1. This second rent appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) is directed against the Judgment dated 5-10-1976 passed by the learned VI Additional District Judge, Karachi, whereby he dismissed the appeal filed by the appellant and maintained the order dated 31-5-76 passed by the learned Rent Controller directing ejectment of the appellant from the premises bearing No. LY/7/73, Atmaram Pritmadas Road Lyari Quarters, Karachi.
2. The relevant facts are that aforementioned premises were said to one Suleman in public auction held by the Settlement Department on 12-8-60 and confirmed on 28-10-60. Thereafter, Suleman died and the premises were transferred to his successors A. Aziz and Mst. Robra Bai vide P. T. O.
3. Dated 25-3-61 and P. T. D. Dated 29-12-64, issued by the Settlement Depart--ment. The aforenamed transferees, thereafter, sold the said premises to the respondent Muhammad Amin through registered sale deed dated 27-11-71, whereafter the respondent became the sole owner of the property. The respondent Muhammad Amin thereafter served notice dated 11-12-1971 on the appellant-statutory tenant by registered post A/D informing him of the transfer and the sale of the said property to him and demanding payment of rent from him. The appellant replied to the above said notice by alleging that the property in question was a Trust property and questioned his entitlement to the property. The respondent thereupon sent another registered A/D notice dated 21-2-1971 to the appellant giving the necessary details and again demanded rent from him. The appellant, however, did not pay any rent to the respondent who thereupon, on 2-10-1972, moved the learned rent controller for ejectment of the appellant from the premises.
4. The appellant contested the application and in his written statement denied the title of the respondent and the existence of relationship of landlord and tenant between him and the respondent and alleged that the property in question was a Hindu Trust Property belonging to Karachi Pinjara Pur Association and therefore its transfer as well as the sale by the transferee to the respondent Muhammad Amin was void ab initio. It was further pleaded by him that notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and section 13-A of the Ordinance had not been served on him by the respondent and that the rent of the property could not be Rs. 225 per month. As the existence of relationship of landlord and tenant and service of statutory notice on the appellant was denied, the learned Rent Controller framed the following preliminary issues :-
(1) Whether there is relationship between the parties as tenant and landlord?
(2) Whether the notice under section 30 of the Displaced Persons Act was served against the Opponent? And
(3) What should the order be?
5. The appellant/respondent examined himself on the above issued and produced the relevant documents and the case was thereafter adjourned to the next date for his cross-examination at the request of the appellant. The respondent was, however, not cross-examined on the next date also and, instead, statement was made by the appellant and his counsel that they did not want to lead evidence and requested for passing of rent order by the Court. The learned Rent Controller accordingly decided the issues against the appellant and held that there existed relationship of landlord and tenant between the parties and directed the appellant to deposit the arrears as well as future rent, by his order dated 6-3-1976, which was complied with by the appellant.
6. On 10-5-1976, however, before other issues could be framed, the Advocate for the respondent moved an application before the Rent Controller stating therein that as the appellant had denied the existence of relationship of landlord and tenant between the parties, and whereas the learned Rent Controller held that there existed relationship of landlord and tenant between the parties and the appellant had admittedly paid no rent whatsoever to the respondent, wilful default on his part stood established and therefore there was no need for holding further enquiry into the matter and the appellant be ejected straightaway, on the basis of PLD 1974 Lah. 489. The appellant opposed the application by filing objection wherein he pleaded, firstly, that the tentative rent order having been passed on his admission of the relationship of landlord and tenant between him and the respondent, the application was not maintainable and, secondly, as the title of the respondent became very clear on 29-11-1975, only of the passing of the order by the Chairman, Evacuee Trust Board, it was necessary to record further evidence to ascertain whether the default on the part of the appellant was wilful.
7. The learned Rent Controller after carefully applying his mind to the facts and the arguments advanced by the respective learned counsel and the cases cited by them, namely, PLD 1974 Lah.
8. 489 and PLD 1976 Kar. 921, came to the conclusion that, as the denial by the applicant of the title of the respondent and the existence of relationship of landlord and tenant between the parties lacked bona fides and it was found that such relationship existed between the parties and the - appellant had admittedly paid no rent to the respondent at whatsoever rate, wilful default on the part of the appellant stood established, and relying on PLD 1974 Lah. 489, held that no further enquiry was necessary in the matter and directed his ejectment from the premises by his order dated 31-5-76. Aggrieved by the order, the appellant went in appeal wherein he raised the same contentions as before the learned Rent Controller. The learned Additional District Judge, however, dismissed the appeal by his judgment dated 5-10-1976 and maintained the order passed by the learned Rent Controller. Hence this second appeal by the appellant tenant.
9. Mr. Ali Ahmed Fazeel, learned counsel for the appellant, contended that failure on the part of the Rent Controller to record further evidence amounted to refusal of affording reasonable opportunity to the appellant of showing cause against his ejectment, as provided by section 13 (2) of the Ordinance. He argued that there was genuinely a cloud cast on the title of the respondent as shown by the facts (i) that the property in question was originally a Trust Property belonging to the Trust Board, (ii) that the respondent has himself filed suit in the civil Court for declaration of his title to the property in question and (iii) that even the High Court, in- the revision filed by the appellant, had granted stay on 17-4-1974, restraining the respondent from enforcing against the appellant any order passed in his favour till the disposal of the Revision Petition ; and since title of the appellant was under cloud the non-payment of rent by the appellant to the respondent could not be termed as wilful and had evidence been recorded the appellant would have so proved to the Court, but since no further evidence was recorded the appellant was deprived of this opportunity and, therefore, the straight away ejectment of the appellant was improper, unjustified and unsustainable in law.
10. Learned counsel next contended that recording of further evidence in the case was also necessary because the appellant having disputed the rate of rent and the learned Rent Controller having already passed the tentative rent order, it was mandatory on the learned Rent Controller to pass final order determining the rate and the quantum of rent payable by the appellant to the respondent as required by the second part of the sub--section (6) of section 13 of the Ordinance, and in support relied upon the Single Bench decision reported as Nooruddin v. Muhammad Qasim (PLD 1976 Kar. 921).
11. Mr. M. A. Latif, learned counsel for the respondent, on the other hand, submitted that the recording of further evidence was wholly un--necessary in the circumstances of the case and the learned Rent Controller was perfectly justified in directing straightaway ejectment of the appellant. He argued that except that the cloud was artificially and drivolously raised by the appellant himself, no cloud was otherwise cast on the title of the respondent by any one else, as the respondent had purchased the property in question after the P. T. D. Bad been issued and the statutory relationship of landlord and tenant between the parties had come into effect and at no point of time the title of the respondent was suspended by any authority. He further argued that after the appellant was served with the notice by the respondent informing him of the transfer and the sale, the appellant instead of attorning to the respondent filed application before the Settlement Commissioner challenging the transfer and denying the title of the respondent and it was for this reason alone that the respondent was driven to file the suit for declaration of title and, consequently, it could not be legitimately said that filing of the suit by the respondent showed that a cloud was genuinely cast on the title of the respondent. The learned counsel next argued that after the application filed by the appellant before the Settlement Commissioner was dismissed on 10-6-1974, the appellant challenged the order of the Settlement Commissioner before the High Court in Constitutional petition which was dismissed In limine by the Court on 16-1-1975. Having failed on the Settlement side, the appellant filed application under section 4 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 before the Chairman, Evacuee Trust Board which also was dismissed on 29-1-197 , on the ground that appellant was only a tenant of the premises. The appellant went in appeal against the order which also was dismissed by the High Court on 21-5-1975. The appellant thereafter challenged the order of the Chairman, Evacuee Trust Board before the Federal Government under section 70 of the Evacuee Trust Property (Management and Disposal) Act (XIII of 1975) which also was dismissed on 27-5-1975. Not being content, the appellant filed yet another petition No. 1175 of 1975 in the High Court which was also dismissed in limine by the Division Bench on 27-11-1975. Next, the learned counsel continued, when the case was finally fixed before the Rent Controller for recording evidence on preliminary issues regarding existence of relationship of landlord tenant between the parties and service of section 30 notice on the appellant, the respondent Muhammad Amin examined himself on the issues and produced the relevant documents where after he was to be cross-examined, but the appellant declined to cross- examine him and stated that his counsel would do so and the case was accordingly fixed on 26-2- 1976, but on that date also the respondent was not cross-examined and, instead, the appellant and his counsel both made a statement that they did not want to lead any evidence and conceded to the passing of the rent order. The above conduct of the appellant, the learned counsel submitted, clearly showed that the appellant was not serious and had frivously denied the title of the respondent to cause utmost harassment to him.
12. The learned counsel next submitted that the respondent had admittedly served the statutory notices on the appellant giving him full particulars and informing him of the transfer and the sale of the premises and demanding rent from him, but the appellant deliberately and mala fide denied the title of the respondent and paid no rent whatsoever to him nor did he deposit any in Court.
13. Consequently, wilful default on the part of the appellant in paying rent stood established as rightly found by the learned Rent Controller, and since it had been found that the appellant had frivolously denied the title of the respondent and the relationship of landlord and tenant between the parties and deliberately paid no rent whatsoever to the respondent, there was no need for holding further enquiry into the matter and the learned Rent Controller was perfectly justified in directing ejectment of the appellant without recording further evidence in the matter as it would have only involved further delay, and in support relied upon 1966 Law Notes Lah. 67, PLD 1974 Lah. 489, 1975 SCMR 19, PLD 1976 Lah. 1078 and 1977 Law Notes SC 574.
14. As to the contention of the learned counsel for the appellant that further evidence was necessary because the appellant had disputed the rate of rent, Mr. Latif argued that the appellant in his written statement did not dispute the rate of rent by alleging that the rate of rent was not as demanded by the respondent but was at some other rate specified by him, and had disputed it in most general terms after having stated earlier in the same paragraph 4 of his written statement "it is denied that the appellant over become entitled to claim rent", which went to show that he did not genuinely dispute the rate of rent but was interested wholly in denying the title of the respondent.
15. He further argued that, in any case, the appellant had not paid or tendered any rent whatsoever to the respondent, not even at the rate he was paying to the Trust Board, and, therefore, his disputing the rate of rent made no difference and recording of further evidence could not have improved the situation insofar as the question of wilful default on the part of the appellant was concerned. He lastly submitted that if the recording of further evidence was necessary only to determine the rate and the quantum of rent, the respondent was prepared to accept the rent at the rate of Rs. 83.38, the rate at which appellant was admittedly paying to the Trust Board and refund the excess to the appellant, in order to put an end to the matter.
16. The question for consideration in whether the Courts below were right and justified in directing straightaway ejectment of the appellant without recording further evidence in the matter.
17. The learned Rent Controller, as well as the learned Additional District Judge, found it unnecessary to record further evidence in the matter and directed straightaway ejectment of the appellant for the reasons that as the appellant had mala fide denied the title of the respondent and the relationship of landlord and tenant which was found to exist between the parties and the appellant admittedly paid no rent to the respondent at whatsoever rate, in spite of being duly served by the appellant with the statutory notices informing him of the transfer and of the sale of the premises and demanding rent from him, the wilful default on the part of the appellant stood established and therefore no useful purpose would be served by holding further enquiry into the matter.
18. It is accordingly to be seen, firstly, whether the appellant's denial of the title of the respondent and the existence of relationship of landlord and tenant between the parties lacked bona fide and, secondly, whether the non-payment of rent by the appellant to the respondent amounted to wilful default.
19. It is not disputed that the appellant was only a tenant of the premises in question which were sold in the public auction and transferred by the Settlement Department to Messrs A. Aziz and Mst.
20. Zohra Bai vide P. T. O. And P. T. D. Dated 25-1-1961 and 29-12-1964, who later sold it to the respondent by a registered sale-deed. The record would also show that after purchasing the premises the respondent served the appellant with the two notices inferring him of the aforesaid and the sale and demanding rent from him, and in the last notice, dated 21-10-1972, had also clarified to the appellant that the property in question bad been excluded from the trust pool. After being so informed, relationship of landlord and tenant between the respondent and the appellant came into existence and the appellant was legally bound to pay rent of the respondent, but the appellant neither accepted the respondent as his landlord nor paid him any rent and, instead challenged the respondent's title by filing an application before the Settlement Commissioner against the transfer of the property and its sale to the respondent. The application was, however, dismissed by the Settlement Commissioner by his order dated 10-6-1974 against which the appellant filed petition in the High Court which also was dismissed in 11mine on 16-11-1975. The appellant still did not accept the respondent as his landlord and went into the second remand of litigation by challenging the transfer and title of the respondent before the Chairman, Evacuee Trust Board who also dismissed his application by his order dated 29-1-1975, on the ground that the appellant being a tenant had no locus stands to challenge the transfer of the property by the Settlement Department, and for his decision relied upon the reported decisions of Lahore High Court and the then Sind and Baluchistan High Court. The appellant still did not accept the respondent as his landlord and further challenged the order of the Chairman, Evacuee Trust Board in revision before the Federal Government and also filed petition is the High Court, which were both dismissed, the petition being dismissed in 11mine on 27-11-1975.
21. The above facts and the conduct of the appellant would indeed show, firstly, that it was the appellant who alone disputed the title of the respondent by himself raising the cloud as it on which account the respondent was driven to file the suit for declaration of his title, and, secondly, that although the respondent had duly informed the appellant about the transfer and the sale of the premises and made clear to him his title, the appellant deliberately denied the title of the respondent and the existence of relationship of landlord and tenant between the parties by resorting to litigation before various forums for which there hardly existed any justifi--cation, for, being a tenant only, he could not challenge the transfer of the premises by the Settlement Department and its subsequent sale by the transferees owners to the respondent. It cannot, therefore, be legitimately maintained by the learned counsel for the appellant that there was genuinely a cloud cast on the title of the respondent which bona fide made the appellant dispute the title of the respondent. This is further borne out by the fact that it was the appellant's own case that the title of the respondent had become clear on 29-1-1975, after passing of the order by the Chairman, Evacuee Trust Board. In that case, there existed no justification thereafter for the appellant to further challenge the title of the respondent, but, as shown above, the appellant continued to challenge the respondent's title even after passing of the order by the Chairman, Evacuee Trust Board, by filing revision before the Federal Government and Petition in the High Court which were both dismissed.
22. This, however, is not all. The respondent had admittedly served the appellant with the notices informing him of the transfer of the property and issuance of the P. T. O. And P. T. D. In respect thereof and its also to him and demanding rent from him. After he was so informed, the appellant, being a tenant, was legally bound to pay rent to the respondent, and even if he wanted to genuinely deny the title of the respondent, it did not absolve him from paying rent of the premises.
23. If he did not feel like paying it to the respondent, he could have deposited it in Court or even paid it to the respondent under protect to show his bona fides in disputing the title of the respondent, but he admittedly paid or tendered no rent whatsoever to the respondent nor did he deposit any in Court, which only went to show that he did not dispute the title of the respondent bona fide. It may further be pointed out here that in both the notices, the respondent had not demanded rent from the appellant at any specified rate but had simply demanded payment of rent to him; so that, it also cannot be said that the respondent had demanded exorbitant rent and thus contributed to the non-payment of rent by the appellant.
24. Further, after the relationship of landlord and tenant was denied by the appellant, the Court framed the necessary issues on which the respondent examined himself and produced several documents in support of his title whereafter he was to be cross-examined. The appellant however did not cross-examine him and asked for time on the ground that this advocate would cross-examine him, and the case was accordingly adjourned. However, the respondent was not cross-examined even on the next date and, instead, statement was made by the appellant's counsel that they did not want to lead evidence and conceded to the passing of the rent order by the Court. It was argued that the appellant led no evidence because title of the respondent had become clear on 29-1-1975, and this was also relied upon by the learned counsel as a circumstance showing that the appellant had denied the title of the respondent bona fide. I regret my inability to agree with the learned counsel. Even after the title of the respondent had become clear on 29-1-1975, the appellant did not let the matter rest there, and further challenged the order dated 29-1-1975 in revision before the Federal Government and also in petition before the High Court which was dismissed in 1tmine. That being so, it cannot be legitimately argued that the appellant led no evidence because title of the respondent had become clear on 29-1-1975. After having put the respondent to the trouble of examining himself in the box and producing documents in support of his title, the appellant certainly did no favour to the respondent by not leading evidence. On the contrary, it showed the appellant was out to harrass the respondent and gave up only when he had no other alternative left, as contended by the learned counsel for the respondent.
25. In view of the above conduct on the part of the appellant, the learned Rent Controller as well as the learned Additional District Judge were both perfectly justified in finding that the appellant's denial of relationship of landlord and tenant and the title of the respondent lacked bona fides and that the appellant had deliberately failed to pay rent to the respondent and thus committed wilful default.
26. It last remains for determination whether in spite of the above findings, further enquiry was called for and it was necessary to record further evidence in the case. For, the main point involved in the proceedings being the commission of wilful default by the appellant and his liability to be ejected from the premises on that accounts, holding of further enquiry would have only determined whether the appellant had committed default and whether it was wilful or not, which is turn would have depended on whether the appellant had paid any rent or not, and if not, whether it was not paid for any bona fide reason. It has however been shown above that the appellant had admittedly, and deliberately, not paid any rent to the respondent nor did he deposit any in Court, and that the appellant's denial of the title of the respondent and existence of relationship of landlord and tenant, which was the main reason for his not paying the rent to the respondent, was frivolous and mala fide. That being so, wilful default on the part of the appellant indeed stood established as held by the two Courts below, and, as such, one fails to understand what useful purpose holding of further enquiry would have served in these circumstances as there remained nothing that could be legitimately urged further by the appellant or enquired into by the learned Rent Controller in this behalf. It was contended by Mr. A. A. Fazeel that the appellant had disputed the rate of rent and, therefore, further enquiry was necessary to determine finally the rate of rent and the amount payable by the appellant to the respondent. I regret my inability to agree with the learned and the able counsel. It is now well settled that a tenant is bound to pay rent to his landlord, and even if the landlord demands excessive rent the tenant is not absolved from paying legal rent payable by him. It is, however, an admitted position in the instant case that the appellant paid or tendered no rent whatsoever to the respondent, not even at the rate he was previously paying to the Evacuee Trust Board, although the respondent in his notices had not demanded the rent from him at any specified rate but had simply demanded payment of rent to him. That being so, even if it be conceded that the rate of rent was disputed it could have made no differences insofar as the question of wilful default on the part of the appellant and his liability to be ejected from the premises on that account was concerned and further enquiry for determining the final rate of rent and the amount payable by the appellant would have been of no avail to the appellant. Had he paid rent to the respondent or deposited it in Court even at the rate he was previously paying to the Evacuee Trust Board, or at any other rate that he thought to be proper, it could have been legitimately urged on his behalf that he disputed the rate of rent genuinely and it was necessary therefore to further determine whether the appellant had committed wilful default.
27. Similar situation arose in the case reported in PLD 1974 Lah. 489 wherein the learned Single Judge held that if the tenant is admitted to have paid no rent after he has been held to be tenant of the respondent landlord, no further enquiry was necessary to be made and straightaway ejectment order could be passed against him. Dealing specifically with the point whether further enquiry would be necessary for determining the amount of rent to be paid by the tenant the learned Judge observed as under : - "Moreover even if the amount of rent to be paid by the appellant is determined under the said provision then what would be the effect of such determination. It is possible for the appellant to prove that he has paid the rent to the respondent? He himself has admitted that he has paid even a single penny as rent to him because he never acknowledged him to be his landlord. Any such order under the said provision would be a futile exercise of the jurisdiction vesting in the Rent Controller. It may further prolong the agency of necessary litigation but the ultimate result will be the ejectment of the appellant for non-payment of the due rent. As such even from this aspect of the case no such order is required to be passed for the purpose of determining the amount of rent to be paid by the appellant, after his plea regarding the relationship of landlord and tenant between the parties has been rejected."
28. I respectfully agree with the above view. It is true that in the cast reported at Nooruddin v.
29. Muhammad Qasim (PLD 1978 Kar. 921), the learned Single Judge expressed his disagreement with the view taken in the above cited Lahore case and took the view that generally evidence should be recorded, but then again, it was also observed by his Lordship at the same time that question of the propriety of recording evidence in the question of a tenant's failure to pay rent must always depend on the facts and circumstances of the case. In the aforesaid Karachi case, the title of the respondent landlord was found by the Court to be under a cloud and no attempt had been made on his behalf to prove the title even up to the stage of appeal and the question if illegal compromise between the respondents landlords regarding the title of the property was involved and the title of the landlord was also perfected by the lease obtained by the landlord long after the institution of their revision application, and it was in these circumstances that the appellant tenants were found to be justified in withholding rent and it was held that further enquiry was necessary. In the instant case, however, it has been shown that although the respondent had made clear his title at the out set, the appellant had deliberately and frivolously denied the title A of the respondent and the withhold payment of rent to the respondent. That being so, holding of further enquiry into the matter would have been unnecessary, even on the basis of the observations made in the above Karachi case.
30. Moreover, both the aforesaid cases viz. PLD 1974 Lah. 489 and PLD 1976 Kar. 921 came up for consideration before the Supreme Court in the very recent case, reported as Amanullah Khan v.
31. Chotey Khan (1978 SCMR 14), in which the tenant, petitioners before the Supreme Court, had disputed the relationship of landlord and tenant between the parties and service of the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act on him. The learned Rent Controller found on the preliminary issues that there existed relationship of landlord and tenant between the parties but held against the landlord, respondent before the Supreme Court, on the issue regarding service of section 30 notice on the petitioner tenant. In the appeal by the respondent landlord the learned Additional District Judge disagreed with the Rent Controller and held that notice under section 30 of the Act had been duly served on the petitioner tenant. The latter went in second appeal before the High Court wherein the learned Single Judge took the view that section 30 notice had been duly served on the petitioner tenant. At that stage, learned counsel for the respondent landlord made a submission that since it was found that there existed relationship of landlord and tenant between the parties and the tenant had admittedly paid no rent whatsoever, wilful default on the part of the tenant stood proved and, therefore, there was no need for holding further enquiry in the matter and he be ejected forthwith. The High Court accepted the contention and held that since the petitioner tenant had disputed the relationship of landlord and tenant and on that basis had not paid the rent, it was an exercise of futility to allow the Rent Controller to proceed further with the case as the petitioner tenant was estopped from proving that he had committed no default on the payment of rent and dismissed the appeal and ordered ejectment of the tenant from the premises. The tenant challenged his straightaway ejectment in the Supreme Court by filing petition for special leave and relied upon the aforesaid decision, viz. PLD 1976 Kar. 921. Their Lordships of the Supreme Court, however, held that since the tenant had defaulted in payment of rent as he did not accept the respondent as his landlord, no purpose would have been served by remanding the case and dismissed the petition. Keeping in view the above decision, which indeed is binding on me, I have no hesitation in holding that further enquiry in the present case would also have been unnecessary and it would have served no other purpose except further delay, six years having already passed since filing of the eviction application.
32. For the above reasons, I see no merit in this second appeal and dismiss it with no order as to costs.
33. In view of the statement made voluntarily by the learned counsel for the respondent, however, it is directed that the respondent will refund the amount of rent received by him in excess of the rate of Rs. 8333 per month, the rate at which the appellant was paying to the Evacuee Trust Board, and if there is any further amount lying in deposit in Court, the respondent shall withdraw it at the same above rate and the balance shall be refunded to the appellant. The appellant is given three months time to vacate the premises and band over its possession to the respondent.