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First Rent Appeals Nos. 887 and 888 of 1982, decided on 30th September, 1984.

---Ss. 16(2) & 21--Ejectment--Failure to deposit tentative rent--Amount determined by Rent Controller being fair and reasonable--Tenant failed to appear before Court despite service of notices--No valid reason for non-payment stated--Defence struck off--Ejectment order, held, proper and justified in circumstances.

Akhtar Jehan Begum v. Muhammad Azam Khan P L D 1983 S C 1 and 1979 S C M R 496 ref.

Akhlaq Ahmed Siddiqui for Appellant.

Hassan Jafar for Respondent.

Date of hearing: 30th September, 1984.

The respondent filed an application for ejectment of the appellant from a portion of the house situated on Plot No. 26 Row No. 10 Block No. 5A Nazimabad, Karachi. The appellant admitted the tenancy but denied the rate of rent claimed by the respondent. The Controller by order dated 8-12-1981 held that the appellant should deposit rent at Rs. 250 p.m. from 10-12-1976 to 30-11-1981 on or before 30th January, 1982 and the future rent be deposited on or before the 10th of each succeeding month. The appellant filed a review application on 21-11-1981 which was dismissed on 30-1-1982 and the case was fixed for evidence of the respondent on 22-2-1982. On that date the appellant was absent and the respondent filed an application under section 16(2) alleging that the appellants have defaulted in complying with the order dated 8-12-1981. Several notices were issued to the appellant but he remained unserved, nor did he attend the Court. As the notice of application was refused by the appellants it was pasted on his outer door and the learned Controller held that service good. No objection was filed by the appellant and as the Nazir had reported that the order for deposit has not been complied with, by the impugned order dated 31-7-1982, the learned Controller struck off the defence. From the record, it seems that after the review application was dismissed on 30-1-1982 the appellant has never appeared before the Court. Although the matter was fixed for recording evidence on 22-2-1982 on which date the respondent filed application under section 16(2), the appellant did not attend the Court.

Mr. Akhlaq Ahmed the learned counsel for the appellant contended that while determining the rent tentatively the learned Controller has not taken into consideration the facts on record. In this regard the learned counsel has contended that there was no documentary evidence on record either to prove the rate of rent or that the respondent had realised the rent. The learned counsel contended that in these circumstances the appellant's claim that the rent was Rs. 200 should have been accepted. The respondent had claimed rent @ Rs. 350 p.m. and had also produced P.T.I. issued by the Excise and Taxation Department according to which the rate of rent was Rs. 157 p.m. The learned Controller after considering all these contentions, and also considering the area of the plot the locality in which it was situated and the assessment of the Excise and Taxation Department fixed the rent 0 Rs.250 p.m. The determination of the rent at this stage is only tentative, and is subject to final decision by the Court. Except P.T.I. the parties had produced no documentary evidence in support of their claim. Neither any receipt was produced as according to the appellant, it was never issued, nor any agreement of tenancy was produced because no such agreement was in existence. Therefore the Controller was left with no authentic evidence and at that stage he had only to balance the material produced before him, and to come to a reasonable amount which in his opinion, and in the facts and circumstances of the case should be deposited by the appellant. In fixing the rent at Rs. 250 p.m. the learned Controller has neither exceeded his powers nor ignored any part of the evidence produced before him, nor he was arbitratory and unreasonable. Rs. 250 was a fair assessment and a reasonable amount between the two conflicting claims of Rs. 350 and Rs. 200.

Mr. Hassan Jaffer the learned counsel for the respondent has relied on Akhtar Jehan Begum v. Muhammad Azam Khan P L D 1983 SC 1 where relying on 1979 S C M R 496 which was a case under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 it was held that the order passed under section 13 (6) was tentative in nature and the Controller was not required to determine the quantum or rate of rent, and only an approximate amount has to be fixed. Law on this point is well settled and no exception can be taken to the order passed by the learned Controller.

The learned counsel for the appellant has not given any valid explanation for not depositing the rent in terms of the order passed by the Controller. The only ground placed before me is that as review, application had been filed, time should have been extended. The review application was incompetent, therefore, if the Controller did not extend the time on that ground no illegality has been committed.

The appellant in his memo of appeal as well as during the argument has not challenged that notice of application under section 16(2) was not served or that opportunity of hearing was not given to him, or the order was passed in his absence. From the record it is clear that after the review application was dismissed the appellant did not appear on any date of hearing, and in spite of notices served by fixation, which was refused by him, he did not appear in Court to contest the matter. In these circumstances, the order of the learned Controller is proper and justified. The appeal is dismissed. Four months time is allowed to the appellant to vacate the disputed premises.

M. I. Appeal dismissed.

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