This writ petition calls in question an ejectment order passed against the petitioner, Feroze Khan.
The petitioner has since died and is represented by his legal heirs. The order of eviction was made on an application filed by respondent No. 1, Mst. Mehraj Begum, hereinafter referred to as the respondent. It was, inter alia alleged by her that the petitioner was a defaulter. While resisting the application for ejectment, it was denied by the petitioner that he was occupying the disputed premises as a tenant. After framing an issue in this behalf and recording evidence thereon, it was held by a Rent Controller that the relationship of landlady and tenant did exist between the parties.
In view of this finding, the learned Rent Controller ordered eviction of the petitioner without holding inquiry into the question of default. The petitioner filed an appeal but in vain. He, therefore, invoked the constitutional jurisdiction of this Court to challenge the orders of the two tribunals below.
2. It appears that the learned Rent Controller had ordered eviction of the petitioner by applying the principle that no one can be allowed to approbate and reprobate simultaneously. In the present case, while denying tenancy, the petitioner had refuted the plea of default. It was contended by Mr. S. M. Zafar, learned counsel-for the petitioner, that the said principle would apply to those cases of ejectment in which, while denying the tenancy, the default is admitted by the respondent, but it cannot be extended to cases like the one in hand in which, while not acknowledging the existence of tenancy, the plea of default is controverted. In this connection, he invited my attention to the cases reported as Mehdi Hassan v. Ghulam Muhammad etc. (1), Muhammad Hussain v.
Muhammad Bashir and 4 others (2), Nisar Ahmad v. Nazar Muhammad (3), Nooruddin and another v. Muhammad Qasim and 6 others (4), Amanullah Khan (A. Khan) v. Chotey Khan (5), Sikandar Khan v. Muhammad Amin (6), Abdul Khaliq Qureshi v. Saeed Hassan Shah and 5 others
(7) and Khadim Hussain and others v. Mst. Farooqa Gul (8).
3. In reply, it was submitted by Mr. Muhammad Arif, learned counsel for the respondent, that the contention raised by the petitioner that there was no relationship of landlady and tenant between the parties because he was the owner and partner of the disputed premises was false and contuma--cious, and, therefore, the learned Rent Controller was not obliged to hold inquiry ' into the question of default after he had found that the petitioner was occupying the disputed premises as a tenant under the respondent. It was also pointed out by him that it was not clearly asserted by the petitioner that he had paid the entire rent in respect of which default had been alleged in paragraph 3 of the ejectment application. Instead, he had vaguely traversed the allegation of default in the following words :- This plea, according to the learned counsel was destructive of the plea of denial of tenancy. It was, therefore, empbasised by him that the petitioner was estopped from claiming inquiry into the question of default because he could not be allowed to approbate and reprobate at one and the same time. He cited Muhammad Ismail v. Israr Ahmad (9), Nisar Ahmad v. Nazar Muhammad, Muhammad Siddique v. Naseer Ahmad (10), Abdul Rashid v. Muhammad Akhtar and. Another (11) and Muhammad Bux and another v. Ghulam Rasool (12) to support his submissions.
4. It is true that each of the tenants involved in the cases of Mehdi Hassan, Muhammad Hussain, Nisar Ahmad, Nooruddin and another, Amanullah Khan (A. Khan), Sikandar Khan, Abdul Khaliq Qureshi and Khadim Hussain and others, which were relied upon by learned counsel for the petitioner, had admitted default and his ejectment was ordered when his plea of denial of tenancy had failed, but it has not been laid down therein that the order of ejectment could not have been passed if the default had not been admitted. On the other hand, in the case of Nisar Ahmad, cited by learned counsel for the petitioner, and in the case of Muhammad Ismail, referred to by learned counsel .For the respondent, such observations were made as give clear indication to the effect that the ejectment of a tenant who has unsuccessfully denied the existence of tenancy can be ordered, without holding inquiry into the question of default, even if he has not conceded the plea of default. In this regard, the remarks made in Nisar Ahmad's case read as follows :- (1.) PLD 1964 Lab. 648(2) PLD 1974 Lab. 446
(3) PLD 1974 Lab. 489(4) PLD 1976 Kar. 921
(5) 1978 SCMR 14(6) PLD 1979 Kar. 59
(7) 1979 CLC 118(8) 1981 CLC 15
(9) PLD 1961 Lab. .601(10) PLD 1976 Lab. 1078
(11) 1980 C L 0.1141(12) PLD 1982 Kar, 28 "A person who does not acknowledge the relationship of landlord and tenant between the parties has no right to plead after finding in this regard against him for any further inquiry, under the said provision. He is estopped by his conduct to plead that since he has been found to be a tenant, therefore, he should be allowed to prove the payment of rent."
Relevant observations made in the case of Muhammad Ismail, while interpreting the provisions of section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, are to the following effect :- "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'. Id 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 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 and 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." (Underlining' is by me).
These observations leave no room for doubt that a tenant failing on issue relating to the existence of tenancy cannot be allowed to plead payment of rent or adduce evidence in the matter. This means that his ejectment can be ordered on the ground of default, without holding investigation into the question of default, as soon as he loses on the issue of tenancy.
5. Learned counsel for the petitioner relied heavily on following caveat appearing in the case of Abdul KhaliqQureshi for supporting his submission that a probe into his plea of payment of rent is required to be held even after inquiry into the issue in regard to the existence of tenancy has resulted in an adverse finding against the tenant;- "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 or 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."
I feel that these observations do not support the proposition as put forth by learned counsel for the petitioner. What the learned Judges wanted to convey by making the said observations was that when a tenant creates trouble for himself by simultaneously denying the tenancy and alleging payment or tender of rent he can be helped out of it by resolving the question of tenancy by recording better statement of the tenant and then holding regular inquiry into the plea of default.
This course can, however, be resorted to by the Rent Controller in those cases only in which there is "unimpeachable documentary evidence" of payment or tender of rent because such evidence would enable him to decide question in respect of the existence of tenancy without holding a full- fledged inquiry. In the present case, however, no such documentary evidence regarding payment of rent was placed on the record at the time of filing of the pleadings and since the petitioner had categorically denied the relationship of landlady and tenant between the parties, by alleging title to the disputed property, the learned Rent Controller was compelled to frame issue regarding the existence of the said relationship. And record evidence thereon before holding that the petitioner was occupying the property in question as a tenant under the respondent. The caveat entered in the case of Abdul Khaliq Qureshi is, therefore, of little avail to the petitioner.
6. The view that on the basis of material on the record the plea of denial of tenancy can be repelled without framing an issue and recording evidence thereon was expressed not only in the case of Abdul Khaliq Qureshi but also in the cases reported as Muhammad Sharif v. - Sh. Muhammad Amin (1), Raja Muhammad Afzal Khan etc. v. Zareena Akram et.,. (2) and Q. Qureshi v. Sardar Ranjhey Khan Farooq (3). According to these authorities, the cases of denial of tenant can be divided into two categories. On category will be of the cases in which no inquiry is required to be held for rejecting the plea of denial of tenancy. In the other category will fall those cases in which it becomes necessary to hold such an inquiry. In the cases of first category, inquiry into the question of default can be held even after the respondent's plea has been repelled on the basis of material on the record but in the cases of second category no inquiry into the question or default would be called for and, on the principle of approbate and reprobate, the respondent would not be allowed to prove payment or tender of rent after he is proved to be a tenant. In other words, in view of finding on the issue of tenancy he would be treated as a defaulter. The instant case, as explained above, is a case of second category.
(1) PLD 1977 Lah. 516 (2) PLD 1977 Lah.662
(3) PLJ 1980 Lab. 171
7. I believe that the principle of approbate and reprobate is more aptly applicable to the cases in which default is denied than the cases in which it is admitted, because the averment of non- payment of rent is: in consonance with the plea of denial of tenancy but the assertion of payment of rent is destructive of the said plea. As explained by me in the afore--mentioned case of Abdur Rashid, with reference to the definition of the word "tenant" appearing in clause (i) of section 2 of the Punjab Urban Rent Restriction Ordinance, 1959, if the respondent in an ejectment case is not a tenant, he need not pay the rent ; and if he has paid the rent, he cannot deny the existence of tenancy. It is, therefore, for him to plead absence of tenancy or assert payment of rent ; and if he does both, he will be estopped from proving payment of rent after it is found, as a result of an inquiry, that the relationship of landlord and tenant does exist between the parties to the ejectment proceedings. To hold otherwise will, in my humble opinion, amount to allowing him to abuse the process of law. I, therefore, do not agree with learned counsel for the petitioner that the principle of approbate and reprobate is not attracted to cases in which default is not admitted.
8. Resultantly, I hold that if a tenant facing ejectment proceeding on the ground of default compels the Rent Controller to hold inquiry into the question of existence of tenancy and such inquiry culminates in an adverse finding against him he shall be deemed to be a defaulter regardless of the fact that the plea of default is conceded or controverted by him.
9. In the present case also, the learned Rent Controller felt constrained to hold inquiry into the issue relating to the existence of tenancy and that inquiry had resulted in a finding against the petitioner.
He was, therefore, rightly treated as a defaulter due to his failure on the said issue.
10. I am conscious of the rulings of the superior Courts to the effect that even if default is established, ejectment may not be ordered if there ace circumstances showing that the default was not wilful. There are, however, no such circumstances in the present case. The petitioner had denied that he was a tenant and had claimed to be owner/partner of the disputed property. The respondent's plea was that the tenancy between the parties was created by means of a rent deed but its execution was denied by the petitioner by maintaining that there was no such document and if there was any, it was forged and fictitious. Ultimately, however, when he was in witness-box and was under cross-examination he could not help admitting its execution. It can, therefore, be easily gathered that his plea in regard to the existence of tenancy was false, frivolous and vexatious. It was not at all bona fide. There are, therefore, no equities in his favour for which the order of eviction could be withheld. This view derives support from the cases of Muhammad Siddique and Muhammad Bux and another, cited by learned counsel for the respondent.
11. What emerges from the above discussion is that the order of eviction made against the petitioner does not call for any interference. The writ petition, therefore, fails and is dismissed with costs. The respondent is, however, allowed three months' time to vacate the disputed premises.
12. Before parting with this case I will like to point out that although at the time of admission -of the .
Present petition it was urged by learned counsel for the petitioner that the disputed building was a factory and, therefore, the Rent Controller had no jurisdiction to hear the ejectment application yet this plea was abandoned by him at the time of regular hearing of the writ petition. It has, there, not been examined by me.