MIAN SAQIB NISAR, J. --- The ejectment application brought by Muhammad Khalil Dar, the predecessor-ininterest of the respondents, against the appellant on the ground of default in the payment of rent was allowed by the learned - Rent Controller vide order dated 23.01.2002. The appeal of the appellant has failed on 14.10.2003. Hence this second appeal.
2. All the very outset, Dr. A. Basit, learned. Counsel for the respondents, has raised a preliminary objection that the present appeal is incompetent, because the property in question is a resident bungalow and the second appeal under the law has only been provided for the non-residential property. The objection has no force and is hereby , repelled because in the present case, even according to the averments of the ejectment application, the property was rented out to the appellant for the commercial pu'rpose, therefore, in terms of Section 2(d) of the Punjab Rent Restriction Ordinance, 1959, it is non-residential building regarding which, the second appeal can be competently filed.
3. Now coming to the merits of the case, the brief facts are:- "That the demised property known as 20-Masson Road, Lahore measuring 71/2 kanals was owned by Begum Akbar Jahan alias Mir Jan Begum were of Sheikh Muhammad Abdullah (Ex. Chief Minster of occupied Jammu & Kashmir); the property was rented out to the appellant by Muhammad Khalil Dar, her attorney in the year 1983. On 30.03.1998. Mr. Dar brought the present ejectment petition stating that the appellant, on account of the amendment in the Rent Laws, was bound to increased the rent to the extent of 25% after every three years, but he has failed and thus, defaulted in the payment of rent due. The appellant denied the relationship of tenancy and stated that the property in question is owned by Mir Jan Begum and not he respondent/ejectment petitioner, who has only rented out the property to the appellant as an agent for the lady. Resultantly, the learned Rent Controller framed the issue about the existence of the tenancy and the parties were put to trial ." .
4. The respondents examine Muhammad Iqbal Dar (attorney of Muhammad Khalil Dar) as AW-1, Muhammad Shakil Zabair as AW-2 and Falak Sher as AW-3. Besides, the Cheque issued by the appellant in the name of Muhammad Iqbal Dar for the payment of the rent was brought on the record as Ex.A-3; the bank slip about the dishonour of the above Cheque as Ex.A-2 and the later written by Akbar Brothers/appellant dated 05.01.1997 as .Ex.A-4. It may be pertinent to mention here that despite availing the opportunities, the statements of the AWs were not subjected to cross-examination and ultimately, the appellant's right in this regard was closed by the learned Rent Controller vide order dated 08.03.2000 and this order has not even been challenged by the appellant in appeal. Therefore, the testimonies of all the AWs have gone unrebutted. Conversely, the appellant examined Safdar Hussain as RW-1, who has deposed that the property in question was ,owned by Mir Jan Begum widow of Sh. Muhammad Abdullah and that Muhammad Khalil Dar was not the owner of the property. He also stated that some power-of-attorney in favour of Muhammad Farboq Abdullah, her son, by the lady and also the power-of-attorney in favour of Muhammad Khalil Dar by Muhammad Farooq Abdullah, are forged and fabricated. However in the cross-examination, RW-1 has admitted that the appellant had been making the payment of rent to Muhammad Khalil Dar and for the test 4/5 years, it is being deposited in the Court, but in the name of Mir Jan Begum. Shahid Hamid/RW-2 he also deposed to the same effect. AW-3 Akbar Ali Bhatti, has appeared for the appellant and deposedin- corroboration of the contents of the written reply to the ejectment application, but in the cross- examination, in a very categorical terms he has accepted that he has been making the payment of rent to Muhammad Khalil Dar and his son tilI 1996-97 and frOm 1997 has been depositing the rent in the Court in the name C.L.R. of Mir Jan Begum. Upon the conclusion of the trial, the learned Rent Controller accepted the ejectment application and the appeal of the appellant has failed.
5. Learned counsel for the appellant contends that the property in question is owned by Mir Jan Begum and Muhammad Khalil Dar was only acting as her attorney; the property was rented by the attorney for and on behalf of the lady and the relationship of landlord and .Tenant only exists between the appellant and Mir Jan Begum and not with the respondent/ejectment petitioner. It is further stated that he documents, even now placed on the record by Dr. A. Basit learned counsel for the respondents, alongwith the application (C.M. No. 1410-C/2006) envisages that the owner/landlady Mir Jan Begum in fact gave the general power-of-attorney in favour of her son Muhammad Farooq Abdullah with the power to rent out the property and the said general attorney gave the special power-of-attorney to Muhammad Khalil Dar and it is on the basis of this special power of attorney that the property was rented out to the appellant, therefore, for all intents and purposes, factual or legal, it is Mir Jan Begum, who was the landlady and not the respondent/ejectment petitioner. It is also stated that after the demise of Muhammad Khalil Dar, his legal heirs/ representatives moved an application to be. Impleaded as party, which was objected to by the appellant that they are not the legal representatives, because the property was owned by Mir Jan Begum and she was the landlady and the legal heirs of the attorney cannot be so arrayed. This objection has been left open and should be decided alongwith this appeal.
6.. I have heard the learned counsel for the parties . The evidence of the respondents is very clear that the property in question was rented out by Muhammad Khalil Dar to the present. Appellant; the physical possession was handed over to the appellant by Mr. Dar and till 1997 it is Mr. Dar to whom, The rent was being paid by the appellant. No document has been produced by the appellant to show that C.L.R. the tenancy was in the name of Mir Jan Begum and it was she who was entitled to receive the rent from the appellant. The appellant throughout had been making the payment of rent to Muhammad Khalil Dar in his on name; even the Cheque (Ex.A-3) was issued in the name of his son towards the said rent, which was dishonoured through Ex.A-3. Above all, in the letter dated 05.01.1997 (Ex.A-4), addressed by the appellant to Muhammad Iqbal Dar, it is clearly mentioned that:--- "We may inform you that the cheque for the advance rent from January, 1997, 1997 to December, 1997 for your premises known as 20-Masson Road, Lahore @ Rs. 15,000.00 p.m., totaling Rs.
1,80,000.00 was got prepared by the organization but you did not turn up to collect the same.
However, we have sent you the said account through Money Orders No. 4683-4700, dated 05.01.1997."
The above documentary evidence is sufficient to establish that the tenancy was created by Mr. Muhammad Khalil Dar; the appellant was put in physical possession of the property by Mr. Dar and the rent was being paid to and in the name of Mr. Dar. Besides, AW-1 and AW-3, who in clear terms have stated that the appellant was the tenant under Mr. Muhammad Khalil Dar; despite availing the opportunities their statements have not been crossed. Likewise, AW-2, who is the Alma of the Court of a Civil Judge at Lahore has deposed that the appellant had moved an application against Muhammad Khalil Dar for seeking permission to deposit the rent in the Court in the name of Mr. Dar, but this application was dismissed on 31.05.1997 for the non-deposit of the process fee. This statement too has not been subjected to cross-examination. It is settled law that any deposition made in the examination-in-chief, if not subjected to cross examination, shall be deemed to have been admitted. Obviously, such statements once admitted by the appellant, no stance could be maintained by the appellant about the lack of tenancy with Mr. Dar. As far as the evidence of the appellant is concerned, it is all stereotype in nature. The affidavits seem to have been prepared by someone else and contain the same language; these are also even beyond the scope of the pleadings set out in the written reply. The only emphasis in the affidavits is that the property is owned by Mir Jan Begum, but when these statements are read in conjunction with the cross- examinations, the plea of the appellant stands defeated, because in the cross-examination it is admitted by the appellant himself and his witnesses that the property was procured on rent from Muhammad Khalil Dar and that the rent was being paid to him. The appellant has never brought on record, as mentioned earlier, any document to show that Muhammad Khalil Dar was not the agent for the lady at the time the premises was put under tenancy to the appellant. These facts, when taken in totality, are quite adequate to establish the tenancy and on the face of it, the denial seems to be contumacious and was propounded to take the advantage of the absence of the actual owner of the property from Pakistan.
7. It may be pertinent to state here that in order to be a landlord of the property, it is not necessary that the person should also be the owner, rather he should be entitled to receive that rent for the time being. From the facts and the evidence, which has come on the record, it is clearly established that the property was physically rented out to the appellant by Muhammad Khalil Dar and it, is he in whose name, the rent was paid by the appellant till 1997 and thus, was entitled to receive the rent. The argument of Kh. Saeeduz-Zafar, Advocate that the tenancy had been created on behalf of Mir Jan Begum, is not well-conceived because there is no proof in writing that the tenancy was crated in the name of Mir Jan Begum and it is she, who was entitled to receive the rent and Mr. Dar was only an agent to collect the same for and in her name. According to the definition of the "landlord", which has been dealt with in number of cases, it is clear that the word 'landlord" is not limited to the true owner but includes an agent, trustee, guardian, receiver, C.L.R. executor and administrator receiving the rent on behalf of the owner and any. Person who may be entitled to receive rent for the time being on his won account. According to Rehmatullah v. Ali Muhammad and another (PLJ 1983 SC 546), it has been held:--- "---S.2---Landlord---Definition of---Held: Definition of landlord being very were, person even if not owner of property, to be deemed to be landlord in various capacities."
Moreover it has been held in Nasim Khalid v. Ibrahim (NLR 1984 AC 318), as follows:- "Ss. 2(c), 13, 15---Attorney of landlady receiving rent from tenants who treating him as person to whom they were liable to pay rent---Falls within definition of "landlord"----Non-proof of power-of- attorney would in such a case be of no consequence---Second appeal against eviction order passed on ground of default in payment of rent dismissed and eviction order upheld."
8. Thus, from the above, it is clear that even if Mr. Dar was not the owner of the property yet being entitled to receive the rent from the appellant, he was the landlord and could competently file the ejectment application against the appellant. The denial of the appellant, as stated above, was contumacious and thus, on the proof of the existence of tenancy by the respondents, by applying the principle of forfeiture, the appellant is liable to be evicted straightaway, and this has been rightly done by the learned Rent Controller and also upheld in appeal.
9. There was another application, which was moved by the appellant before the learned Rent Controller for producing the additional evidence, but it was dismissed vide order dated 24.01.2001 and this order has not been challenged in appeal. However, the appellant moved an application the additional evidence before the Court of first appeal, which was dismissed alongwith the appeal vide impugned judgment dated 14.10.2003. However, an independent application (C.M. No. 1- C/2005) has been moved in this appeal through which, the appellant wants to being on record the power-of-attorney in favour of Muhammad Khalil Dar by Muhammad Farooq Abdullah. But nothing hinges upon this power-of-attorney. As regards the other document, which is a photocopy of the rent note dated 04.12.1983, suffice it to say that there had been no attempt on behalf of the appellant to produce this document at an stage of the proceedings and on the face of it, the document seems to be in-genuine and fraudulent, because had it been with the appellant, they would have straightaway filed the same alongwith their reply to the ejectment application.
10. As regard the question .That on account of the death of Mir San Begum the general power-of- attorney in favour 'of her son Farooq Abdullah and the special power-of- attorney in favour of Mr. Dar by Farooq Abdullah stand revoked and therefore, Mr. Dar ceases to be the agent of the owner, thus, he could not sustain and pursue the ejectment application; the pleas, tint he facts and circumstances of he cases, has no relevance, because I have already held, that it is Muhammad Khalil Dar who was the landlord of the property and, therefore, irrespective wnether the power- ofattorney given to him had lost its efficacy or stood annulled on account of the death of the Principal, he continues to be the landlord of the property as far as the present tenancy was concerned.
11. For the other question, whether the legal representative of Muhammad Khalil Dar can be brought on the record in his place, suffice it to say that when Mr. Dar has been held to be the landlord of the appellant, obviously, his legal representatives would be legally entitled to substitute after his death. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.