. As the demand remained unheeded, the appellant, on 18‑7‑1966, filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, for eviction of the respondent from the premises in question on grounds of default, referred to earlier. The contentions came to be denied in the written statement filed by the respondent. The evidence in the case was offered by the parties themselves and the documents were produced on the record by consent.

3. The learned Rent Controller found that the house In question was assessed by the Excise & Taxation Department at Rs. 45.00 per month, and the same had been approved and adopted by the Karachi Municipal Corporation. The respondent was liable to pay in accordance with this latest assessment, and, as he had tailed to do the same, he was a wilful defaulter. Accordingly. the learned Rent Controller ordered that the possession of the premises be delivered to the appellant within two months from the date of the order. On appeal, the Additional District Judge set aside the order of eviction, and allowed the appeal on two considerations. Firstly that the rent determined by the Excise & Taxation Department was not the rent assessed by the Karachi Municipal Corporation, and therefore the respondent was not liable to pay at that rate. Secondly, the notice dated 16th October, 1965 was invalid, as it claimed rent at the rate of Rs. 75.00 per month, and not at the rate of Rs. 50.00 per month, and it was only on the 9th of December, 1965 that the rent was demanded at the rate of Rs. 50.00 per month. The learned Additional District Judge, therefore. was of the opinion that, as the cheque had been received on 4th February 1966, within a period of less than two months, no fault had been committed otherwise too. It is this order which has been challenged in this appeal.

4. According to section 30, clause (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, any person in possession of an evacuee property was deemed to be a tenant of the transferee on the same terms and conditions on which he held the property immediately before transfer. However, sub‑clause (a) provided that it shall be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the Municipality or local authority, as the case may be, for other properties in the locality generally. The words "carried out by the Municipality" was substituted for the assessment of the Municipality in September 1963, and it is this proviso, which will be relevant. It was contended by Mr. Ali Akbar, learned counsel for the respondent, that the entire case of the appellant was that the rent of Rs. 50.00 per month had been determined by the Excise & Taxation Department, and not expressly by the Municipal Corporation of Karachi. He also referred to the case of Abdur Rashid v. Abdul Qadeer Shah (P L D 1966 Pesh. 89) to the effect that the Excise & Taxation Department was not a local authority. It is not necessary‑ to examine the contention, in view of the fact that the appellant had filed a demand note from the Municipal Corporation, Karachi, for the year 1967‑68. Incidentally, this mentions also the taxes levied for the years from 4‑3‑1963 onwards, which was the date of the transfer to the appellant. This document was fled along with the memorandum of appeal end bears the seal of the Corporation and also the signature of the assessing officer of the division. It will be in the fitness of things to take judicial notice of this fact, as was done in Habib Ullah v. Mahmud Ahmed Khan (P L D 1973 Note 109 at p. 165). Otherwise too. there seems to be no reason as to why the Municipal Corporation could not entrust some of its working to other agencies, or, adopt their assessment. A It is also an admitted positron that the assessment was made at the rate of Rs. 50.00 per month, but there was a rebate of Rs. 5.00 per month. The view, which found favour with the learned appellate Court, that the rent payable was not Rs 45.00 per month, cannot be sustained.

5. The appellant had never demanded rent at the rate of Rs. 75.00 per month, as observed by the learned Additional District Judge. The notice, referred to earlier, bad made a clear mention that the rent had been reduced in appeal earlier. Otherwise too, if the demand was in excess of the payment B due, the notice would not become invalid. There are a number of decisions from these Courts to that effect. (See Mian Rehmat Ali v. Khetija Hakeem (P L D 1967 Lah. 29) and Mazhar Ali Azhar v. Dr. Intizarul Islam Qureshi (P L D 1971 Lah. 104). There is also nothing to show that there was any appeal filed after the rent had been reduced to Rs. 30.00 per month. But the pendency of any proceedings also could not absolve the respondent from paying the rent as assessed at that C time (See Abdul Bashir v. Muhammad Rafiq Khan Sherwani (P L D 1974 Kar. 451) and Messrs Yousuf & Co. v. Mst. Rashida Begum (P L D 1975 Kar. 684)). The finding of the learned Additional District Judge, therefore, that the period of three months under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 did not commence from the 16th of October 1965, is without any basis. The respondent could not defer the payment on the ground that he D had to satisfy himself about the title of the appellant either. (See Shaikh Ghaus Bukhsh v. K. S. Muhammad Abdul Naim (P L D 1976 Kar. 169). The notice contained a mention of the fact that an unattested copy of the P. T. O. had been enclosed along with the letter, No payment even at the rate of Rs. 19.75 per month was made. The payment came as late as 4‑2‑1966. and that too at an improper rate. Under the circumstances, the respondent had lost the protection that was open to him under the Scheme of the Displaced Persons Act. He has to think himself for the consequences which have ensued.

6. In the result, the order of the Additional District Judge is set aside, the order of the learned Rent Controller is restored and the appeal is allowed. There will, however, be no order as to costs. The eviction will not be effected till three months from the date of this order.

S. A. H. Appeal allowed.

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