' This is an appeal from an order of Mian Abdul Rehman, Additional District Judge, Lahore, dated 9- 6-1977, affirming an order of Mr. Riaz Ahmed, Rent Controller, Lahore dated 16-11-1976, whereby he accepted the respondent's application for ejectment and directed the appellant to deliver the possession of the shop in dispute to the respondent.
2. The facts of the case are that the respondent filed an application for ejectment against the appellant on 26-6-1968, on the ground of default in the payment of rent, and requirement of the shop for personal need. The monthly rent of the shop in dispute is alleged to be Rs, 125 p.m. The appellant denied that there was a relationship of landlord and tenant existing between the parties.
Mr. Ata Muhammad Naz, Rent Controller, Lahore, ordered the appellant's ejectment on 5-12-1974, after finding that a relationship of landlord and tenant did exist between the parties.
3. The respondent's case was that he had purchased the property, of which the shop in dispute is a part, from its original owner Mst. Sultana Begum through a registered sale deed (Exh. A. W. 3/1).
Before selling the property to the respondent, Mst. Sultana Begum had mortgaged the same to Muhammad Irshad. The respondent had also got it redeemed by paying the mortgage amount to Muhammad Irshad, whose Special Attorney Haji Abdul Latif (A. W. 1) had made an entry at the back of the mortgage deed (Exh. A. 1) showing the repayment of Rs, 1,700 and the redemption of the mortgage. While the property remained mortgaged, the said Haji Abdul Latif (A. W. 1) had been receiving the rent of the shop on behalf of Muhammad Irshad from the appellant, and making a note of the receipts at the back of the same mortgage deed (Exh. A/1).
4. It, is also the respondent's case that he had sent a notice dated 29-11-1966 to the appellant under section 13(A) of the West Pakistan Urban Rent Restriction Ordinance through Ch. Abdul Ghafur, Advocate informing him of the purchase of the property and demanding rent, and that the appellant had sent a reply to this notice (Exh. A. W. 6/1) dated 10.12-1966, through Mr. Zaheer-ul- Haq, Advocate (A. W. 6). In this reply it had been stated on behalf of the appellant that as the property was under a mortgage with Muhammad Irshad, the appellant was paying rent to him regularly as from 9-8-1965. It had also been asserted that the appellant was not aware of the property having been sold to the respondent, and that it was necessary that some settlement be made between the respondent and the mortgagee. It was expressed in this reply to notice that the appellant had no hesitation to execute a rent note in favour of the respondent, provided the property was redeemed, because the appellant could not pay rent to the respondent as well as to the mortgagee.
5. The case of the appellant on the other hand is that there was no relationship of landlord and tenant existing between the parties. Appearing as R. W. 5, he deposed that he had never paid any rent to any one, implying that he had neither been a tenant of Mst. Sultana Begum nor of Muhammad Irshad, and that a question of being a tenant of the respondent therefore, did not arise. He also asserted that he never engaged any counsel for sending reply Exh. A. W. 6/1 to the notice allegedly sent by the respondent. The appellant's case is that no notice at all was sent to him in the year 1966. The appellant however admits that a notice dated 29-5-1968 (Exh. A. W. 7/2) was indeed sent by the respondent, and that the appellant had made a reply (Exh. R. 2) dated 27- 6-1968 through his counsel. In this reply he had totally denied that be had any connection whatsoever with the respondent, or Muhammad Irshad or Sultana Begum.
6. To strengthen his stand the respondent had also produced Abdul Ghafur, Advocate as witness (A. W. 2), who stated that he had sent a notice on behalf of the respondent landlord to the appellant. However, the learned Rent Controller by his order dated 24-1-1973, did not allow the respondent to prove this notice, on the ground that it had neither been mentioned in the ejectment petition nor in the list of reliance.
7. However on the basis of the above facts the learned Rent Controller held to the effect that there was a relationship of landlord and tenant existing between the parties, and upon this finding he ordered the appellant's ejectment.
8. The appellant filed an appeal before the lower appellate Court which was accepted on 12-6- 1975, by Mr. Jacob lssac, Additional District Judge, Lahore. The learned Additional District Judge, observing that if the Rent Controller was satisfied that a relationship of landlord and tenant did exist between the parties, held that he should have first passed an order under section 13(6) of the Rent Ordinance before ordering the appellant's ejectment. With these observations he remanded the case to the Rent Controller. Mr. Ata Muhammad Naz, the learned Rent Controller again passed an order of ejectment against the appellant on 18-7-1975, repeating his earlier finding, and holding in addition, that in view of the case-law which he quoted in his judgment, there was no necessity of passing an order under section 13(6) of the Rent Ordinance, before ordering ejectment in the circumstances of the case.
9. The appellant again filed an appeal which was again accepted, this time by Sh. Muzaffar Hussain, Additional Judge, Lahore, who by his order dated 13-6-1976, observed that the directions given by Mr. Jacob Issac, the learned Additional District Judge, who had first remanded the case, had to be followed by the learned Rent Controller before passing an order of ejectment, and remanded the case to Mr. Riaz Ahmad, Rent Controller, Lahore.
10. On 27-10-1976, the learned Rent Controller passed an order of deposit of arrears as well as future rent against the appellant. This order was not complied with by the appellant, with the result that on 11-6-1976, the learned Rent Controller again passed an order of ejectment against the appellant after striking his defence. Against this order the appellant filed an appeal which was disposed of by Mian Abdur Rehman, Additional District Judge, Lahore, whose order has been impugned in this second appeal.
11. It is contended on behalf of the appellant that the relationship of landlord and tenant does not stand established on record and as such the Rent Controller had no jurisdiction to pass an order under section 13(6) of the Rent Restriction Ordinance, and therefore there was no question of his defence being struck off on account of the non-compliance of a void order. It is submitted that there is no cogent evidence on record to show that the appellant had ever been a tenant of Mst.
Sultana Begum or of Muhammad lrshad, and as such the appellant could not become the tenant under the respondent merely on receipt of a notice from him. In any case he also denied that he had received any notice dated 29-11-1966 from the respondent through Ch. Abdul Ghafur, Advocate or that he had ever engaged Zaheerul Haq, Advocate to send reply Exh. A. W. 6/1, dated 10-12-1966. It is asserted that the notice which was allegedly sent to the appellant had not been proved, because neither its copy had been brought on record nor its postal receipt had been proved. It is also submitted that it is totally irrelevant whether the property in dispute had been purchased by the respondent from Mst. Sultana Begum or not, as he had never, been her tenant.
The sale made in favour of the respondent, could not have the effect of creating a relationship of landlord and tenant between the parties. On the basis of these facts it is submitted that the Rent Controller lacked jurisdiction to pass an order under section 13(6) of the Rent Ordinance against the appellant for a preliminary deposit.
12. So far as notice dated 29-11-1966 is concerned, it is to be observed that the learned Rent Controller by his order dated 24-1-1973, had refused to allow the respondent to prove it, on the reasoning that it had neithe been mentioned in the application for ejectment, nor in the list of reliance. In my view the document had been excluded for insufficient reasons because in proceedings under the Rent Ordinance the penal provisions of C. P. C. Are not applicable except those of Chapter VII, and of the 1st Schedule relating to appeals. The nature of proceedings for ejectment is similar to proceedings conducted before executive officers. In these circumstances, no technical objections were available for stopping the respondent from proving the copy of the notice. In any case, the reply (Exh. A. W. 6/1) to this notice having been proved by Zaheerul Haq, Advocate (A. W. 6) there is little doubt that the notice itself had been sent on behalf of the appellant. In any case what is relevant for this case are the admissions contained in this reply, which do establish that the appellant had been a tenant at first of Mst. Sultana Begum, and later on of Muhammad Irshad the mortgagee of the property. After the respondent had purchased the B property and got the mortagage redeemed, a relationship of landlord and tenant did come into existence between the parties on the service of the, notice in this behalf.
13. Learned counsel for the appellant submits that at best the admissions contained in the reply to notice Exh. A. W. 6/1 are previous statements of the appellant, which could not be made use of in view of the provisions of section 145 of the Evidence Act, which requires that unless the maker of such admissions is confronted with them while appearing as a witness, they cannot be used as substantive evidence. It is therefore submitted that there is no evidence on record to show that there is no record to show that the appellant had ever become a tenant of the respondent
14. Learned counsel for the respondent has relied on Javid lqbal v. Rana Muzaffar Khan, in which their lordships of the Supreme Court have observed to the effect that the Evidence Act is not applicable in terms to rent proceedings. He has also referred to Khadhim Mouhy-ud-Din and another v. Ch. Rehmat Ali Nagra and another, in which their Lordships of the Supreme Court have held that proceeding before a Rent Controller are such as are conducted before an executive officer. In this view of the matter, the admissions contained in Exh. A. W. 6/1 are not to be regarded as having no value, merely because the procedure prescribed c under sec ion 145 of the Evidence Act had not been followed. The reply to notice is material enough on which the lower appellate1 2 Court could have validly arrived at his findings. Learned counsel for the respondent has also referred to the testimony of Muhammad Nazir, A. W. 5, who deposed that at first Mhana an uncle of the appellant was a tenant of Mst. Sultana Begum, and later on the appellant came into the possession of the shop and started paying rent to the landlady through one Sadiq, who, in the opinion of the witness, was related to her. He also stated later on the appellant started paying rent to Muhammad Irshad through his attorney Haji Abdul Latif. Mst. Sultana Begum appearing as A. W.
3, also corroborated the testimony of A. W. 5, by stating that Sadiq was her husband's brother, and used to receive rent from the appellant on her behalf. She also stated that thereafter Haji Abdul Latif used to recover the rent. Since there is ample material on the record for the conclusion that the appellant had been a tenant under Mst. Sultana Begum, th respondent having purchased the property from her, possessed all he lessor's rights by virtue of section 109 of the Transfer of Property Act. The relationship of landlord and tenant did exist between the parties an there is no scope for the view that the order for making the deposit o arrears and future tentative rent under section 13(6) of the Rent Ordinance, was passed without jurisdiction. The appellant having failed to comply with the order, his defence was rightly struck off. There is, therefore no merit in this second appeal which accordingly is dismissed. 1976 SCM R 229 PLD 1965 SC 459