This appeal has been filed td challenge the judgment passed by the learned Additional District Judge, Karachi in Kent Appeal No. 147/72, whereby the case was remanded with the direction to frame additional issues mentioned therein.
2. The brief facts of the case are that the respondent claiming to be the owner/transferee of premises bearing No. B/52-A (equivalent to Gi52-1) on plot No. R. C. 598 known as Virjee Compound, situated near Jubilee Cinema, Ranchore Line Quarters, Karachi applied for ejectment of the appellants on the ground that they are defaulters in payment of rent since 7th April, 1961, and that in spite of notice served upon Abdul Qayum (predecessor of the appellants) under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (here--inafter referred as D.
P. Act of 1958), he refused/failed to pay the rent. The same was filed in the Court of the Rent Controller at Karachi on 9th April, 1964, against L. Rs. Of Abdul Qayum who in the meantime had died. The case was registered as R. C. No. 680/64. The appellants filed their written statement and contested the matter.
The following preliminary issue was framed in view of the pleadings of the parties :- "Whether the applicant is landlord and transferee of the premises bearing No. G. R. 52; A on plot No. R. C. 5/ 98."
3. (i) After hearing the parties the learned Rent Controller held that service of notice under section 30 of the D. P. Act of 1958 was not proved and that the documents on the record also did not show that the property in dispute was transferred to the respondent. Accordingly by order passed on 13th January, 1972, the application was dismissed as being without any merit.
(ii) Against the aforestated order of the learned Rent Controller, the respondent filed an appeal (R.
C. Appeal No. 147/1972) which was heard by IIIrd Additional District Judge. Karachi. The learned First Appellate Court by his order passed on 26th April, 1974, held that the transfer of the tenement in favour of the respondent was not in dis--pute in view of admission made in paras. 1, 2 and 3 of the written statement and that preliminary issue did not arise. On merit as well, the learned Appellate Court found that the respondent is the transferee of the tenement in question. It was further held that service of the notice under section 30 of D. P. Act of 1958 on Abdul Qayum the-- predecessor of the appellants was duly proved and that after the death of Abdul Qayum it was not necessary to issue any further notice to his legal representatives (the appellants). The learned Appellate Court accordingly held that relationship of landlord and tenant between the parties existed. Having reached the above conclusions the case was ordered to be remanded to the learned Rent Controller for proceeding with the case in accordance with the law, with the further direction that the parties shall file municipal assessment of the premises which was enforced on 7th April, 1961 which is the date of the P. T. O. Issued in favour of the respondent would be entitled to claim rent at the said rate. It was further directed that the learned Rent Controller shall pass order under section 13 (6) of the Ordinance of 1959 directing the appellants to deposit the arrears of rent in Court after taking into account the rent already deposited in Court. It was also ordered that in case the said order was not complied with "the learned Rent Controller shall obviously strike of the defence" of the appellants but in case the order was complied with, the learned Rent Controller shall frame the following issues "(i) At what rate the appellant/ landlord is entitled to receive rent from 7th April, 1961 and what is the total amount of rent due ?
(2) Whether, under the circumstances of the case, the respondents or their predecessor in interest have violated tire terms and conditions of the statutory tenancy under section 30 of D. P.
(Compensation and Rehabilitation) Act, 1958 ?
(3) Relief."
4. Against the above order, the present appellants have filed this appeal and have challenged the findings reached by the learned First Appellate Court.
5. The main contention of the learned counsel for the appellants was that according to the P. T. O.
Issued on 7th April, 1961 as well as P. T. D. Dated 22nd September, 197 the respondent was transferee of premises bearing No. 6151 to G/56 and that he was not the transferee of the tenement No. G/52/1 (equivalent to G-52/A) which according to the learned counsel was not shown to have been transferred in the P. T. O. Or P. T D issued to the respondent The learned counsel placed reliance upon the order passed on 7th December, 1968 wherein the learned Settlement Commissioner in case No. S. C. K-77/68 filed by Muhammad Ibrahim (Appellant No. 1), while rejecting the application for transfer of the tenement in question to the appellants observed that the present respondent by his `original application dated 19th January, 1961 had applied for transfer of 6 tenements No. 51 to 56 which were ordered to be transferred to him by the Additional Settlement Commissioner on 25th January. 1961 and that subsequently by another application dated 6th March, 1961 the respondent wanted to add one more tenement No. 52-J but no formal order seemed to have been passed. The learned Settlement Commissioner in the aforestated order observed as follows :- "No formal order seems to have been passed on this application. But he has been issued P. T. O.
And P. T. D., on the basis of this alleged subsequent application which was got approved on 5th February, 1964. In this plan the area shown to have been transferred to the respondent is much in excess of his transfers. This plan needs correction, I therefore direct that the transfer documents and the plan approved by Mr. Sharif, Deputy Settlement Commissioner on 5th February, 1964 be cancelled and the same be issued to him after proper necessary correction. That the Deputy Settlement Commissioner concerned will hear the respon--dent before these corrections are made by him. This revision petition is decided as above."
The learned Advocate for the appellants further contended that the tenement No. G. 52/1 (which is also described, as. No. G. 52/A) after order of the learned Settlement Commissioner referred to above passed or; 7th December, 1968 (Exh. P/9), could not be treated to have been transfer--red to the respondent.
"I have perused the record. It is an admitted fact that these two bifurcated tenements stands transferred to Mr. Tasleemul Hassan and was given No. G./52. I further opine here that in a normal sense, if entire tenement number is mentioned, it includes its sub numbers, if not specifically described are treated as one- Office has further reported that entire transfer price has correctly been charged from him and he has also paid the transfer price of the tenement G-52/1. The other directions contained in the order of Settlement Commis--sioner dated 7tb December, 1968 regarding correction of plan which was verified and approved by the then Deputy Settlement Commissioner, for which the transferee has been directed to get the plan prepared by a licensed architect, for tenements G-5.1 to G-56 and show me the site approval.
The learned counsel further submitted that after the passing of the above order dated 25th November, 1969 (Exh. P/9) by the learned Deputy Settlement Commissioner, the matter again was taken up by the Deputy Settlement Commissioner, Karachi for correction in transfer documents, and he by his order dated 9th May; 1974 held as follows :- "Order of the Deputy Settlement Commissioner dated 25th November, 1969 on this issue is very clear, there appears to be no need to mention sub-number G/52-1 in the P. T. D. However if he insists the needful be done. Inform accordingly."
The learned counsel for the respondent has produced the certified copy of the order dated 9th May, 1974 and the photocopy of the original P. T, D. Wherein G/52/1 has also been shown to lave been transferred to the respondent. The original P. T. D. Has been returned and its photocopy has been kept on the record. Copies of these documents were supplied to the other side counsel on the last date of hearing. The learned counsel for the appellants faced with these documents submitted that the appellants were not heard before the order dated 7th December, 1974 pursuant to which the correction has been made in the P. T. D., was passed. It would however be sufficient to state that the appellants having already been eliminated and having been found not to be entitled to the transfer of the property in dispute, vide order passed on 7th December, 1968 Exh. 7 were not required to be heard. It may also be noted here that the appellants had filed C. P. No. 170 of 1969 against the order dated 7th December, 1968 which was dismissed by a learned Single Judge of the then High Court of West Pakistan (Karachi Bench).
It is pertinent to mention here that the learned Single Judge in the order passed on 27th March, 1969 while dismissing the above-mentioned petition in the concluding para. Observed :- It would be seen from the above order as well as the order of the learned High Court in Petition No. 170/69 as well as the public documents placed on record by the learned counsel for the respondent, that the tenement No. G-52/ 1 (equivalent to G-52/A) was already in favour of the respondent and that the clarification made on 9th May, 1974 was not an addition of any new tenement to the property already transferred vide P. T: O. Dated 7th April, 1961 in favour of the respondent. The clarification became necessary which' was done pursuant to the orders of the learned Settlement Commissioner passed on 7th December, 1968 (Exh. P/9).
6. In view of the above findings it is not open to the learned counsel for the appellants to contend that the transfer in favour of the respondent at the most can be deemed to have taken effect on 9th May, 1974, when the number of tenements in dispute, was shown in the P. T. D. Contention also fails as we find that as far back as in 1969 vide order dated 25th May, 1969 (Exh. 7) it was expressly held by the Deputy Settlement Commissioner that the tenement No. G-52/1 stood transferred to the respondent. The learned counsel for the appellants could not advance any further argument except raising the contention that the case which was filed in 1964 seeking ejectment of the appellants from tenement No. G. 5211 was not then maintainable. This plea has no force for the reasons already stated above. In any case having found that the appellants have been eliminated and are not entitled to the transfer of the tenement in question by order passed on 7th December, 1968 by the Settlement Commissioner which order was also maintained in W. P. No. 170 of 1969 by the High Court and that the respondent is the rightful transferee of the property, it would be sheer waste of time and prolonging: the agony by throwing out the case of the respondent pending since 1964 and asking him (in 1982 after about 17 Nears of litigation) to start the proceedings afresh.
Having found that the respondent is the rightful transferee of the tenement in dispute the question which now requires consideration is whether it is a fit case which should be remanded to the learned Rent Controller. An offer was made by the learned counsel for the respon--dent, to the appellants to pay the rent to the respondent but the latter refused to accept the offer contending that the respondent is not the rightful transferee of the property in dispute.
I am fortified in taking the above view, by the judgment given in the Second Appeal No. 326 of 1972 on 19th April, 1976, wherein a learned Single Judge of this Court, having found that the tenant/appellant was disputing the title of the landlord and was refusing to pay rent held :- "Mr. S. M. Gharib Nawaz, the learned counsel for the respondent, however, contended that no purpose will be served by any further inquiry by the Rent Controller as regards the default in payment of rent in view of the denial by the appellant of the relationship of landlord and tenant between the parties and this. Court should, therefore, proceed to make an order of eviction in terms prayed for. The learned counsel relied on a decision reported in PLD 1974 Lah. 489 in which it has been held that a person who does not acknowledge relationship of landlord and tenant between the parties has no right to plead after finding in this regard against him .For any further enquiry under section 13. 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 and that the passing of any order under subsection (6) of section 13 will be an exercise in futility resulting only in prolonging the agony of unnecessary litigation. I am in respectful agreement with this view and accordingly the respondent's prayer for eviction of the appellant on the ground of non-payment of rent is granted."
Petition for special leave to appeal preferred against the above order was dismissed by the Honourable Supreme Court (1978 SCMR 14), with the following observations :- "for the case as it stands, it is an admitted position that the petitioner has defaulted in payment of rent as he did not accept 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."
The above are the reasons for passing the said order.