' This second appeal is directed against an order for the ejectment of the appellant, Muhammad Din, from a shop.
2. The shop in dispute was transferred to one Nazir Ahmed, under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, \hereinafter referred to as the said Act. At the time of its transfer, the appellant, Muhammad Din, was in possession of the shop and, thus, he became a statutory tenant under its transferee by virtue of the provisions of section 30, of the said Act. After sometime, the said Nazir Ahmed sold the shop to the respond6n, Shaukat Ali. It was on an application filed by Shaukat Ali that the order of eviction was made against the appellant. In the application, as originally filed by the respondent he had asked for the vacation of the shop on the ground of personal need. The application was resisted by the appellant on various grounds. On 13th May. 1975, the Rent Controller who was seized of the ejectment proceedings, made an order, under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance, directing the appellant to deposit arrears of rent for four months as also future monthly rent for each month before the 15th day of the next month. The appellant did not deposit the monthly rent in time. The respondent, therefore, made an application for striking off his defence and ordering his ejectment. His plea, ;which was opposed by the appellant, found favour with the learned Rent Controller with the result that he struck Off the defence of the appellant and directed him to vacate the shop in question. On this, the appellant went in appeal before the Additional District Judge but in vain. Hence this second appeal by him.
3. Learned counsel for the appellant contended that the application for ejectment of the respondent was premature inasmuch as the respondent had served notice, under paragraph (b) of the proviso to subsection (I) of section 30, of the said Act, on the appellant on 23rd November, 1974 but had taken out ejectment proceedings on 6th March, 1975, on the ground of personal need, before the expiration of six years after the 4ervice of notice. I am unable to agree with the learned counsel. The record reveals that initially the respondent had filed ejectment proceedings Against the appellant alleging that the disputed shop was needed by him for his own occupation, Subsequently, however, he amended his petition, with the permission of the learned Rent Controller, and pleaded default also. It was after this amendment that the learned Rent Controller had made order regarding the deposit of rent. According to clause (1) of subsection (3) of section 30, of the said Act, the ejectment of a statutory tenant could be asked for before the expiration of the period of six years if he had not paid or tendered rent within three months of the service of notice requiring him to pay the rent. It was a composite notice which was served by the respondent inasmuch as it gave him intimation regarding the transfer of the house and also required him to pay rent. It was served on 23rd November, 1974 and the ejectment application was filed on 6th March, 1975, that is after three months of the service of notice. Thus, the application in the amended form, in which the ground of default was also pressed, was competent both at the time when it was originally presented (6th March, 1975) as well when it was re-submitted (8th May, 1975), in the amended form. It was, therefore, not premature.
4. The next plea raised by the learned counsel for the appellant was that since the Code of Civil Procedure, which permits amendment of pleadings, did not apply to ejectment proceedings, the learned Rent Controller, had no jurisdiction to allow amendment of the ejectment application so as to enable the respondent to add the ground of default to that of the personal need for securing his ejectment. It is true that the Code of Civil Procedure is not strictly applicable to proceedings before the Rent Controller but as the procedural provisions contained in the said Ordinance are not exhaustive, no illegality is committed by the Rent Controller if he follows the principles of the said Code in so far as 8 they do not offend against the provisions of the said Ordinance. It has not been laid down anywhere in the said Ordinance that amendment of / pleadings shall not be allowed in any case. 1 am, therefore, unable to agree with the learned counsel for the appellant that the learned Rent Controller had no jurisdiction to allow the amendment in question.
5. One more point canvassed by the learned counsel for the appellant was that after the purchase of the shop by the respondent he had not served the appellant with notice, under section 13-A, of the said Ordinance and, therefore, the order of ejectment could not be passed against him. This plea was not raised by him in his reply to the ejectment application. It was presented by him, for the first time, while replying to the respondent's application for striking off his (appellant's) defence due to his failure to deposit rent in terms of the direction of the learned Rent Controller. Thereafter, the respondent had no occasion to allege the service of such notice or refute the plea raised by.
The appellant. Even if the respondent had not served a notice under section 13-A, on the appellant it would not invalidate the order of eviction made by the learned Rent Controller. Such a notice has significance in regard to the default which is committed before the launching of ejectment proceedings and constitutes cause of action therefore but it has no bearing on the default made in the compliance of the direction of the Rent Controller for deposit of rent during the course of those proceedings, the former having been dealt with in subsection (2) of section 13, of the said Ordinance and the latter in subsection (6) of section 13, thereof.
6. Lastly, it was urged by the learned counsel for the appellant that although the appellant had raised an objection that the description of the disputed property, as given in the ejectment application, was no correct, the Rent Controller had ordered his ejectment without deciding that objection. The argument proceeds that while seeking eviction of the appellant, the respondent had not only asked for his ejectment from the property transferred to Nazir Ahmed and purchased by him (respondent) but also from some property owned by him (appellant). I have gone through the appellant's reply to the ejectment application. No doubt, in that reply he had objected to the description of the property in dispute but it was not alleged by the appellant that some of the property from which his ejectment was sought belonged to him (appellant) and not the respondent. It was also not pleaded by him that the relationship of landlord and tenant did not exist between the parties in respect of the entire property involved in the ejectment proceedings. In the circumstances, the plea of the appellant relating to the description of the property is of little consequence.
7. In the end, learned counsel for the appellant prayed that in the event of the dismissal of the appeal in limine, the appellant may be granted reasonable time to vacate the disputed shop. The respondent, who is himself present in Court, alongwith his two Advocates, namely, Mirza Naseer Ahmed and Mr. Abdul Hafeez, in connection with a Civil Miscellaneous Petition made in the instant appeal, has no objection to his vacating the shop within a month.
8. Since there is no merit in this appeal, it is dismissed in limine. However, in view of the above concession by the respondent, I direct that the order of ejectment passed against the appellant shall not be executed for one month. Appeal dismissed.
1980 C LC [Lahore] Before Muhammad Ilyas, J Q. QURESHI -Appellant versus Sardar RANJHEY KHAN FAROOQ-Respondent Second Appeal from Original Order No, 123 of 1979, decided on 29th January, 1980.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- -- S. 13 read with S. 2 (d)-Application for ejectment-Relationship of landlord and tenant-Mere fact that Rent Controller had not framed an issue regarding relationship of landlord and tenant and had not called upon parties to produce evidence thereon-Held, does not, by itself, constitute a valid ground for finding fault with his order to effect that there was such relationship between parties. Where Additional District Judge had, on appeal, taken exception to order of the Rent Controller for reason that he had failed to frame an issue and record evidence in regard to dispute relating to relationship of landlord and tenant between parties : Held, it is true that when such a dispute is raised in a case the Rent Controller cannot assume jurisdiction therein unless the dispute is resolved by him in favour of the person who has filed the case, but it is not always necessary to frame an issue in the formal context and also record evidence thereon. If there is sufficient material on the record to satisfy the Rent Controller that the- relationship of landlord and tenant does exist between the parties he can record a finding in this behalf and proceed further with the case without framing an issue and recording evidence in respect of the existence of the tenancy. However, if the material on the record does not enable the Rent Controller to conclude the controversy, he should frame an issue and invite the parties evidence thereon, and then decide whether the relationship of landlord and tenant exists between the parties. Therefore, the mere fact that the Rent Controller had not framed an issue regarding the said relationship and had also not called upon the parties to produce evidenee thereon did not. By itself, constitute a valid ground for finding fault with his order to the effect that there was relationship of landlord and tenant between the parties. Jp. 1460]A Muhammad Shari! v. Sh. Muhammad Amin PLD 1977 Lab. 516 and Raja Muhammad Afza! Khan etc. v. Zarrena Akram etc. PLD 1977 Lab. 662 rel.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) - - Ss. 2 (d) & 13-Landlord and tenant-Relationship of-Tenancy created for a period of eleven months and parties agreeing that in event of lessee holding over after expiry of lease he shall continue . Paying agreed rent---Lessee not denying execution of lease deed but objecting to its admissibility on ground that it was not duly stamped and registered-Lessee complying with directions of lessor regarding payment of rent of premises to another person-Sufficient material - on record to establish relat:onship of landlord and tenant between parties and lessor to be treated as landlord for purpose of proceedings under Ordinance-Held, Rent Controller, on such material. Rightly brushed aside plea of lessee without framing an issue in matter and recording evidence thereon--Order of Rent Controller regarding deposit of rent-Held, unexceptionable- Striking off his defence and ordering ejectment of tenant for non-compliance with such order was also justified. [pp. 1460, 1462)B et seq & C G. Haider Alghazali for Appellant. Hakam Qureshi for Respondent.
Date of hearing : 3rd December, 1979.
' The facts giving rise to this second appeal are that the appellant, Q. Qureshi, made an application against the respondent, Sardar Ranjlaey Khan Farooq, for his ejectment from a house on the grounds of default and personal need. The respondent resisted the application inter anti on the ground that the relationship of landlord and tenant did not exist between the parties: The Rent Controller, before whom the application was pending, however, without framing an issue in this behalf and without recording the parties' evidence thereon reached the conclusion, vide his order dated the 13th December 1977, that the respondent was occupying the house in dispute as a tenant under the appellant. He therefore, elected him to deposit arrears of rent as also the future monthly rent. The ' respondent complied with the order of the learned Rent Controller to some extent but committed default in regard to the deposit of certain rent in terms of his order. The Rent Controller, therefore, struck off his defence and ordered his ejectment.
2. Feeling aggrieved by the order of the learned Rent Controller, the respondent went in appeal before an Additional District Judge. The view taken by the learned appellate authority was that as the learned Rent Controller had not framed an issue regarding the existence of relationship of landlord and tenant between the parties and had also not recorded any evidence in this behalf, his order regarding deposit of rent was not sustainable. It was also held by him that since the learned Rent Controller had not made an appropriate order in regard to the controversy in respect of the said relationship, "no question of striking out the defence can arise". He, accordingly accepted the appeal, set aside the ejectment order and remanded the case to the learned Rent Controller with "the direction that he shall frame an issue in regard to the existence or non-existence of relationship of landlord and tenant between the parties and decide the question of jurisdiction in the first instance before passing fresh order directing the appellant to deposit the arrears of rent or and to make payment of monthly rent".
3. Being dissatisfied with the order of the learned Additional District Judge, the appellant has come up in second appeal to this Court.
4. Learned counsel for the appellant contended that there was sufficient material on the record to show that the relationship of landlord and tenant existed between the parties and that the objection raised by the respondent in this behalf was frivolous and without substance. He, therefore, maintained that the learned Rent Controller was justified in not framing an issue and recording evidence in respect of the said relationship. In this connection, he invited my attention to the reply of the respondent to the ejectment application, copy of the lease-deed placed on record by the appellant, copy of notice served by the respondent on the appellant's son and copies of receipts relating to the payment of rent.
5. On the contrary, the learned counsel for the respondent urged that the, lease deed was not admissible in evidence as it was not duly stamped and registered. As regards the reply submitted by the respondent to the ejectment application and the notice served by the respondent he submitted that there was no clear admission by the respondent that he was occupying the disputed house as a tenant under the appellant. While commenting on the copies of the receipts relating to the payment of rent it was pleaded by him that they had not been duly proved before the order relating to the deposit of rent was passed by the learned Rent Controller.
6. While making order relating to deposit of rent, the learned Civil Judge repelled the respondent's objection . Relating to the non-existence 61 relationship of landlord and tenant between the parties for the reasons that in view of the notice served by the respondent on 23rd May, 1975 the reply submitted by him to the ejectment application and the 'Copy of the lease agreement it was clear, beyond any doubt, that prima facie, the aforesaid relationship was there between the parties. In regard to the lease deed the learned Rent Controller observed that its evidentiary value would be considered at the stage of evidence and arguments, It seems that the said observations were made by him in view of an objection raised by the respondent, in his reply to the ejectment application, that the lease deed was not duly stamped and registered and as such it could not be received in evidence. With reference to the respondent's reply to the ejectment application, the learned Rent Controller pointed out that it was asserted by him in that reply that all the rent had been paid which clearly showed that there was relationship of landlord and tenant between the parties.
7. As stated above, one of the reasons for which the learned Additional District Judge had taken exception to the above order of the learned Rent Controller was that he had failed to frame an issue and record evidence in regard to dispute relating to the relationship of landlord and tenant between the parties. It is true that when such a dispute is raised in a case the Rent Controller cannot assume jurisdiction therein unless' the dispute is resolved by him in favour of the person who has filed the case, but it is not always necessary to frame an issue in the formal context and also record evidence thereon. If there is sufficient material on the record to satisfy the Rent Controller that the relationship of landlord and tenant does exist between the parties he can record a finding in this behalf and proceed further with the case without framing an issue and recording evidence in respect of the existence of the tenancy. However, if the material on the record does not enable the Rent Controller to conclude the controversy, he should frame an issue and invite the parties evidence thereon, and then decide whether the relationship of landlord and tenant exists between the parties. Therefore, the mere fact that the learned Rent Controller had not framed an issue regarding the said relationship and had also not called upon the parties to produce evidence thereon did not, by itself constitute a valid ground for finding fault with his order to the effect that there was relationship of landlord and tenant between the parties. Muhammad Sharif v. Sh.
Muhammad Amin (I) and Raja Muhammad Afzal Khan etc. v. Zarrena Akram etc. (2) are the authorities in point.
8. The real question to be considered in this case, therefore, is whether there was adequate material on the record to convince the learned Rent Controller that there was no merit in the objection raised by the respondent that he was not occupying the disputed property as a tenant under the appellant. It is not disputed that the house in question is owned by Akbar Qureshi, who, according to the appellant, is his minor son. The lease deed referred to above was executed by the appellant as natural guardian of Akbar Qureshi in favour of the respondent. The' tenancy was created for a period of 11 months commencing from 22nd November, 1973 and ending on 22nd October, 1974 and it was agreed that in the event of the lessee (respondent) holding over after the expiry of the lease or agreed extension, he shall continue paying the agreed rent as B demanded by the lesser (appellant) till he vacated the premises. The ejectment application was filed in the year 1977. It would, therefore, follow that the respondent was holding over the disputed property on the basis of the aforesaid clause in the lease agreement. According to that clause the rent was to be paid by the respondent to the appellant and, therefore, the latter was a landlord within the meaning of clause (d) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter (1) P L P 1977 Lah. 516 (2) PLD 1977 Lab. 6Q referred to as the Ordinance. The respondent did not deny the execution of this lease deed and simply objected to its admissibility on the ground that it was not duly stamped and registered.
9. Now, I advert to the respondent's reply to the ejectment application. In this reply, the respondent had denied the relationship of landlord and tenant between the parties but had repeatedly averred that he was not a defaulter. In paragraph 8(a) he said :- "All the rent has been paid."
' It was not asserted by the respondent that he was himself owner of the disputed property nor it was alleged by him that any person other than the appellant was his landlord. He also did not name the person other than the appellant to whom, according to him, all the rent had been paid.
10. This brings me to notice, dated the 23rd May, 1975 served by the respondent on Akbar Qureshi son of the appellant (Q. Qureshi). Although in his reply to the ejectment application, while referring to the lease deed, it was contended by the respondent that "legally a minor cannot enter into a legal and valid contract, therefore, even on that score minor Master Akbar Qureshi has nothing to do with the property in question "yet in the said notice it was conceded by him that he was a tenant of Akbar Qureshi. As for the payment of rent, the relevant portion of the notice reads thus :- "(2) That my said client has paid as desired by you a sum Rs, 7,336 (Rupees seven thousand three hundred and thirty-six only) representing the rent for the months of December, 1974 to 22nd March, 1975 to Mr. M. A. Ghaffar Khan, Lahore in pursuance of letter dated 14th May, 1975 issued by Mr. Q.
Qureshi for which Mr. M. A. Ghaffar Khan issued a duly stamped receipt.
' My said client has always been ready, willing and capable to pay the remaining amount of rent of Rs, 14,672 (Rupees fourteen thousand six hundred and seventy-two only) representing rent for the said Bungalow at the said rate for the period from 23rd of March, 1975 to 21st of November, 1975.
However, no one approached me said client to receive the same despite his keen desire to pay."
' These contents of the notice indicate that the respondent had paid rent to Mr. M. A. Ghaffar Khan as directed by the appellant, Q. Qureshi. This clearly implies an admission on the part of the respondent that the appellant had the authority to direct the respondent to pay rent to him or any other person nominated by him.
11. As for the receipts retarding the payment of rent by the respondent, which were placed on the record by the appellant, they were issued by Mr. M. A. Ghafrar Khan. As pointed out a little earlier, it was admitted by the respondent in his aforesaid notice that, under the instructions of the appellant, he had paid rent to Mr. M. A. Ghaffar Khan.
12. It would, therefore, be observed that there was lot of material on the record touching the controversy raised by the respondent in connection with the relationship of landlord and tenant between the parties. Even if the lease deed is not taken into- consideration for the purpose of deciding that controversy, in the notice served by the respondent on Akbar Qureshi son of the appellant, the respondent had clearly acknowledged the appellant as the person who was authorised to give directions relating to the payment of rent by the respondent inasmuch as the respondent had, admittedly, paid rent to Abdul Ghaffar in compliance with his (appellant's) direction. It can hardly be disputed that if the respondent had the authority to give direction regarding the payment of rent to another person he was also entitled to receive the rent himself by telling the respondent that the same shall be paid to him. According to the definition of the landlord as given in clause (d) of section 2 of the Ordinance "any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of the other person, or as a trustee, guardian, receiver or administrator for any other person" is a landlord. Thus, in view of the above admission of the respondent, as recorded in his notice, the appellant can be treated as his landlord for the purpose of proceedings under the Ordinance.
13. The upshot of the foregoing discussion is that the plea of denial of tenancy raised by the respondent was frivolous and vexatious and there was sufficient material on the record on the basis of which the learned Rent Controller had rightly brushed aside his plea without framing an issue in the matter and recording evidence thereon. The order of the learned Rent Controller regarding the deposit of rent is, therefore, unexceptionable. Since c that order was, admittedly, not complied with by the respondent, to some extent, the Rent Controller was justified in striking off the defence of the respondent and ordering his ejectment.
14. In this view of the matter, the order passed by the learned Additional District Judge by which he had set aside the ejectment order made by the learned Rent Controller cannot be upheld. As a result, I accept the appeal with costs, set aside the order of the learned Additional District Judge and restore that of the learned Rent Controller. The respondent is, however, allowed a period of four months to vacate the premises in dispute.