' This judgment will also dispose of S.A.O. 38 of 1979, as similar points of facts and law are involved in both the cases.
2. The respondents-landlords filed two separate ejectment applications, one against Malik Muhammad Sharif and the other against Muhammad Rafique Butt, both appellants in the two appeals before this Court, on the ground of default in the payment of rent from 21st August 1976 to 21st April. 1977, as well as damage to the property in question. They also pleaded for vacation of the property on the basis of personal need. Both the ejectment applications were resisted by the appellants on legal as well as factual grounds.
3. It may be mentioned that prior to the institution of the ejectment applications notices under sections 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 were issued to the appellants on 18th February, 1977. They were acknowledged and replied. The properties in question were purchased by the respondents landlords from their previous owners Abbas Ghani and Waqar Ghani vide registered deeds dated 21st August, 1976. The appellants were required to pay monthly rent at the rate of Rs, 100 p.m. Each, instead of Rs,
40. Which they were paying to the previous owners. In their replies to the notices the appellants stated that rent of the respective properties was Rs, 40, each, and not Rs, 100 p.m. They pleaded to pay the rent at the aforesaid rate and further stated that due rent had already been deposited in the Court.
4. In their written statements both the appellants in the preliminary objections raised the plea of non-existence of relationship of landlord and tenant between the parties. However, on merits they pleaded that they had deposited rent of the respective properties at the rate of Rs, 40 p.m. In the Court of the Rent Controller and the respondents could draw the amount after establishing their entitlement.
5. The issues on merits were framed on 4th October 1977, after the appellants were directed by the Controller to pay the arrears of rent from 21st August 1976 at the tentative rate of Rs, 40 p.m. And the future rent as well at the same rate. It is significant to notice that no issue, whatsoever, was framed on the aforesaid date on the basis of the preliminary objection with regard to non- existence of relationship of landlord and tenant. There is nothing on record to show that the appellants ever agitated before the Controller for framing any such issue. There is an endorsement on a side of the order sheet, containing the issues, duly signed by the counsel for the appellants that no further issue was pressed. The respondents-landlords concluded their evidence on issues on merits on 12th December 1977, and the case was adjourned to 4th February 1978 for appellants' evidence which could not be produced on that date. However on 22nd March 1978, preliminary issue with regard to existence of relationship of landlord and tenant between the parties was framed at the instance of the respondents. It is alleged by the respondents that aforesaid issue was framed with the consent of the parties. Mr. C.A. Rehman, learned counsel for the appellants, who has been appearing for his clients before the Controller as well as the learned lower appellate Court, has made a statement at the bar that he pleaded before the Controller that since the evidence of the respondent had been concluded on issues on merits, therefore, no useful purpose would be served by framing the preliminary issue. According to him, since the Controller insisted to frame such issue in view of the preliminary objection taken by the appellants herein, therefore, he left the matter to his discretion. The respondents led evidence on the preliminary issue while the appellants did not produce any evidence in spite of having been ranted opportunity. The issuance of notice under section 13-A of the Ordinance as well as the sale of the properties in their favour in 1976-having been established, the preliminary issue was found in their favour. Since the title of the respondents had been denied by the appellants, therefore, their defence was struck off and ejectment order was passed against them. Both the Courts below, while deciding the case in favour of the respondents relied upon Nisar Ahmad v. Nazar Muhammad (1) and Muhammad Siddique v. Naseer Ahmad (2).
6: It has been vehemently argued by the learned counsel for the appellants that preliminary issue with regard to relationship of landlord and tenant between the parties was never urged on 4th October 1977, when the issues on merits were framed and that was why that no such issue was ever framed on that date. Even thereafter the appellants never agitated before the Controller that such issue may be framed, as they had given up this objection. It has been contended that the endorsement to that effect was made by the counsel for'the appellants on the said date only for that reason.
' It has also been argued while relying upon Abdul Khaliq Qureshi v. Saeed Hassan Shah and others
(3) (para. 36 of the judgment) that the authorities mentioned above and relied upon by both the Courts below being not applicable to the facts of the present case no order of ejectment could be passed against the appellants irrespective of the fact whether the preliminary objection denying the relationship of landlord and tenant had been wised. It has been held in that judgment, delivered by a Division Bench, f which I was also a member :-- "We may, however, enter a caveat. There may be cases where on the one hand the relationship of landlord and tenant is denied and on the other there, is unimpeachable documentary evidence of payment of tender of rent as distinguished from mere oral evidence. In such cases, the ,principle of approbate and reprobate may not apply since on a better statement of the respondent the Rent Controller may be able to determine the matter of relationship of landlord and tenant and proceed to pass an order under section 13 (6) and frame an issue of default.
' There may, therefore, be exceptions to the rule decided in the precedent cases and each case should, therefore, be decided on its own merits. We may also explain that in some cases reference has been made to the forfeiture of tenancy by denial of landlord's title (1) PLD 1974 Lah. 489 (2) PLD 1976 Lah. 1078 (3) 1979 CLC 118 which in general law is good ground for eviction of the tenant. But this is not a ground of ejectment under section 13 of the Ordinance of 1959. The rule enunciated in the cases referred in this judgment is not based upon forfeiture but on the principle of estoppel against proof of payment of rent or principle of simultaneous approbate and reprobate."
7. In the present case rent receipts Exhs. R/1 to R/18 have been brought on record showing payment of rent from September-October, 1976 to June, 1978 while the ejectment application was filed on 10th May, 1977. As mentioned above, notices for payment of rent at the rate of Rs, 100 were issued on 18th February, 1977 and according to law rent will be due to be paid to the respondents from the date of issue of notices. However, rent has been shown to have been paid with effect from September-October, 1976. The correctness of the rent receipts has not been denied before this Court. The rent receipts further show that the rent due from the respondents was continuously deposited within the stipulated period. It means there is unimpeachable documentary evidence on record with regard to payment of rent as distinguished from mere oral evidence. Further the facts of the reported cases referred to by both the Courts below are quite distinguishable from the facts of the present case. In all those cases the tenants had never deposited any rent due from them and in addition to that had denied the title of the landlords for the realization thereof Such position does not obtain in the present case. The appellants no doubt in their written statements denied the title of the respondents, but at the same time they submitted that they had been continuously depositing the rent due from them within the stipulated period in the Court. The respondents demanded payment of rent at the rate of Rs, 100 p. m. While they deposited the rent at the rate of Rs, 40 p. m. As mentioned above, they were directed by the learned Controller to deposit the arrears as well as the future rent at this rate under section 13(6) of the Ordinance. In the circumstances I don't think that they can be held guilty of default in the payment of rent. As such, under the law, while relying upon the aforesaid D. B. Authority, no ejectment order could be passed against the appellants in spite of the fact that they denied the title of the respondents.
8. It has been vehemently urged by the learned counsel for the respondents that since the endorsement alleged to have been made by the learned, counsel for the appellants on 4th October, 1977 on a side of the order-sheet containing the issues is forged and actually was never made on that date, therefore, preliminary issue with regard to relationship of landlord and tenant was rightly framed by the Controller. Be that as it may, the record does not show that framing of the preliminary issue with regard to relationship of landlord and tenant was urged by the appellants or their counsel on 4th October, 1977 when issues were framed on merits. There is no doubt that such preliminary objection had been raised in the written statements, but since it was not raised at the time of framing of the issues, therefore, no issue was framed in relation thereto. It has been contended on behalf of the respondents that if any such endorsement had been made by the counsel for the appellants on 4th October, 1977, then such plea would have been taken by the appellants in their appeal before the District Judge and in the absence of that it should be considered that preliminary objection was never given up. I am of the view that apart from the endorsement, whether it was made genuinely or otherwise the fact remains that no preliminary issue was pressed to be framed by the appellants at the time when issues on merits were framed on 4th October, 1977. This very conduct on their part would show that they were not interested in the framing of the preliminary issue.
9. As a result of the above discussion the impugned judgments passed in both the cases cannot be justified and they are hereby set aside. Both the appeals are accepted without any order as to costs.