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First Rent Appeal No.455 of 1982, decided on 18th January, 1987.

---S.8--Fair rent--Rent to be fixed by agreement of parties and in case of dispute fair rent would be determined by Rent Controller-- Landlord is not entitled to claim anything in excess of mutually agreed rent or fair rent.

---S.8--Rent--Increase of rent in addition to mutually agreed rent is invalid.

E.A. Evas v. Muhammad Ashraf P L D 1964 S C 536 ref.

---S.8--Fair rent--Rent Controller, held, was alone empowered to, fix fair rent--Attempt by parties to determine by agreement fair rent out of Court was not binding--Even if fair rent had not been fixed by Pent Controller, landlord could not reasonably expect to receive from tenant anything more than fair rent determinable under Ordinance--Agreement by parties about fair rent could not be given effect to, and agreement in that regard would be incapable of performance.

---Ss.15 & 21--Ejectment--Default in payment of rent--Landlord demanding more rent than was paid to him previously--Tenant ready and willing to pay rent at the former rate--Tenant remitted rent through money order which was refused by landlord--Tenant then started depositing rent with Nazir of Civil Court and continued to pay rent as such--Held, tenant could not be said to have committed default in payment rent in circumstances--Order of Rent Controller, dismissing eviction application of landlord on ground of default was upheld.

Rehanul Hassan Farooqui for Appellants.

Qamar Muhammad Khan for Respondent.

Dates of hearing: 28th September and 13th October, 1986.

This First Rent Appeal is directed against the order, dated 10-3-1982 passed by the XVth Senior Civil Judge and Rent Controller, Karachi in Rent Case No.3111 of 1981 whereby he dismissed the appellant's eviction application.

The facts leading to the filing of the above appeal are that the appellant is the owner and landlord of the building known as Abbasi Manzil on Plot No.8/3 R.C. 10, Aslam Road, Ranchore Lines, Karachi and the respondent is tenant in respect of residential premises bearing No.6. The appellant filed the eviction application on the ground that the Respondent had not paid any rent after August, 1980 and had committed wilful default in payment of monthly rent due at Rs.63/- including Betterment tax from 1-9-1980 and a sum of Rs.630 was due upto 30-6-1981. The appellant averred in the eviction application that the respondent sent a letter through his advocate in which he made a false allegation about having been given receipts under threat of eviction and insisted that the rent was only Rs.18 per month. The Respondent resisted the eviction application. The appellant filed his own affidavit-in--evidence in support of the eviction application and produced receipts as Exh. 5/1 and 5/2 besides other documents as Exts:5/3, 5/4 and 5/5. The respondent filed his own affidavit-in-evidence in rebuttal besides affidavit-in-evidence of Fazal Ahmad. They were cross-examined by the learned counsel for the respective parties.

The learned Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, dismissed the eviction application vide order, dated 10-3-1982.

The appellant being aggrieved against the order, dated 10-3-1982 of the XVth Senior Civil Judge and Rent Controller, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

Mr. Rehanul Hassan Farooqi the learned counsel for the appellant has raised the following contentions:-

(1) That the impugned order is based on conjectures which have been made basis for being given rise to from the evidence on record.

(2) That the burden of proof of the allegation of the respondent that the said increase in rent was in consequence of some duress or coercion exercised on him was heavily upon him which he has not been able to discharge

(3) The learned Controller has misread the evidence.

On the other hand Mr. Qamar Muhammad Khan the learned Counsel for the respondent has submitted that the order of the learned Controller is in accord with the evidence on record.

It is an admitted position that the rent for the premises in question upto June, 1980 was Rs.18 per month. The appellant averred in his eviction application that on 19-8-1980 the respondent agreed to increase monthly rent from Rs.18 to Rs.60 per month. The respondent was also in arrears of rent for previous months and hence on receipt of arrears for previous merits, the appellant gave receipt at the old rate of rent and the appellant also returned a sum of Rs.42 to the respondent after adjustment of arrears. The appellant pleaded that the respondent had not paid rent from 1-9-1980 upto 30-6-1981 amounting to Rs.630. It is the case of the appellant that after agreeing to pay rent at the rate of Rs.60 plus Rs.3 as Betterment tax from July. 1980 and having paid at the agreed rate for July, 1980 and August, 1980 on 19-8-1980 alongwith the Betterment tax and in token of having agreed signed the counter-foil of rent receipt, produced as Annexure 'A' to the eviction application, the respondent through his advocate made false allegations about having been given receipts under threat of eviction and insisted that the rent was only Rs.18 per month. The letter of the advocate is annexed to the eviction application as annexure 'B'.

The respondent in his written statement stated that the respondent had approached the appellant several times to correct the receipts issued to him. The appellant refused to do so and demanded rent at Rs.60 per month which the respondent never paid and/or agreed to pay. The Respondent sent a legal notice besides sending money-order on 22-9-1980 but the money order was refused and returned by the appellant. The Respondent started depositing rent in Court in Miscellaneous Rent Case No.5686 of 1980.

Section 15(2)(ii) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) provides for eviction of the tenant if he has failed to pay rent within fifteen days after the expiry of the period fixed in the agreement of tenancy for payment of rent or in the absence of such agreement within sixty days after the rent has become due for payment. Section 7 of the Ordinance provides that no landlord shall charge or receive rent at the rate higher than mutually agreed upon by the parties and if the fair rent has been fixed by the Controller at the rate higher than the fixed rent. Fair rent is defined in the Ordinance and which means the fair rent of any premises determined by the Controller.

The legal position is that the rent may be fixed by the agreement of the parties and in case there is a dispute, the fair rent is to be determined by the Controller under section 8 of the A Ordinance. No landlord is entitled to claim anything in excess of the mutually agreed rent or the fair rent. The appellant averred in his application that the respondent had agreed to pay Rs.60 per month. The Respondent in his written statement as well as in his notice stated that he did not agree to such an agreement. His submission is that any agreement for the payment of any sum in addition to rent or of rent in excess of such mutually agreed rent that is Rs.18 shall he null and void. Such increase in rent or such a contract is invalid. If an-authority is needed, a case E. A Evas v. Muhammad Ashraf PLD 1964 S C 536 can be cite

Under the scheme of the Ordinance fair rent of a given premises is that amount only which the Controller determines. Until the fair rent is fixed by the Controller, the contract between the landlord and tenant determines the liability of the tenant to pay rent. That is clear from the terms of section 8 of the Ordinance. The section clearly indicates that the Controller atone has the power to fix the fair rent, and it cannot be determined out of Court. An attempt by the parties to determine by agreement the fair rent out of Court is not binding.

The problem can also be looked at from a different angle. When the Ordinance provides fixation of fair rent, which alone and nothing more than which the tenant shall be liable to pay to the landlord, it does so because it considers the measures a of the fair rent prescribed by it to be reasonable. It lays down the norm of reasonableness in regard to the rent payable by the tenant to the landlord. Any rent which exceeds this norm of reasonableness is regarded by the legislature as unreasonable or excessive, when the Legislature has laid down this standard of reasonableness. Would it be right for the Controller to say that the landlord may reasonably expect to receive rent exceeding the measure provided by this standard Would it be reasonable on the part of the landlord to expect to receive any rent in excess of the fair rent or norm of reasonableness laid down by the legislature and would such expectation be countenanced by the Controller as reasonable The legislature obviously regards recovery of rent in excess of the fair or mutually agreed rent as exploitable of the tenant and would it be proper for the Controller to say that it would be reasonable on the part of the landlord to expect to recover such exploitative rent from the tenant " I am, therefore, of the view that, even if the fair rent has not been fixed by the Controller, the landlord cannot reasonably expect receive from a tenant anything more than the fair rent determinable under the Ordinance. I am also of the view that the alleged agreement; dated 19-8-1980 could not be given effect to, the contract has become' incapable of performance.

It is an admitted position that the appellant demanded a sum of Rs. 60 while the rent was Rs.18 per month, the tenant not only y offered the rent at the rate of Rs. 18 but sent through money-order which was refused and thereafter he started depositing the same with the Nazir of the Civil Court. At its worst there was a bona fide, dispute as regards the rate of rent, the tenant would not invite: upon himself an eviction application by withholding Rs. 42 unless he was under a bona fide impression that he had justification for the same.

The problem can also be looked at from a different angle. The appellant demanded the rent at the rate of Rs. 60. The respondent was not only ready and willing to pay Rs. 18 per month but had actually sent rent through money-order which was refused by him. This money order was sent on 22-9-1980. It is also an admitted position that the respondent started depositing rent in Miscellaneous Rent Case No. 5686/80. This was done within sixty days from the date when it was due and payable. It is also an admitted position that he continued to pay the same. In these circumstances it cannot be said that the respondent had committed default in payment of rent. It cannot therefore, be said that the learned Controller was wrong in denying eviction of the tenant on the ground of default in payment of rent. I am of the view that the learned Controller has, rightly dismissed the eviction application.

For the reasons stated above, the appeal is dismissed with no order as to costs.

M.Y.H./F-8/K Appeal dismissed.

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