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S. A. O. No. 1 of 1963, decided on 26th March 1963.

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---- Point not raised in grounds of appeal can be permitted to be raised inadvertantly missed‑Plea never taken in lower Court‑Cannot be permitted to be raised for first time in appeal.

S. 13 (6) read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 30‑Discretion of Rent Controller to fix tentative rent under S. 13 (6)‑Not taken away by S. 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958.

Mistri Allah Din v. Mst. Kaniz Begum P L D 1961 Lah. 410 considered.

Anwar‑ul‑Hassan for Appellant.

Muhammad Saleem Aslam Peerzada for Respondent.

The appellant had purchased evacuee shop No. 149, Ahmadpur Past and he was given the provisional transfer order on the 19th May 1961. This shop has been in possession of Sardar Muhammad respondent as a tenant under the Custodian's Department. On the 1st of January 1962, Fazal Hussain the owner of the shop sent a notice to the tenant demanding Rs. 100 as monthly rent. Since the tenant failed to pay the rent the appellant filed a petition in the Court of Rent Controller, Ahmadpur East, seeking the ejectment of the tenant. Sardar Mohammad in his written statement showed willingness to pay the rent at the rate of Rs. 5‑6‑0 which he had earlier been paying to the Custodian's Department. He admitted the receipt of the notice and pleaded that he was always ready to pay Rs. 5‑6‑0 which was reasonable rent. The Rent Controller passed an order on the 5th of July 1962, directing the tenant to deposit the arrears at the rate of Rs. 15 p. m. within 10 days and to pay the future rent before the 5th of every month. The case came up before the Rent Controller on the 8th of October 1962, when it was discovered that Sardar Muhammad tenant had not deposited the arrears of rent. Consequently the Rent Controller struck off the defence and directed his ejectment forthwith. Sardar Muhammad filed an appeal against this order which was accepted by the learned District Judge (the Appellate Authority) by his order dated the 18th of January 1963. The learned District Judge held that the Rent Controller should have fixed the tentative rent at the rate of Rs. 5‑6‑0 p.m. it should not have been fixed at Rs. 15 p. m. He remanded the case to the Rent Controller for further proceedings. The Rent Controller was directed to frame an issue as regards the fair rent of the shop in dispute also. This is a second appeal against the order of the learned District Judge.

2. The learned counsel for the appellant has urged that the defendant‑respondent in his written statement had shown willing ness to pay the rent that might be fixed by the Court. That when the tentative rent was fixed by the Rent Controller he did not object to the amount of the rent. He did not even file an appeal against this order. That when his statement was recorded on the 8th of October 1962, he admitted having not deposited the rent as directed by the Court but he did not raise any objection that the rate of the rent was arbitrarily fixed or that the amount was excessive. That the respondent when he filed the appeal in the Court of the learned District Judge did not take up any of the above pleas but instead he urged in his grounds of appeal that the order of the deposit of rent was not announced in Court and he did not know of the order, therefore, he should not be penalised for making a default. That the respondent had also urged in his grounds of appeal that he was ordered to deposit rent on that day in other case as well at the rate of Rs. 15 and that he had deposited the rent in that case and he failed to deposit the rent in the present case because he was mislead due to the above circumstances. It is urged by the learned counsel that the lower appellate Court was not justified in deciding the appeal on a matter which had not been urged by the respondent in his grounds of appeal and nor this was his position during the proceedings before the Rent Controller. That the authority relied upon by the appellate Court instead of supporting the respondent supported the appellant. The learned counsel for the respondent, in reply, urged that the appellate Court had jurisdiction to permit the raising of a point during arguments which had not been raised in the grounds of appeal. The learned counsel has also supported the judgment of the learned appellate Court on merits. It has been urged that section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, read with section 13 (6) of the West Pakistan Urban Rent Restric tion Ordinance of 1959 made it clear that in case of evacuee property the tenant cannot be ordered to deposit the arrears of rent at a rate higher than the rent which the tenant was paying to the Custodian's Department. That the order of the Rent Controller asking for the deposit of the arrears of rent at the rate of Rs. 15 p.m. was passed without there being any basis for it and that the discretion had been arbitrarily exercised in fixing the rent at Rs. 15 p.m. That a landlord could claim enhanced rent from a tenant of the evacuee property only if higher rent had been assessed by the Municipality or a local authority. Since that had not been done the landlord could not have claimed higher rent than Rs. 5‑6 and the Rent Controller was therefore, incom petent to fix it at a higher rate than that. I have very carefully considered the contentions raised by the two learned counsel. There is no doubt that an appellate Court can permit the raising of a point at the time of the arguments even if it had not been raised in the grounds of appeal but the point should be one which is available to the party and had been inadvertently missed in the grounds of appeal. In the present case, I find that this was not the position taken up by the respondent either before the Rent Controller or before the learned appellate Court at the time of the filing of the appeal. He had not objected to the fixation of Rs. 15 as the tentative rent. The order for fixing the tentative rent is not in the nature of the final fixation of the rent because while deciding the case finally the Rent Controller could have still raised it or reduced it. The scheme of the Rent Restriction Ordinance is such that it makes it incumbent upon a tenant to comply with an order passed by the Rent Controller under section 13(6) failing which his defence has to be struck off and his ejectment would follow. The learned appellate Court has relied on Mistri Allah Din v Mst. Kaniz Begum (P L D 1961 Lah. 410). I have carefully read this authority. I consider that this does not lay down the proposition as adopted by the appellate Court. The provisions of section 30 of the Displaced Persons (Compensation and Re habilitation) Act, cannot override the provisions of the Rent Restriction Ordinance. The discretion given to the Rent Controller under section 13(6) for fixing a tentative rent is not: taken away by section 30 of the Displaced Persons (Compensa tion and Rehabilitation) Act. Even the authority relied upon by the appellate Court lays down that the discretion is there although it is slightly narrower than while dealing with non -evacuee property. In the authority the tenant claimed that he was liable to pay Rs. 2 while the landlord demanded Rs. 45. The Rent Controller fixed the tentative rent at Rs. 45. The High Court held that the discretion in that case had not been properly exercised because the disparity between the two figures was enormous. In the present case the tenant offered to pay Rs. 5‑6‑0 while the landlord demanded Rs. 100 and the Rent Controller fixed it at Rs. 15 p. m. If the discretion had been exercised arbitrarily the tenant would certainly have challenged this order by way of appeal. Even when the order for his ejectment was passed he did not say a word as regards the exercise of the dis cretion by the Rent Controller in the grounds of appeal. The plea taken up was that he did not know of the order requiring him to deposit the rent. This plea was on the face of it untenable because the order was passed in his presence. Thereupon, the learned counsel representing him came out with the new plea which was never the case of the respondent. In such circumstances, at appellate Court would not be justified to permit the appellant to make out a new case at the time of the arguments. This plea did not arise out of the proceedings in the lower Court. Consequently I am of the view that the appellate Court should not have allowed the raising of this plea at the stage it was urged. Even on merits, as I have already discussed, the discretion exercised by the Rent Controller could not be said to have been arbitrarily exercised. The tenant should have complied with the order of the deposit of rent failing which the law provided the striking off his defence and his ejectment. I would, therefore, accept this appeal, set aside the order of the Appellate Authority and restore the order passed by the Rent Controller.

K. B. A./A. H. Appeal accepted.

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