' This First Rent Appeal has been filed against the final order of ejectment dated 15-3-1980, impugned herein, passed by VIII Senior Civil Judge and HI Rent Controller, Karachi, in a rent case before him.
' Briefly stated the relevant facts are that the dispute is with regard to premises bearing No, L. Y./7- 33, situated on Atmaram Pritamdas Road, Moosa Lane, Lyari quarters, Karachi,. Original tenant in these premises was Abdul Latif, who died during the ejectment proceedings before the Rent Controller and was replaced by his. L. Rs, who are now appellants before me. Respondent Muhammad Amin claims to be the landlord of the premises in question and according to him these premises were purchased by one Suleman in open public auction held on 12-8-1960 by the Deputy Settlement Commissioner, Karachi, and the ownership rights in the said property were subsequently transferred to Abdul Aziz and Mst. Zohra Bai, successors of deceased purchaser vide P. T.
0. Dated 25-3-1961 P. T. D. 29-12-1964. Respondent Muhammad Amin then purchased the same property from Abdul Aziz and Mst. Zohra Bai by registered Sale Deed dated 27-11-1971 and consequently became the sole owner of the property in question. Subsequently city survey record was also mutated in his favour. Since Abdul Latif was sitting tenant in the premises in dispute, he was served with notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958: Abdul Latif (hereinafter to be referred as Tenant) ran Ice Factory in the premises at that time. Statutory notice dated 8-12-1971 was served upon the tenant informing him about the transfer and sale of the property with a demand for rent. Tenant made no response and defaulted in the payment of rent with the result that application for ejectment was filed against him on the grounds of default and additions and alterations to the premises without the permission of the landlord. Original tenant Abdul Latif filed written statement through his Attorney Muhammad Yaseen in which title of the landlord was called in question and relationship of landlord and tenant was denied for want of service of notice on the tenant. It appears from the record that thereafter Abdul Latif died and his L. Rs, were brought on the record. In view of the pleadings of the parties 3 preliminary issues were framed to determine whether there existed relationship of landlord and tenant between the parties and secondly whether notice under section 30 of D. P. Act has been served and thirdly whether notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, has been served. Learned Rent Controller vide his order dated 31-3-1979 found first two preliminary issues in the affirmative and gave finding with regard to the third issue in the negative. Subsequently on application from the landlord and after hearing both the parties the learned Rent Controller reviewed his previous order on preliminary issues and gave positive finding with regard to Issue No, 3 for the reason that notice under section 30 of D. P.
Act included the ingredients of notice under section 13-A of the said Ordinance, which were previously overlooked due to inadvertence as such he came to the conclusion that no evidence produced there was proper service of notice under section 13-A of the said Ordinance. Thereafter the case proceeded further and evidence was recorded which was produced by the parties.
Tenatative rent order was also passed. The landlord claimed rent at the rate of Rs, 398 p. m. From October, 1969. Tenant in reply asserted that the rent was Rs, 150 p. m. As per assessment made by the Excise and Taxation Department. Tentative rent was fixed at the rate of Rs, 398 p. m. And L. Rs, of the tenant were directed to deposit the amount of arrears to the tune of Rs, 46,964 before the 30th of October, 1979. They were further directed to deposit future monthly rent at the same rate from September, 1979, before 13th. Of each succeeding month. Issues were framed to the effect as to what is the rate of rent, whether there was wilful default in the payment of rent and whether any additions and alterations were made to the premises which have impaired the value and utility of the premises in question. In the evidence landlord Muhammad Amin examined himself and produced documents F. T.
0. Exh. 5-A, copy of registered Sale Deed Exh. 5-B, Copy of Notice under section 30 of D. P. Act Exh. 5- C, Copy of notice dated 21-2-1972 Exh. 5-D, Postal Receipt Exhs. 3/E and 3/F, Copy of Property Extract Exh. 5/G and copy of judgment of the High Court Exh. 5/H.
2. On the other hand tenant examined one witness namely Fazal Ahmad, who is son of original tenant deceased Abdul Latif. Fazal Ahmed filed affidavit in which he asserted that property in question- was Evacuee Trust Property and as such the same was not transferable and of which his father was original occupant and allottee. It was further averred that his father constructed the building out of his own funds end installed as Ice Factory. His-father used to pay-the rent to the Evacuee Trust Authorities. Service of notice was denied. It was further stated that landlord himself was doubtful about his title to the property in question, hence he filed a suit for declaration and injunction in the Court of Senior Civil Judge 1st Class, Karachi. In that suit proceedings were taken to the High Court on the civil revisional jurisdiction and orders were obtained restraining the landlord from taking any steps to evict Abdul Latif who was the original tenant. Finally the landlord withdrew that suit which was dismissed as withdrawn. It is further stated that at a later -stage Chairman, Evacuee Trust Property Board condoned the transfer of property in question from the Settlement pool and excluded the same from the evacuee property list. In this context, it was submitted that when the ejectment application was filed the landlord had no cause of action as the matter was still sub judice with the Chairman, Evacuee Trust Property Board. Fazal Ahmed also submitted documents in support of his contentions. He was cross-examined on behalf of the landlord before the learned Rent Controller. After assessment of the evidence produced by both the parties and hearing the learned counsel for them, the learned Rent Controller has passed the final order of ejectment against which the present appeal under consideration has been filed.
3. I have heard at great length both the learned counsel for the parties. Mr. Khalilur Rehman, Advocate for appellants before me contended that there was cloud on the title of landlord when application for ejectment was filed as such the said application was not competent and was premature. In support of that argument it was further stated that the landlord himself was not sure about his title and he filed a suit for declaration and injunction in the Court of Hnd Civil Judge, First Class, Karachi. Copy of plaint is on the record of the Lower Court. Perusal of the copy of plaint in suit registered bearing No, 1133/72 shows that there are 3 defendants in it including original tenant Abdul Latif as defendant No,
1. Defendant No, 5 is Settlement Commissioner, Karachi. Purport of the plaint appears to be that the plaintiff was apprehensive that defendants Nos. 1 to 4, named therein, who were tenants in the same property refused to accept the title on the plaintiff and further threatened to have his documents of title cancelled from the Settlement Department. In any case this suit was filed in the year 1972 and was dismissed as withdrawn on 20..7-1974. Copy of that order in on the record of the Lower Court. Present ejectment application had been filed on A 2-10-1972 since that suit has been withdrawn, it will have no adverse effect on the ejectment application.
Neither tenants can be allowed to allege that the mere filing of suit indicated doubt in the mind of the landlord with regard to his title to the property in question. Ejectment application had been contested forcefully by both the parties and has been decided on merits. Landlord has produced documentary evidence to prove his title, which was sufficient to impress the Rent Controller to hold that on the basis of those B documents the landlord was entitled.To receive the rent from the tenants. In these circumstances the contention that landlord himself was doubtful about his title to the property in question has no force.
4. The next contention raised on behalf of the tenants is that matter was sub judice before the Chairman, Evacuee Trust Property Board, who finally declared title of landlord vide his order dated 29-1-1975 as such the title would be affective from that date and in the circumstances application filed for ejectment earliar than that date was premature and incompetent. This argument again is devoid of force and logic. Landlord has purchased this property by registered sale-deed from the persons who had purchased the same earlier in open auction held by the Settlement Department.
Title of predecessor-in-interest was perfected by issuance of P. T. D. And final transfer C order.
Subsequently the landlord purchased the property from them by registered sale-deed and such mutation in the record of rights was also made. This evidence is more than enough for the purposes of tenants sitting in that property. If they are served with legal notices as are required under the law they cannot challenge the title of the landlord in any hostile or uncalled for manner.
Order of the Chairman, Evacuee Trust Property Board dated 29-1-1975 on the record of the Lower Court shows that an attempt was made by the tenants to file an application under section 4 (3) of Displaced Persons (Compensation and Rehabilitation) Act, 1958 for determination of the status of the property and in this context the learned Chairman-has remarked in his order that sitting tenants have no locus standi to file such application. Reliance was placed in the said order on the case of Chiraghuddin v. Abdul Hakim and others (1). In the said order Chairman has further held that P. T. D. Was issued prior to June, 1968 and Evacuee Trust Property Authorities have excluded this property from their list as such the transaction could not be called in question. In the circumstances petition filed by Sikandar Khan who was a sitting tenant in the same building was dismissed. In view of what is stated above, 1 am of the considered opinion that it is not open R to the tenants to raise a contention that the matter was sub judice before the concerned authorities and before the passing of final order, ejectment application was filed which was premature. On the other hand, it appears that sufficient evidence was produced before the learned Rent Controller by the landlord to convince him that the landlord has purchased the property in question and was entitled to receive rent from the sitting tenants.
5. Another point argued on hehalf of the tenants is that notices under section 30 of D. P. Act and under section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959 were not served. In this context, perusal of record shows that according to the ejectment application, notice under section 30 of D. P. Act was served and further that the appellant (original tenant who was then alive) was served with statutory notice dated 8-12-1971 informing him of the transfer and the sale of the property with a demand for rent from him. Subsequently an amended application for ejectment, which was filed after the death of the original tenant, in that also the same thing is repeated. In the written statement service of both the notices is denied. Landlord has produced before the learned Rent Controller copy of notice dated 8-12-1971 as Exh. 5/C and copy of notice dated 21-12-1972 as Exh. 5/D. He has also produced postal receipt and A. D. Receipt as Exhs. 5/E and 5/F. Exh. 5/C is copy of notice dated April 1971 sent by the Advocate of the landlord to tenant Abdul Lateef at. The address of Sialkot Ice Factory, Moosa Lane, Karachi, in which the fact is mentioned that the property in question has been purchased under a registered conveyance deed, copy of which was conclosed and further that by virtue of conveyance deed the new landlord was entitled to receive rent of the property as an absolute owner from the date of issue of P, T. D. This notice has been received by Haji Ghaffar for Sialkot Ice Factory on 8-12-1971. Landlord Muhammad Amin has deposed before the learned Rent Controller that he has served notice under section 30 of D. P. Act upon Abdul Lateef by hand and also through registered post A. D. In the cross-examination he has stated that notice Exh. 5/C was received by Haji Ghaffar, who was also tenant in respect of the same property. This witness was not further cross-examined on this point whether Haji Ghaffar worked in Sialkot Ice Factory and whether he was authorised by Abdul Lateef to receive the notice on his behalf. Omission of cross-examination on these lines shows that these facts were not challanged. No suggestive question was put to the landlord in the cross-examination that Haji Ghaffar had nothing to do with the Sialkot Ice Factory and was not authorised to receive the notice.
On the other hand Fazal Ahmad son of Abdul Lateef has filed a very long affidavit in evidence before the Rent Controller in which in para. 5 it is admitted that Abdul Lateef had installed an Ice factory in the premises in dispute under the name and style of "Sialkot Ice Factory". And was running this factory up to the time of his death which {{FOOT NOTE}} (1)PL,A 1974 Lab. 370 {{FOOT NOTE}} ' Took place in October, 1974. In this affidavit no mention is made about Haji Ghaffar and whether he could receive notice on behalf of Sialkot Ice Factory or not ? It would be pertinent to mention here that this affidavit was filed on 24-2-1980, much after full deposition of landlord was recorded by the Rent Controller including cross-examination on 11-10-1979. Even then acceptance of notice by Haji Ghaffar on behalf of Sialkot Ice Factory has not been adverted to. So far postal receipt Exhs.
5/E and 5/F are concerned they relate to the service of second notice dated 21-2-1972. Exh. 5/F is signed by Muhammad Yasin, who was son of Abdul Lateef and brother of witness Fazal Ahmed.
Muhammad Yasin died during the proceedings before the Rent Controller. Yasin had initially filed written statement before the Rent Controller on behalf of original tenant Abdul Lateef, while he was alive, as attorney of Abdul Lateef. This written statement was filed on 23-11-1972. The learned Rent Controller compared the signature of Muhammad Yasin on the written statement with the signature of Muhammad Yasin on A. D. Receipt Exh. 5/F and came to the conclusion that both the signatures are made by the same person. I have aslo done the same and agree with the learned Rent Controller. There is no denial of the fact from the tenants that written statement was not signed by Muhammad Yasin. In the circumstances no F fault could be found with the finding of the learned Rent Controller on this point.
6. There is still another aspect to this point of service of notice, which is to the effect that apart from this question whether notices were served or not, another fact is indisputable that the original tenant had known about this fact that the property in question was purchased by the landlord. As per the case of tenants, landlord was doubtful about his title and he filed a suit in the civil Court for declaration. In that suit Abdul Lateef was also a defendant and had contested the proceedings.
This fact is categorically admitted in the written statement filed on behalf of tenants. The suit was filed on 13-6-1972 whereas ejectment application was filed subsequently on 2nd October, 1972. , In the circumstances the tenants bad the knowledge about the suit and the claim of the landlord that he was the owner of property in question. This fact with regard to the filing of declaratory suit by the landlord 'is categorically mentioned in the written statement filed on behalf of (opponents 2 to 10) before the Rent Controller and further reiterated in great detail in the affidavit of Fazal Ahmed. On this point the Supreme Court of Pakistan has held in the case of Khudabukhsh v. Muhammad Yakoob (1) that if the knowledge of the transfer is admitted by the tenant, then if a notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 has not been served, it would not stand in the way of the Court in granting the relief. In the circumstances and for the reason aforementioned I have held that the tenants had the knowledge about the purchase of the property in question by the landlord and the notices were also served upon them.
7. An argument was raised by Mr. Khalilur Rehman that the learned Rent Controller was not competent to review his own order. It is further stated that initially the learned Rent Controller had given finding in negative with regard to preliminary Issue No, 3 which is to the effect whether notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinanre, 1959 was served or not Subsequently on application filed on behalf of the landlord, the learned Rent Controller after hearing both the parties reviewed his Order and gave positive finding with regard to the service of notice under section 13-A of the said Ordinance on the ground that notice {{FOOT NOTE}}
(1) 1981 SCM R 179 {{FOOT NOTE}} ' under section 30 of the D. P. Act Exh. 5-D already contained the ingredients of notice under section 13-A of the said Ordinance-as-the fact with regard to the purchase of property in question and demand of rent by the landlord were specifically mentioned herein. It was further held by the Rent Controller that since the finding on issue with regard to service of notice under section 30 of D. P.
Act positive, hence the finding on issue with regard to service of notice under section 13-A of the said Ordinance also had to be positive. In the circumstances this technical mistake was rectified by order dated 31-7-1979. In this context, Mr. Khalilur Rehman argued that the learned Rent Controller was not competent to review his own order. On the other hand Mr. Suleman Kasim, Advocate argued that the Rent Contoller .Was competent to review his order and placed reliance upon the decision in the case of N. Q. Industries v. Bapai Kaikhusre (1) in which it is held that the Rent Controller, is competent to recall, review, rescind, vary, cancel, alter or amend his order under the provisions of West Pakistan Urban read with section 20 of West Pakistan General Clauses Act, 1956.
Mr. Suleman Kassim; Advocate has further relied upon the decision in the case of Muhammad Hanif v. Muhammad Ramzan (2) wherein it is held that if there is a mistake on the part of the Court the party may not be allowed to suffer from such mistake. On these premises it is argued by learned counsel for the landlord that it was a simple case of mistake which was rectified by the learned Rent Controller after hearing both H the parties and the learned Rent Controller was quite competent to do so. Argument of Mr. Sulleman Kassim, Advocate has substantial force and I feel inclined to agree with him.
8. Mr. Sulleman Kassim, Advocate for the landlord has submitted that landlord had filed ejectment case against another tenant namely Sikandar Khan of the same building in question in which ejectment was granted and the said tenant filed appeal which was dismissed and he filed 'Ind Appeal in the High Court, which was also dimissed vide Judgment, which is reported as a case of Sikandar Khan v. Muhammad Amin (3). It is further stated that almost the same points which have been urged in this appeal before me on behalf or the tenants, were urged in that reported case but did not find favour with the learned single Judge who dismissed the appeal. I have gone through this elaborate judgment in the reported case. This judgment is very much helpful to the arguments of Mr. Suleman Kassim, Advocate. Even otherwise, I have discussed the arguments of both the learned counsel appearing before me in this appeal on their own merits.
9. The learned counsel for the landlord has submitted that he has filed cross objections on the limited ground that the learned Rent Controller should not have fixed the rate of rent at Rs, 150 p. m.
When the landlord had claimed the rent at the rate higher than Rs, 150 p. m. In fact quantum of rent was Issue No, I. Before the learned Rent Controller and he has given cogent reason for arriving at the conclusion that the rate of rent should be Rs, 150 p.m. On the assessment for the year 1963-68 which indicates assessm ent of the premises as Rs, 1800 per year. As against that the learned Rent Controller has not accepted assessment showing the gross annual rental property in the year 1972 which comes to Rs, 398 p.m. For the reason that the same was obtained after the ejectment case was filed. I do not feel inclined to disagree with the finding off the learned Rent Controller on this point. I would also like to point out that Muhammad Amin landlord in his evidence before the learned Rent Controller has stated in unequivocal terms ;hat he was prepared {{FOOT NOTE}}
(I) PLD 1968 Kar. 589 (2) PLD 1983 Kar. 126
(3) PLD 1979 Kar. 59 {{FOOT NOTE}} ' to forego the arrears of rent if the Court directed ejectment on preliminary issues. In view of such statement of the landlord there does not appear to be any justification for filing cross objections on the question of rate of rent. In any case apart from this fact mentioned above the learned Rent Controller on this point has given reasons which do not call for any interference.
10. For the facts and reasons stated above the appeal as well as cross objections are hereby dismissed with no order as to costs. Tenants are directed to hand over the vacant possession of the premises in dispute within three months from the date of this judgment.