' MAULVI ANWARUL HAQ, J.---On 24-10-2003 respondent No,1 filed an application for the ejectment of the petitioner from a flat located in Lahore Urban Area. It was stated that the petitioner is a tenant since 1-1-2002 subject to payment of Rs,2500 as rent. It was complained that the rent was never paid in time and that the petitioner has damaged the flat and also failed to pay the utility bills. Bona fide personal requirement was also pleaded. In the latter part of the application it was stated that the rent has not been paid from the month of October, 2003. The petitioner in his written statement proceeded to state that he is occupying the fiat since 1-1-1997 under the rent agreement executed by him in favor of Akhtar Rasheed Toosi who is general attorney of Nasir Rasheed Toosi.
According to him the rate of rent was Rs,3300 per month. According to him rent at this rate was paid upto 1-1-2002 on which point the said Akhtar Rasheed Toosi agreed to sell the flat to himand also accepted Rs,1,00,000 as token money but later refused to do so. In order to adjust the said token money the rate Of rent was reduced to Rs,2500 and another rent agreement was executed.
Rent was paid till April, 2003 whereafter he refused to accept rent and he is depositing the same in the Court. He pleaded regular payment of rent and denied the other grounds in the case. It is rather unfortunate that instead of properly reading of the said pleadings and considering the close relationship between the persons mentioned in the reply and the respondent lady, the learned Rent Controller proceeded to frame a preliminary issue as to existence of relationship of landlord and tenant between the parties. Evidence of the parties was recorded. The issue was answered in the affirmative and an order for ejectment was passed on 14-6-2006. A learned A.D.J has dismissed the first appeal of the petitioner on 15-3-2007.
' Learned counsel for the petitioner has contended that the pleadings and the evidence on record were not properly read. According to him in the circumstances the denial cannot be said to be contumacious. Further contends that apart from the fact that the petitioner had pleaded payment of rent, there was as such no allegation of default against his client while there is no finding on record as to any ground being made out for the ejectment of his client.
3. Learned counsel for respondent No,1, on the other hand, contends that the denial was contumacious and deliberate. He points out that the entire evidence has been led by the parties 'covering the said grounds as well particularly the ground for bona fide personal requirement.
4. I have gone through the copies of the record with the assistance of the learned counsel for the parties. I have already referred in some detail to their pleadings. Before proceeding further I may note here that the respondent-lady is the wife of Nasir Rasheed Toosi while the said Akhtar Rasheed Toosi referred to in the written reply who appeared as A.W.2 is the brother of said Nasir Rasheed Toosi. It is an admitted position on record that it was the said Akhtar Rasheed Toosi who let out the flat to the respondent and had been receiving rent. The plea taken by the petitioner was that the said Akhtar Rasheed Toosi had rented out the flat acting as an attorney of Nasir Rasheed Toosi the husband of the respondent Lady. Although Akhtar Rasheed Toosi as A.W.2 stated that he acted as the attorney of the said lady but no such power of attorney has been produced on record.
In the said circumstances apparent on the face of the record I do not find the said plea to be a contumacious denial of relationship of landlord and tenant between, the parties.
5. Apart from what has been stated above I find that the ejectment application was filed in Court on 24-10-2003 and regarding default it wasstated in ground 'D' in para. 5 that he has failed to pay the rent for the month of October, 2003. It is but apparent that the rent for October, 2003 had not accrued due for payment on the date the ejectment application was filed. Regarding the other grounds both the learned counsel for the parties said at the Bar that entire evidence has already been led by them and no further evidence is to be led. The Honourable Supreme Court of Pakistan has laid down the following principle in the case of Makhan Bano v. Haji Abdul Ghani (PLD 1984 Supreme Court 17):-- "So far as the specific ground on which the leave to appeal was granted, the tenant's denial of the landlord's, title simpliciter does entail forfeiture under the general law but cannot by itself and independently be a ground sufficient for securing his ejectment. This is so because notwithstanding the contract, the tenant occupies the premises and his ejectment is controlled by the provisions of the Ordinance. His denial of landlord's title is relevant for the purposes of granting or refusing him an equitable discretionary relief when such denial is coupled with a manifest breach of his statutory duties as provided under the Ordinance."
' It is but evident that respondent had pleaded payment of rent and denied the other grounds whereas no finding has been recorded as to breach of any statutory obligation resulting in his ejectment. The writ petition accordingly is allowed and the impugned orders, dated 15-3-2007 of the learned A.D.J. And 14-6-2006: of the learned Rent Controller as declared to be without lawful authority and are set aside. The result would be that the ejectment application filed by the respondent lady shall be deemed to be pending. The parties shall appear in the Court of learned Senior Civil Judge/Rent Controller, Lahore on 2-10-2007. Office shall remit the records to the said learned Court along with a copy of this order. As stated by the learned counsel for the parties the entire evidence of the parties on merits already stands recorded and they do not have to lead any other evidence. After examining the record and hearing the parties the learned Rent Controller shall decide the matter after recording findings on the following issues:--
(1) Whether the flat is bona fide required by the landlady for her personal use and occupation? OPP.
(2) Whether the respondent has failed to pay or tender for payment the monthly rent due to the petitioner and thus has committed a wilful default in the payment of rent?
(3) Whether the respondent has damaged the rented premises and impaired its value and utility?
(4) Relief.
' This exercise to be completed by the learned Senior Civil Judge within.The current year before the commencement of Winter Vacation.