1. ' This is a second appeal under subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, as it was prior to its amendment by N.-W. F. P. Ordinance No, IX of 1979.
2. The amending Ordinance had come into force on 3rd October, 1979. The question had, therefore, arisen at the time of hearing of this appeal in motion as to whether in view of the abolition of the right of second appeal by subsection (7) of the newly substituted section 15 this appeal was competent or not. I had held in my order dated 23-1-1980 that since the right of appeal is a "vested right" which inheres in a party from the commencement of the action in the Court of first instance and at the time when the application for ejectment was instituted this right was available to the appellant and there is no provision in the amending Ordinance that it has to have retrospective operation nor it follows by necessary implication from its terms, therefore, the appeal was competent. The appeal was, however, admitted by me to consider the question as to whether, in the circumstances of this case, it was proper for the learned Rent Controller, in view of the law laid down in Nisar Ahmad v. Nazar Muhammad (1) to pass an order of ejectment against the appellant on the decision of the preliminary issue of the existence or otherwise of the relationship of landlord and tenant alone?
3. ' The facts in the case of Nisar Muhammad were like this. Respondent had filed an application for ejectment of the appellant under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 from a portion of the property on the ground that appellant had failed to pay rent despite notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The application was resisted by the appellant. It was pleaded that relationship of landlord and tenant did not exist between the parties hence respondent was not liable to be paid any rent. The Rent Controller framed two preliminary issues viz, (1) whether relationship of landlord and tenant exists between the parties ? And (2) whether notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was served upon the appellant? The Rent Controller found both the issues against the appellant. The findings on these issues were not challenged by the tenant. And although the appellant had been pleading not only in his written statement but also in his statement before the Rent Controller that he had not paid any rent to the {{FOOT NOTE}}
(1) PLD 1974 Lah. 489 {{FOOT NOTE}} ' respondent as there was no relationship of landlord and tenant between the parties, the Rent Controller adjourned the case for determination of rent to be paid by the appellant for the disputed period. However when the case came up ultimately before him on 30-5-1972 he passed an order of ejectment of the appellant for the reason that since the relationship of landlord and tenant bad been found to be existing between the parties and the appellant had admittedly not paid any amount of rent to the respondent, therefore, there was no need to determine the amount of rent to be paid.
4. ' This order was challenged in appeal before the High Court on the ground that the learned Rent Controller had no jurisdiction to recall his previous order whereby the case was adjourned for determination of the amount of rent under section 13 (6) of the Ordinance. It was contended before the High Court that the alleged default or non-payment of rent on the part of the appellant should have been enquired into by the Rent Controller and he should have determined under what circumstances said default was committed. The argument was, however, not accepted. It was held that there was no question of 'recalling' the previous order in the circumstances of the case. Rent Controller had in fact not actually determined the rent at any stage of the proceedings and before passing any such order in this behalf under section 13 (6) of the Ordinance he was within his jurisdiction to see as to whether any such order was necessary to be passed or not. Moreover when the plea of the appellant that he was not a tenant of the respondent was found to be false, he could not be permitted to approbate and reprobate by holding further enquiry into the matter. In this context two earlier judgments of the High Court Muhammad Ismail v. Israr Ahmad (1) given by a learned Division Bench and Mehdi Hassan v. Ghulam Muhammad etc. (2) by Sardar Muhammad Iqbal, J. As he then was were referred to. In the former, case due to the difference in views of the learned Judge deciding the case of Ryas Dobash v. Muhammad Iqbal (3) and Mr. Justice S. Anwarul Haq as he then was while hearing the appeal of Muhammad Ismail before him as to the true construction of subsection (6) of section 13 of the Ordinance, the matter was referred to his Lordship Mr. Justice Muhammad Yaqoob Ali. The following observations in paragraph 6 of the judgment of the learned Judge with whom Mr. Justice Anwarul Haq agreed are useful for the determination of the question involved in the present case :- "The Ordinance has been promulgated to provide a number of safeguards for the tenants and restricting the rights of ownership of the landlords. It accordingly postulates that no tenant will by falsely denying relationship of landlord and tenant deprive himself of those safeguards and that is why there is no express provision in the Ordinance, or any one of its predecessor enactment, for adjudicating upon such a controversy. But as the terms "landlord" and "tenant" are defined in the Ordinance, it necessarily implies that the Rent Controller has the jurisdiction to determine the relationship between the parties. The omission of a provision to that effect in section 13 (6) of the Ordinance is thus satisfactorily explained on this hypothesis, This being the starting point the interpretation of section 13 (6) does not present any real difficulty. The term used in it is "tenant" and not "respondent". In an action for eviction if the respondent denies that he is a tenant under the petitioner, the Controller must put the controversy in an issue and {{FOOT NOTE}}
(1) PLD 1961 Lah. 601 (2) PLD 1964 Lah. 64$
(3) PLD 1960 Lah 1112 {{FOOT NOTE}} ' determine whether the plea raised in defence has merit. If the answer be that the respondent is a tenant under the petitioner section 13 (6) of the Ordinance will immediately come into operation and the Controller may pass such orders as he deems fit in the circumstances of the case. Cases of this nature must necessarily be very few if this will meet the criticism that in putting this interpretation on section 13 (6) its object, namely that the landlord may not be deprived of the rent due to him during the pendency of an action for eviction, will be destroyed. The risk of adopting a false plea of this kind by a tenant is manifest. For example, in an action for eviction for non- payment of rent the tenant will be precluded from pleading and leading evidence to the effect that he was not in default as the pleas that he was not a tenant under the petitioner and that he had been paying rent to him on due dates, will be mutually destructive."
5. (The underlining* is mine).
6. ' In Mehdi Hassan's case reference was made to the aforementioned decision and it was observed that- "I am in respectful agreement with the observation of their Lordships of the Division Bench. It, however, depends on the facts and circumstances of each case whether further enquiry in a case is called for or not. If a respondent does not deny an allegation made against him that he had failed to pay the rent and alleges, on the other hand, that he was not a tenant of the petitioner, he, of course, cannot be permitted to plead the payment of rent after it is held by the Rent Controller that he is, in fact, the tenant. These pleas in their context will be destructive of each other. He cannot be permitted to raise such pleas on the well-established principle that no person can be permitted to approbate and reprobate."
7. Thus at least in three judgments, the principle that the tenant will be precluded from leading evidence to show that he was not in default, when his plea that he was not a tenant has been found to be false and it is also admitted by him in his pleadings and or in his evidence in Court or it is otherwise established on record that he had not paid any rent to the petitioner and in the absence of any specific plea that he had not paid rent because there were bona fide and legitimate reasons to do so, has been recognized. And in such circumstances it would be futile indeed to allow the appellant to prove that he has paid rent to the respondent. If such a course is adopted it would amount to abuse of the process of the Court. Then any tenant in an action for eviction can raise frivolous plea of non-existence of relationship of landlord and tenant between him and the petitioner, have a preliminary issue framed, admitting non-payment of rent at the same time or raising vague and ambiguous pleas and failing to set up the cause or circumstances in which default was committed by him. More often than not one comes across such practices. The relationship is denied. A preliminary issue is framed whether relationship of landlord and tenant exists between the parties. And then every endeavour is made to prolong the proceedings and sometimes months nay years pass before the issue is decided. The findings not otherwise appealable are immediately challenged in appeal and in some cases it consumes another couple of years before the appeal is finally determined. This, however, does not discourage the tenant to invoke the provisions of subsection (4) of section 15 of the (unamended) Ordinance and file second appeal in the High' Court. This not only results in frivolous and unnecessary litigation but also wastes valuable time of the Court and may as well constitute an abuse of the process of the Court.
8. Therefore in my view when a person for no good an valid reasons denies that he is a tenant and also admits that he has not paid any rent or sets up no plea that default was committed by him in circumstances which would not make him liable to eviction or it is evident from record that no rent has been paid by him, it would be permissible for Rent Controller, after deciding that he is a tenant, to pass an order of his ejectment. In the circumstances it is not required of him to prolong the proceedings. Why should a person be allowed to approbate and reprobate ?. Why should he not be estopped by his conduct and precluded from proving something which is opposed to his plea?
9. ' By this, however, I should not be taken to mean that where a person denies his tenancy and it is proved subsequently that he is ,a tenant then an order of his ejectment must in all cases be passed against him. This would depend upon the facts of each case. There may be a case in which the title of the landlord may be under clouds. There may be circumstances in which tenant may be justified in withholding payment of rent. In such cases it would be necessary to pass an order under section 13 (6) of the Ordinance and proceed with the matter further in accordance with law. And this was also held in Nooruddin and another v. Muhammad Qasim and 6 others (Y) This is what appears in paragraph 8 of the report :- "The question of the propriety of recording evidence on the question of a tenant's failure to pay rent must always depend on the farts and circumstances of a case. Thus, for example if, in order to justify his admitted non-payment of rent, a tenant raises a frivolous objection to the landlord's title, then the Rent Controller may be justified in ordering the eviction of the tenant because of his admission about the non-payment of rent without recording evidence, provided that the landlord drops his claim to the arrears of rent."
10. ' Viewed in this context, the orders impugned in this appeal, in the facts and circumstances of this case, seem to be unexceptionable. Late Mst. Maqbool Jan now represented by the appellants was a tenant under Haji Ghulam Habib Gul, predecessor of the respondent, on payment of rent at the rate of Rs, 10 per mensem. This is contained in first para. Of the application for ejectment and appellant has in her reply admitted it to be correct. The house fell to the share of his daughter namely respondent. A notice under section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959 was served on Mst. Maqbool Jan by the respondent by registered Post A/D informing her to pay rent to her. This notice was duly received by her on 17-9-1973 as is evident from the original A/D Card Exh. A. W. 1/4. She did not pay rent and consequently respondent brought a claim for her eviction in the Court of Rent Controller on 23-12-1975 on the grounds of default as well as reconstruction. Despite admitting that she was a tenant in the house in question under the father of respondent before his demise she raised a frivolous objection that respondent had no cause of action because relationship of landlord and tenant did not exist. She denied even the receipt of notice and pleaded that she did not admit tenancy because there was no rent deed between her and the respondent. In his statement respondent's husband appearing on her behalf not only proved the tenancy of the appellant but also the notice dated 14-9-1973 (Exh. A. W. 1/2 and further deposed that the appellant had not paid any rent from November 1974 onwards. He was not cross- examined at all. As against this Faqir Hussain (R. W. 1) stated that the house was owned by Mst.
11. Maqbool Jan and she had never paid rent to {{FOOT NOTE}}
(1) PLD 1976 Kar. 921 {{FOOT NOTE}} ' any one. Mst. Maqbool Jan also claimed that she was owner of the house, a plea not taken in the written statement and in fact contrary to her admission that she had been a tenant under the father of the respondent. She did not say that she had paid rent to the respondent. Thus where non-payment of rent was not denied nor any reasonable plea for non-payment was set up in the written statement or in her statement in Court the learned Rent Controlled was perfectly justified, on decision of this issue, to pass an order of her eviction. In the facts and circumstances of this case it was not required or necessary to proceed further in the matter. Therefore I see no justification to interfere in the orders impugned.