1. (a) This second appeal is directed against the orders dated 25th September, 1975 and 28-2-1976, passed by the learned Rent Controller, Thul, and the learned Additional District Judge, Jacobabad, respectively in Rent Application No. 1/74 and Civil Miscellaneous 37/75, respectively.
The brief facts leading to the filling of the above appeal are that the respondent filed an ejectment application on 6-12-1969 on two grounds, namely, default in payment of rent commencing from 9- 8-1969 till the time of the filing of the above application and also on the ground of personal requirement. The appellant resisted the above application, it was inter alia pleaded that there did not exist any relationship of landlord and tenant between the parties. The appellant had also pleaded that be had entered into a purchase agreement with one Balumal, the previous owner prior to the respondent. It may be advantageous to reproduce hereinbelow :- "4. As regards the contents of para. No. 2 of the application, it is submitted that the opponent No. 1 had coveted to purchase this property from its original owner for the consideration of Rs. 1,500 towards this price the amount of Rs. 500 was actually paid to Balumal on 7-6-1969, at Thul and balance was to be paid at the time of the registration of the sale deed. It is absolutely incorrect that the opponents ever paid any rent at the rate of Rs. 20 per month, to Balumal for this property.
In fact after payment of Rs. 500 towards the price settled between these opponents and Balumal no rent was ever paid to him."
(b) In view of the above pleas raised by the appellant, the learned Rent Controller framed a preliminary issue, namely `whether there exists the relationship of landlord and tenant between the parties. After recording of the evidence, the above issue was decided by the learned Rent Controller by his order dated 31st July, 1974 against the appellant. It seems that a tentative rent order was also passed on the same day by the learned Rent Controller. It further seems that the appellant being aggrieved by the above orders filed Civil Miscellaneous 31/74, which was dismissed by the learned District Judge by an order dated 16-12-1974. After that the learned Rent Controller framed following three further issues.
(i) Whether premises are needed in good faith to applicant for his bona fide personal use.
(ii) Whether opponent has committed wilful default in payment of rent.
(iii) Relief.
(c) After framing of the above issues, it seems that the present respondent filed an application on 10-2-1975 praying therein that in view of the denial by the appellant the relationship of landlord and tenant the ejectment order be passed without recording of the evidence on the ground of default.
The learned Rent Controller on the basis of the case of Nisar Ahmad v. Nazar Muhammad PLD 1974 Lab. 489, ordered the ejectment of the appellant on the ground of default without recording any evidence. The appellant being aggrieved by the above order filed aforesaid Civil Miscellaneous No. 31/74, which has also been dismissed by the learned Additional .District Judge, Jacobabad, through his aforesaid order dated 28-2-1976. The appellant being aggrieved by the above orders has filed the present second appeal.
2. (a) In support of the above appeal Mr. Ahmadullah Farooqui, learned counsel for the appellant has urged that it was obligatory on the part of the learned Rent Controller to record the evidence on the questions of default and personal requirement before passing the order under appeal.
Where it has been contended by Mr. Nooruddin Ramzan that since the facturn of default was admitted by the appellant inasmuch as he had denied the relationship, the learned Rent Controller acted in accordance with law in passing the order under appeal. In support of the above contention Mr. Ahmadullah Farooqui, has relied upon the case of Nooruddin and others v.
Muhammad Qasim and 6 others (PLD 1976 Kar. 921Whereas Mr. Nooruddin Ramzan has referred to the case of Nisar Ahmed v. Nazar Muhammad, the case of Muhammad Siddiq v. Naseer Ahmed (PLD 1976 Lah. 1078and the case of Amanullah Khan v. Chotey Khan (1978 S. C M R 14
(i) With reference to PLD 1976, Karachi, it may be observed that in the above case an ejectment application was filed against the appellant, who had denied the relationship. However, upon the framing of the preliminary issue, it was found that there was relationship of that of tenant and land--lord between the appellant and the respondent. The learned Rent Controller without recording any evidence on the question of default passed the eject--ment order on 9-12-1974 upon relying on the aforesaid Lahore case of Nisar Ahmed v. Nazar Muhammad. The appellant being aggrieved by the above order had filed a first rent appeal, which was also dismissed by the District Judge by his order dated 5-4-1975. After that the appellant had filed a second appeal, which was disposed of by the above judgment reported in the aforesaid PLD 1976 Kar. 921, by Dorab Patel, J. (as he then was) allowing the appeal. It may be advantageous to reproduce hereinbelow para. 8 of the judgment;-- "8. The question of the propriety of recording evidence on the question of tenant's failure to pay rent must always depend on the facts 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. But, if the landlord does not drop his claim for the arears of rent, evidence has to be recorded, unless the quantum of rent due has been admitted. Again, even when the quantum of rent due is admitted, there could be cases in which the failure to pay rent was justified ; therefore, in such cases it could be the duty of the Rent Controller to record evidence, and it was so in both the instant cases. Because the learned counsel for the respondents had not placed before the appellants the relevant facts and because the title of the respondents was under a cloud, the appellants were justified in withholding the payments of rent until the respondents had proved their title. And the respondents did not even make a reasonable attempt to prove their title until this appeal, because Mr. S. Ali Nazar had not stated in the Courts below that the respondents had filed an application to convert their pauper application into a suit. And as the appellants had not been informed of this application, they were entitled to assume that the compromise order was illegal, and this apart from the fact- that the title of the respondents was perfected by the lease obtained by them long after the institution of their eviction application. In this background, I have no doubt that the appellants were justified in withholding the payment of rent, and the fact that they were in arrears does not mean that they were not willing to pay rent.
This was, therefore, a very fit case for the exercise of discretion in favour of the appellants under section 13 of the said Ordinance, and the Courts below erred in law in not exercising that discretion.
Accordingly, I set aside the order under Appeal, directing the eviction of the appellants, and dismiss both the eviction application. The appeals are thus allowed with costs in this Court."
(ii) Reverting to PLD 1974, Lah. 489, it may be stated that in the above case also the tenant had denied the relationship of landlord and tenant and also the factum of service of a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned Rent Controller had framed two preliminary issues on above points, which were decided against the tenant on the basis of the evidence produced by the parties. The appeal preferred by the tenant against the above order was dismissed by the learned Additional District Judge, Lahore. The tenant filed a second appeal, which was also dismissed by Mr. Zakiuddin Pal, J. And it was held that the Rent Controller after holding that the relationship of landlord and tenant did exist was entitled to pass an ejectment order straightaway for the reason that the tenant having denied the relationship was estopped and precluded from pleading or proving, that he had paid rent.
(iii) As regards PLD 1976 Lah. 1078, it may be observed that the facts of the above case were that there was denial of the relationship and also denial of the service of a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by the tenant. The learned Rent Controller after framing the preliminary issues and after having decided the same against the tenant passed an ejectment order without recording further evidence on the question of default.
The above order was maintained in the first appeal. The tenant went in second appeal, but the same was also dismissed by the High Court, while dismissing the above appeal it was observed by Muhammad Afzal Zullah, J. (as he then was) that the principle of forfeiture of tenancy on account of false and contumacious denial of certain established and admitted facts quo relationship of landlord and tenant has correctly been applied.
(iv) With reference to the above-cited Supreme Court case, reported in 1978 SCMR 14, it will suffice to observe that the Supreme Court maintained the order of ejectment passed by the learned Rent Controller without recording evidence on the question of default after having decided the issue of relationship in favour of landlord. In this connection, it may be pertinent to reproduce hereinbelow the last but one para. Of the judgment, which reads as follows "It was next contended that there was divergence of opinion on the point as to whether the ejectment application could be allowed straightaway in case the tenant disputed the relationship of landlord and tenant. In support of the proposition that the ejectment applica--tion could not be allowed, the learned counsel placed reliance on Muhammad Hussain v. Muhammad Bashir and others (PLD 1974 Lah. 447). However, a different view was taken by another learned Single Judge of the same High Court in Nisar Ahmad v. Nazar Muhammad at page 489 of the same Report. But a learned Single Judge of the erstwhile High Court of Sind & Baluchistan in Nooruddin and another v.
Muhammad Qasim and others PLD 1976 Kar. 921 dissented from this view. The learned Single Judge in the High Court placed reliance on the case of Nisar Ahmad v. Nazar Muhammad in declining to remand the case to the Rent Controller. However, it will not be necessary to examine the validity of the reasons given for and against the view for the case as it stands, it is an admitted position that the petitioner has defaulted in the payment of rent as he did not account the respondent as his landlord. On this view of the matter it would not have served any purpose to remand the case for the issue of default could not have been disputed."
(b) From the cited and discussed cases, it is evident that if a tenant raises a frivolous plea and denies the title of his landlord or the relationship and if the Rent Controller on the basis of the evidence arrives at the con--clusion that the plea raised by the tenant was unfounded, in that event, the Rent Controller may not record any evidence on the question of default and may pass an order of ejectment straightaway on the above ground. It may be observed that Dorab Patel, J.
(as he then was) in the aforesaid Karachi case, reported in PLD 1976, Karachi 921, took somewhat a different view than what was found favour with Zakiuddin Pal, J. In the above-cited Lahore case, reported in PLD 1974 Lab. 489, inasmuch as it was held by Dorab Patel, J. That not in every case the Rent Controller is entitled to pass an order of ejectment straightaway without recording evidence on the question of default for the reason that in some cases denial of the relationship or the non- payment of rent may be justified on some cogent reason and in such a case, the Rent Controller had the discretion under section 13 of the late West Pakistan Urban Rent Restriction Ordinance, 1959 not to pass an ejectment order on the ground of default. However, there is no divergence in the view of the Lahore & Sind High Courts on the question that if a tenant raises a frivolous objection about the title or the relationship, in that event, the learned Rent Controller may pass an order of ejectment on the ground of default straightaway without recording any evidence on the above question. 1 am inclined to subscribe to the view found favour with Dorab Patel, J. In) the above- cited Karachi case.
3. (a) In the instant case as pointed out hereinabove, the appellant has inter alia raised the plea that he had purchased the property in question from its original owner. Balumal for a sum of Rs.
1,500 prior to the date of purchase by the respondent. He had also raised the plea that he had not paid any rent to said Balumal after the above agreement. It is surprising to note that when the learned Rent Controller recorded evidence on the aforesaid preliminary issue, the appellant did not come forward to support the plea raised by him in his written statement. He neither appeared as a witness nor produced any evidence in support of the averments contained inter alia in para. 4 of the objections quoted here inabove. From the above conduct of the appellant, it was evident that the plea raised by the appellant was frivo--lous and unfounded, and, therefore, the learned Rent Controller could pass an order of ejectment on the ground of default without recording any evidence as the factum of default stood proved by the denial of the relationship. Furthermore, according to the above-cited Lahore case of 1976, the principle of forfeiture of the tenancy upon the denial of the title of the landlord can be pressed into service in a rent proceeding under the Ordinance. In my view it is not necessary to hold whether the principle of forfeiture of tenancy can be pressed into service in rent proceedings under the Ordinance as the order under appeal in question can be maintained on the above other ground.
(b) In view of the discussion the above appeal does not merit, and hence, it is dismissed with no order as to costs. However, I grant 4 months time to the appellant to hand over the vacant possession of the premises to the respondent on the condition that he shall continue to deposit rent with the Rent Controller in terms of the Rent Controller's tentative order till the expiry of above 4 months. In case the appellant will commit any default, the respondent shall be entitled to file an execution application upon commis--sion of such default immediately without waiting for the expiry of the above period of 4 months. s. A. H.Appeal dismissed.