REHMATULLAH Versus FAZAL-E-HAQUE

This appeal is directed against the order, dated 9‑5‑1982 for striking off defence of the appellant 'on the ground of default of the tentative rent order, dated 3‑5‑1982 passed in Case No. 5776/78 by the learned VIII Senior Civil Judge and Rent Controller, Karachi.

(b) Brief facts leading to the filing of the above appeal are that the respondent filed the aforesaid rent case for ejectment on the ground of default. The present appellant denied the relationship. The learned Rent Controller framed a preliminary issue on the question of relationship. The respondent examined himself, whereas the appellant examined himself. The learned Rent Controller after hearing the parties, by an order, dated 1‑8‑1979, held that the relationship of that of landlord and tenant between the parties existed.

(c) After that he passed the above tentative order, dated 3‑5-1982 and ordered the appellant to deposit the arrears of rent at the rate of Rs.300 p.m. for the period commencing from 23‑‑6‑1977 to 30‑4‑1982, amounting to Rs.17, 480 though it was averred by the appellant that the monthly rent was Rs.27 on the basis of the latest assessment. Since the appellant had not complied with the above tentative rent order, the learned Rent Controller upon the respondent's application passed the aforesaid order for striking off the appellant's .defence. The appellant being aggrieved by the above order has filed the present appeal.

2. (a) In support of above appeal Mr. G.M. Qureshi, learned counsel for the appellant has argued as follows:‑‑

(i) That the question of relationship was not correctly decided.

(ii) That the tentative rent order was illegal as the rate of rent at Rs.300 p.m. was fixed without having any material.

(b) On the other hand Mr. Khalid Athar, learned counsel for the respondent has contended as under:‑‑

(i) That the queetion of relationship has been correctly decided by the learned Rent Controller as per evidence on record.

(ii) That the appellant was to comply with the above tentative rent order without prejudice to his contention that the rent was Rs.27 p. m.

3. As regards the question of relationship, it may be observed that I have gone through the evidence on record and find that the respondent had produced a photo copy of sale‑deed. dated 23‑6‑1977 Exh. 5‑A, a 'certified copy of the extract from the City Survey Office Exh. 5‑B, a copy of the notice sent to the appellant under section 13‑A and its registration slip. Against the above evidence, the appellant in his testimony had asserted that he was paying rent to one Muhammad Saeed but no document was produced in support of the above averment nor any body on behalf of said Muhammad Saeed was examined. The finding of the learned Rent Controller on the question of relationship seems to be in consonance with the evidence on record. 1, therefore,1 concur with the above finding.

4. As regards the default of the tentative order, it may be observed that plea taken by the appellant before the learned Rent Controller was that the rent fixed by the Excise and Taxation Department was at. Rs.27 p.m. whereas the respondent was claiming rent at the rate of tts.300 p. m. In support of the above averment, he had produced alleged paid‑up challan of the property tax. The parties were at issue as to the rate of the rent and the variance in their respective stand was to the extent of more than 10 times. The learned Rent Controller should have determined tentative rent after having some material before him as to the rate of‑ rent. The tentative rate of rent fixed by him at the rate of Rs.300 p.m. for a flat situated at Pakistan Chowk, Karachi seems to be without any basis.

In my view, under section 16(1) of Sind Rented Premises Ordinance, the Rent Controller is obliged to apply his mind properly for determining the rate of rent in case of dispute as to the rate of rent between the parties. Though such determination is tentative and is to be made in summary manner, but it should be based on some material and should have nexus with the prevalent rate of rent of the L type and size of the premises in dispute in the locality concerned and with the latest assessment of the Excise & Taxation Department in case the premises involved was an evacuee. property transferred under the settlement scheme. Since ‑ the above tentative rent order was not in terms of the above section of the Ordinance. I allow the above appeal and set aside the order under appeal and remand the case to the learned Rent Controller with the direction to pass a fresh tentative rent order after giving opportunity to the parties to produce material as to the rate of rent.

The appeal stands disposed of with no order as to costs.

H. B. T, Appeal allowed.