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Second Appeal No. 18 of 1979, decided on 24th January, 1985.

--S. 15(4)--Ejectment application--Default in payment of rent-Rent Controller after recording of evidence led by parties coming to conclusion that rent of premises was Rs. 5 p.m. and that default was committed by tenant--First Appellate Court reversing finding of Rent Controller on issue of default and holding that rent of premises was Re. 1 p.m. and since rent realised @ Rs. 5, amount paid in excess was liable to be adjusted and consequently tenant not defaulter--Reversal of finding of Rent Controller on said point based on misappreciation of evidence and non-consideration of very important piece of admission made by tenant in his evidence before Rent Controller that rent of premises was @ Rs. 5 p.m.--Appellate Court also failing to notice provisions of S. 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958 according to which transferee landlord was entitled to charge rent of premises according to latest assessment of local authority and Municipal Committee--Order of First Appellate Court reversing finding of Rent Controller set aside and order of Rent Controller allowing application restored in circumstances.

Nooruddin Sarki for Appellant.

Muhammad Sher Awan for Respondent.

Date of hearing: 24th January, 1985.

This second appeal under section 15(4) of the Sind Urban Rented Premises Ordinance, 1959 is filed by the appellant tenant challenging the order of the District Judge acting as the first appellate Court, dated 19-11-1978 wereby he confirmed the ejectment order passed against the appellant by the Rent Controller on the ground of default.

The property in suit which bears C.S. Nos. 432-433 in Ward B, Kumber, was transferred to the father of present respondent under the Provisions of Displaced Persons, (Compensation and Rehabilitation) Act, 1958 on 16-5-1966. In his application before the Rent Controller filed under section 13 of the Ordinance the respondent pleaded that he served a registered A/D notice on the appellant under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on 5-4-1973 demanding rent at the rate of Rs. 5 per month and informing about the transfer of the property in favour of the respondent's father. It was further alleged in the application that in spite of receipt of the said notice the respondent failed to pay rent at the rate of Rs. 5 per month. Apart from allegation of default the respondent also alleged in his application damages allegedly caused by the appellant to the property in his occupation. The Rent Controller after recording evidence of the parties came to the conclusion that a valid notice under section 30 of the D.P. Act, 1958 was served on the appellant and that the rent of the premises was Rs. 5 per month and consequently he found that default was committed by the appellant in payment of rent from May, 1974, up to the date of filing of the ejectment case which was instituted in 1977. In arriving at this conclusion the Rent Controller referred to the admission of the respondent in evidence that he had paid rent from May, 1974 to December, 1974 at the rate of Rs. 5 per month and further admission of the respondent that in the year 1968 the Chairman, Municipal Committee, Kumber, on the application of the appellant fixed the rent of the premises at Rs. 5 which he used to pay. The first appellate Court while reversing the finding of the Rent Controller on the issue of default held that the rent of the premises occupied by the respondent was Re.l per month and not Rs. 5 as claimed by the landlord and as the rent realised by the respondent was at the rate of Rs. 5 therefore' the rent realised in excess of Red was liable to be adjusted and as such there was no default on the part of the appellant. The first appellate Court also took into consideration that the respondent before institution of rent case sent two money orders for Rs.57.75 and Rs. 40 each but was resfused by the appellant. He accordingly held that the amount paid by the respondent was clearly in excess of the rent legally due against the respondent. The reversal of the finding of the Rent Controller by the first appellate Court is based on misapprecia tion of evidence and non-consideration of very important piece of admission made by the respondent in his evidence before the Rent Controller. The first appellate Court also while reversing the finding of the Rent Controller on the issue of rate of rent failed to notice the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 according to which a transferee landlord was entitled to charge rent of the premises transferred to him under the provisions of the aforesaid Act on the basis of the latest assessment of the local authority or the Municipal Committee as the case may be. In f the present case the respondent clearly admitted in his evidence that after transfer of property he was paying rent to the appellant at the rate of Rs. 5 per month. He also categorically stated in his evidence that on the application of the applicant the Chairman of Municipal Committee, Kumber, fixed the assessment of the property as Rs'. 5 and that after the assessment of the Chairman he used to pay at the rate of Rs.5 per month to the landlord. In view of these important admissions made by the respondent in his evidence before the Rent Controller there was hardly any room for coming to the conclusion that the rent of the premises occupied by the respondent was Re. 1 per month. It may be mentioned here that firstly, the document which was relied upon by the first appellate Court was a letter issued by the Deputy Settlement Commissioner, addressed to the son of the respondent and in which it is allegedly shown that the rent of the premises in occupation of the respondent is Rs. 12 per annum. This piece of evidence was rightly excluded from consideration by the Rent Controller as neither the person to whom this letter was addressed was examined in evidence nor anybody from the office of the Deputy Settlement Commissioner was produced to prove this letter. I have found that this letter was taken on record by the Rent Controller subject to the objection which was raised by the counsel of the appellant at the time of its production. Apart from it this piece of evidence relied by the first appellate Court is in contradiction of the stand of the respondent that the rent of the premises was Rs. 1.75 per month.

In view of above discussion there was hardly any justification for reversal of the finding of the Rent Controller on the issue of default by the first appellate Court. No other ground is urged. I accordingly accept the appeal, set aside the order of the first appellate Court and restore that of the Rent Controller. The respondent is however allowed four months time to vacate the premises subject to his depositing monthly rent in Court as directed by the Rent Controller. There will be no order as to costs in the circumstances of the case.

M.Y.H. Appeal accepted.