' This writ petition calls in question the validity of order, dated 7th June, 1982 passed by the learned Rent Controller, Kasur, ordering the ejectment of tenants after giving an affirmative finding on issue No, 3, relating to existence of relationship of landlord and tenant, and order, dated 13th January, 1984 of the learned Additional District Judge, Kasur, whereby the ejectment order passed, was maintained.
2. The facts giving rise to the present writ petition may be briefly stated as follows :- ' Mst. Balqees Begum and Mst. Shamim Akhtar, respondents Nos. 1 and 2, instituted ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, as amended in the Court of learned Rent Controller, seeking eviction of Muhammad Anwar and others from the property in dispute. It was stated in the ejectment petition that the property, in dispute, was evacuee in character and was transferred by the Settlement Department in the name of one, Muhammad Akram on 16th January, 1962. Muhammad Akram sold the said property to Mst.
Balqees Begum and Mst. Shamim Akhtar through Registered Sale-Deed, dated 12th October, 1974.
The arrears of rent allegedly due to Muhammad Akram were also transferred/assigned to the new owners through the said sale-deed, dated 12th October, 1974. It was stated in the ejectment petition that after purchase of property, notice, dated 18th February, 1975 was served upon Hafiz Bakhsh claiming rent since 16th January, 1962 at the rate of Rs, 54 p. m. Neither Hafiz Bakhsh, the predecessor-in-interest of the tenant paid any rent nor his successors. Proceeding thus on grounds of default in payment of rent and personal need, the eviction petition, as stated above, was filed.
3. Muhammad Anwar and others, successors-in-interest of Hafiz Bakhsh, resisted the application by filing a written statement in the Court of the Rent Controller. Apart from raising certain preliminary objections, averments made on facts were also denied.
4. The learned Rent Controller framed the following issues :-
(I) Whether the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was duly served upon Hafiz Bux, deceased, by the petitioners ? 0. P. A.
(2) Whether the notice under section 13(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was necessary to be served upon the legal heirs of Hafiz Bux, deceased, by the petitioners ? 0.
P. R.
(3) Whether the relationship of landlord and tenant exists between the parties ? 0. P. A.
(4) What should be the order ?
5. Later on, another preliminary issue stated below was added by the Rent Controller on the application made by the tenants :- 3-A. Whether the petition is not maintainable in view of the preliminary objection No, 5 ? 0. P. R.
6. Parties produced their evidence. The Rent Controller found issue No, 1 in favour of the landlady holding that notice under section 30 of the above-stated Act was served. As regards issue No, 2, it was found that since the notice had been issued and served upon Hafiz Bakhsh, deceased, the predecessor of the tenants, it was not legally necessary to repeat it by serving another notice to the successors of Hafiz Bakhsh. Finding issues Nos. 3-and 3-A against the tenants, the learned Rent Controller, vide his order, dated 7th June, 1982 proceeded to pass ejectment order straightaway without holding any further inquiry into the factual allegations made in the ejectment petition.
7. Aggrieved by the said order, tenants preferred an appeal under section 15 of the Rent Restriction Ordinance, 1959, in the Court of learned District Judge, Kasur, which came up to be disposed of by the learned Additional District Judge. Vide order, dated 31st January, 1984 learned Additional District Judge, after affirming the finding of the Rent Controller dismissed the appeal. The present writ petition as stated above is directed against both the orders with a prayer to declare these to have been passed illegally and without lawful authority.
8. I have heard learned counsel for the parties and perused the record with their assistance. Mr. Muhammad Aslam Nagi, Advocate, learned counsel for the petitioners, has contended that the learned Rent Controller could not have passed ejectment order without holding further inquiry into the alleged default and personal need. Straightaway passing of ejectment order, after finding issue of relationship of landlord and tenant in affirmative is not legally sustainable. It has been contended by him that in the written statement filed by Muhammad Anwar and others, they had not denied the title of the landlady contumaciously. It was specifically stated in reply that since the property had been purchased by Mst. Balqees Begum etc. Through Registered Sale-Deed, dated 10th December, 1974 and the respondents (tenants) as legal heirs of Hafiz Bakhsh, deceased, being in possession since before the month of December, 1958, were entitled to a statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and in the absence of such a notice, the relationship, as alleged, did not come to have been governed by general law of the land. As regards the demand for rent since the year 1962 relating to a period prior to the purchase by Mst. Balqees Begum etc., claim was also asserted to be barred by time. It was specifically stated in para. 4 of the written statement that the respondents were not defaulters as the rent was being deposited. In view of these allegations contained in the written statement, the learned counsel contended that the denial of relationship was deeply linked with the absence of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
Learned counsel, therefore, has emphasized that the Rent Controller, after having found the service of notice and the relationship of landlord and tenant in affirmative was bound to frame issues relating to the question of default and personal requirement and thereafter to decide the matter after recording of evidence in accordance with law. Summary disposal of ejectment petition in the fashion and manner adopted was thus not legally justifiable. As the rent was stated to be in deposit, the default having not been established, the ejectment was not called for.
9. As regards the demand of arrears of rent since the year 1962, right to receive which was assigned to the new owners through the Registered Deed of Sale, it was submitted that the assignment of arrears of rent would not clothe the new owners with any ground to seek eviction of the tenants on the said basis. At the most, in case of proof of assignment, it will give the new owners right to recover the amount through a Court of law by filing a properly constituted suit.
Besides, a claim for arrears of rent was barred by time and could not have been got recovered through the present ejectment petition or made the basis of the eviction. Anyhow, this matter too required adjudication by Rent Controller after framing of the issues on merits and recording of evidence.
10. The ejectment petition was filed on 7th January, 1977 whereas the property, in dispute, was purchased on 7th January, 1974. Not only that it was stated in the written reply that the rent was being deposited, the same fact was also asserted by Muhammad Anwar in his deposition on oath stating that the rent was being deposited in Court regularly. As the denial was linked with the absence of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958, and the rent was in deposit, the learned counsel contended with vehemence that his clients were entitled to further proceedings under section 13 of the Rent Restriction Ordinance, 1959.
According to him, the Rent Controller, without attending to the propriety or otherwise of proceeding further, illegally, has passed the ejectment order. The same error has been committed by the learned first appellate Court. In support of this legal stand, the learned counsel for the petitioners has placed reliance on the cases of Abdul Khaliq Qureshi v. Saeed Hassan Shah and 5 others (1) and Muhammad Iqbal v. Attaullah Nisar and others (2).
11. Learned counsel for the respondents has submitted that the denial of the tenants is contumacious besides being frivolous, which is self-evident from their reply, dated 10th March, 1975 Exh. A-5. He has further submitted that denial being wilful, Muhammad Anwar etc. We're not entitled to be heard further and the mere fact that the rent had been deposited, would not make it necessary for the Rent Controller to proceed further to examine the question of default and personal need as expressed by the landlady in the eviction petition.
12. Learned counsel for the respondents submitted that even though the rent for the period from the purchase of the property by the landlady may have been deposited, yet no rent for the period preceding the purchase has been paid or deposited, therefore, too the tenants were liable to eviction. Right to receive arrears of rent due to Muhammad Akram Khan had been duly assigned in favour of the present landlady and as such she was entitled to make claim for the arrears of rent which not having been paid admittedly, ejectment order was justified. In support of the proposition that arrears of rent assigned can be made a basis for eviction of the tenants, the learned counsel has placed reliance on the case of Syed Muhammad Ali and another v. Jamil Ahmad (3).
13. The question relating to propriety or otherwise of taking further proceedings under section 13 of Ordinance VI of 1959 in case of denial of title of the landlord, after the same is found in affirmative, has been examined in some of the following cases :-
(1) Muhammad Ismail v. Israr Ahmad PLD 1961 Lah.
601.
(2) Mehdi Hassan v. Ghulam Muhammad etc. PLD 1964 Lah.
648.
(3) Syed Muhammad Akram Shah v. Ch. Ghulam Nabi PLD 1967 Lah.
957.
(4) Ghulam Rasool v. Ch. Din Muhammad PLD 1967 Lah.
665.
(5) Muhammad Hussain v. Muhammad Bashir and 4 others PLD 1974 Lah.
446.
(6) Nisar Ahmad v. Nazar Muhammad PLD 1974 Lah.
489.
(7) Muhammad Siddique v. Naseer Ahmad PLD 1976 Lah.
1078.
(8) Noor-ud-Din and another v. Muhammad Qasim and 6 others PLD 1976 Kar.
921.
(9) Sikandar Khan v. Muhammad Amin PLD 1979 Kar.
59.
(10) Abdul Khaliq Qureshi v. Saeed Hassan Shah and 5 others 1979 CLC 118.
(11) Amroz Khan v. Arbab Muhammad Ghalib PLD 1980 Pesh.
163.
(1) 1979 CLC 118 (2) 1984 CLC 454
(3) PLD 1976 Kar. 820
(12) Feroz khan (through L. Rs,) v. Mst. Meraj Begum etc. PLD 1982 Lah.
332.
(13) Muhammad Iqbal v. Atta Ullah Nisar and others 1984 CLC 454.
(14) Ishrat Hussain and another v. Subedar alias Suba 1975 SCM R 19.
(15) Aman Ullah Khan (A. Khan) v. Chotey Khan 1978 SCMR 14.
(16) Muhammad Yusuf v. Khalifa Asghar Hussain 1980 SC MR 886.
14. The ratio descendi deducible from the resume of case law reproduced above is that in case the tenant denies the title of his landlord contumaciously, after finding that the relationship exists, no useful purpose will be served in proceeding further under section 13 of the Ordinance by framing issues and recording evidence which in the ultimate analysis will be an exercise in futility, for the tenant by his own conduct has disentitled him to lead evidence on question of payment of rent. In such circumstances, the tenant is not entitled to approbate and reprobate in the same breath.
Denial of the title of the landlord in the very nature of things implies nonpayment of rent. Therefore, where such is the case, the Rent Controller after giving the affirmative finding on issue of relationship, may straightaway proceed to pass an ejectment order as the default which is a recognized ground for eviction of tenant stands proved and further the tenant may have disentitled himself to the exercise of discretion in his favour by frivolously denying the title of his landlord. Asking for further trial on an issue of default, will, therefore, be a sheer wastage of public time and expense which should be the endeavour of all to save. In the ultimate analysis, this sort of technique may suit a tenant to prolong the matter but obviously it is not in the interests of dispensation of justice. When the plea of denial is neither wilfull nor contumacious and deposit of rent due is pleaded, in defence with unimpeachable evidence in support of such deposit tender of rent, the Controller may not be acting in proper exercise of its jurisdiction in proceeding to order forthwith eviction after the decision o relationship of landlord and tenant is found in affirmative, for in such a case the tenant has a defence to make. In this view of the matter, the learned Rent Controller is bound under the law to strike issues, record evidence and then give a decision on question of default, of course, subject to the scope of inquiry envisaged by the Rent Laws. Section 13 of the Ordinance so far as relevant for the present purposes, is reproduced below : 13(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with provisions of the section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that :-
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement within sixty days from the period for which the rent is payable ; or A plain reading of this section shows that ejectment of a tenant can only b ordered if the conditions specified therein are fulfilled and not otherwise. Therefore, a landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf and if the Controller is satisfied after affording reasonable opportunity to the other side that rent has neither been paid nor tendered within time, and then alone eviction can follow, subject to exercise of discretion dependent upon the facts and circumstances of each case. If a person does not deny the 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 payment of rent after finding relating to the issue of relationship of landlord and tenant goes against him. The denial of title without pleading payment is sufficient to order ejectment.
15. It has been observed in the case of Abdul Khaliq Qureshi v. Saeed Hassan Shah and 5 others that if there is unimpeachable documentary, evidence of payment or tender of rent as distinguished from mere oral evidence, the case for further inquiry under section 13 is made out, for in" such a case the principle of approbate and reprobate may not apply. 1 may like to quote an extract from the said precedent for reference :- "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 of 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."
Similarly, in the case of Muhammad Iqbal v. Atta Ullah Nisar and others it has been observed by my esteemed brother Saad Saood Jan, J. That in case the relationship is denied on account of non- service of notice under section 30 of the Displaced. Persons (Compensation and Rehabilitation)
Act, 1958, straightaway eviction order is not called for. The learned Single Judge proceeded to observe "all that they have stated was that the relationship of landlord and tenant did not exist between the parties because the respondent had not served any notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, upon them. This plea cannot be equated with plea of denial of the title of the landlord Apart from that it is a moot-point whether the learned Rent Controller can base an order of eviction on the ground other than those specified in section 13 of the Punjab Rent Restriction Ordinance. It is also doubtful whether the learned Rent Controller could himself direct the eviction of the appellant on the ground of denial of the landlord's title for it was laid down in case of Maharaja of Jaypore v. Sir Rukmini Pattamandevi (1) that denial of the landlord's title in a suit does not work forfeiture of which advantage can be taken in that suit because the forfeiture ought to hay accrued before suit was instituted".
16. The petitioners had specifically stated in the written statement that rent was being deposited and the same stand was repeated in Court by
(1) AIR 1919 P C 1 ' Muhammad Anwar on oath stating that the rent was being deposited regularly. This fact was not seriously controverted in cross-examination obviously giving an inference that the fact of deposit was being admitted. After the ejectment was ordered, the tenants preferred an appeal in the appellate forum taking up a specific stand in the grounds of appeal that the rent was being deposited and as such they were not defaulters. It became the duty of the learned appellate Court to give positive conscious consideration to this aspect of the case. Treasury challans showing the deposit of monthly rent from December, 1974 to November, 1983 at the rate of Rs, 54 p. m. In the name of Mst. Balqees Begum and Mst. Shamim Akhtar have been appended with the petition.
Deposit has not been seriously controverted by the learned counsel appearing for the landlady. In this view of the matter, the learned Rent Controller was not acting in his proper exercise of jurisdiction to pass an order against the present petitioner after giving a finding on issue No,
3. He was duty bound to proceed further in accordance with the provisions of section 13 of the Ordinance to find the default in payment of rent. The appellate forum also has committed the same error of law in not noticing the plea of deposit of rent while upholding the order of eviction passed against the tenant.
17. It was observed in Syed Muhammad Ali and another v. Jamil Ahmad (1) that a landlord who has been assigned to receive arrears of rent with the transfer of property in his favour can take advantage of the earlier default and seek eviction of the tenant on the said basis. For facility of reference a passage from the said judgment is quoted below :- "In this connection suffice it to say that default is not personal but it is in respect of the property and when the property is conveyed by way of sale the rights vesting in the transferor can also be conveyed to the transferee and for the assertion of such rights the only forum available under the law is Rent Controller's Court, who alone deals with the ejectment cases. The question of preferring a regular civil suit therefore does not arise at all. For this argument I receive strength from Muhammad Nawaz v. Muhammad Azim where it was held that the default was not personal for it was committed in respect of the property and the successor-in-interest of the landlord succeeds to the default also. The relevant observation is as under :- ' The default was not personal for it was committed in respect of the property, and since the children succeeded to the tenancy, they succeeded to the default also' ".
' However, it was observed by a Division Bench of Calcutta High Court in Sm. Daya Debi v. Chapala Debi (2) that a claim for arrears of rent loses character of rent as soon as it is assigned and the cause of action for recovery of arrears of rent is completely satisfied as soon as the assingor receives consideration for which he sells the arrears of rent and what assignee purchased is not the cause of action for recovery of arrears of rent but the right of assignor to recover those arrears.
To illustrate the point further, extract from the said report is quoted below :- "I cannot agree that this is the legal consequence of the assignment of arrears of rent. In my opinion, the cause of action for recovery of arrears of rent is. Completely satisfied as soon as the assignor receives the consideration for which he sells the arrears of rent and what the
(1) PLD 1976 Kar. 820 (2) AIR 1960 Cal. 378 ' assignee purchases is not the cause of action for recovery of arrears of rent, but the right of the assignor to recover those arrears. The right of the assignor to recover arrears of rent is a property and as such it is transferable under the main provisions of section 6 of the Transfer of Property Act and it is not hit by any of the clauses which appear in that section. Such a right can be transferred either in favour of the person who has acquired title to the house itself or in favour of a stranger. It is quite possible that the house is sold to "X" and the claim for the recovery of arrears is sold to "Y". For these reasons I have reached the conclusion that the claim for arrears of rent ceases to be a claim for rent and is converted into an actionable wrong as defined by section 3 of the Transfer of Property Act and is assignable in the manner contemplated by section 130 of the Act".
"8. The second point of view from which the question can be looked at is that the assignment of arrears of rent may be in favour of a person, who has no interest in the premises from which ejectment is asked for. Section 17(1) requires that the arrears should be either deposited in Court or paid to the landlord. If the arrears have been assigned to a stranger, who has not interest in the premises, obviously, section 17(1) can have no possible application. In the present case it is merely an accidental circumstance that the arrears of rent have been assigned to the same person who has acquired title to the house itself. The character of the tenant's duty or the character of the tenant's obligation under subsection (1) of section 17 has to be determined by a consideration of all possible cases and if the tenant is not under an obligation to make the deposit in case of an assignment of arrears of rent to a stranger, he cannot also be said to be under any obligation to make the deposit when the arrears are assigned to a person who has acquired title to the property.
For this reason also I hold that in the present case the petitioner was not required to make the deposit of the arrears of rent which were assigned to the plaintiff, under the deed of assignment."
' A contrary view, however, was taken in Ram Parkash Ghani v. Karam Chand and another (1) wherein it was observed by a Learned Judge of Allahabad High Court that the transferee of a house who has purchased the arrears of rent also can make a demand and the amount of liability will not lose its character as arrears of Rent. However no reference was made to the case of Sm.
Daya Debi in the judgment.
18. The claim for arrears of rent said to have been assigned through the Registered Sale-Deed represents the amount from the year 1962 to the date of purchase. Obviously, the rent beyond the period of three years preceding the institution of ejectment petition cannot be claimed. The point as to whether the arrears of rent assigned can be made the basis for seeking eviction of the tenant in the facts and circumstances of this case, G required detailed examination in view of its complicated nature as discussed above. This all the more made it necessary for the rent matter that the dispute as to default in payment of rent should have been thrashed out thoroughly after proceeding further under section 13 of the Rent Restriction Ordinance.
(I) AIR 1963 All. 47
19. The facts and circumstances, highlighted above, and gleaned from the record clearly showed a necessity for proceeding further after the decision recorded on preliminary issue. A little more attention by the learned Rent Controller and the learned Additional District Judge in appeal could have easily solved the matter. I am of the considered view that the Rent Controller in such like cases of denial of title should by himself enquire as to the payment/tender of due rent from the tenant to save objections later on that this or that must have been done by the Courts. The tenant in this case too is partly responsible for not placing the Treasury Challans on file of the Rent Controller which could have helped in arriving at the correct conclusion. Presumably, the tenants was playing the game of hide and seek which, I am afraid, may not be described as fair. It is the duty of the parties and their learned counsel to place their entire case before the primary Court so that the same is examined completely and thoroughly to avoid the criticism later on.
20. In view of the foregoing discussion, therefore, this petition is accepted, order, dated 7th June, 1982 passed by the learned Rent Controller and order, dated 13th January, 1984 passed in affirmation by the learned Additional District Judge, Kasur, are declared to have been passed without! Lawful authority and of no legal consequence. Both the Courts below have proceeded to pass order of ejectment not only in violation of the positive provisions of the Rent Restriction Ordinance, 1959 but also contrary to the! Pronouncement of the superior Courts in this behalf. As a corollary of the above discussion, the case is remanded to the learned Rent Controller with a direction to proceed to frame issues and after giving reasonable opportunity of hearing to the parties, decide in accordance with law. In view of the conduct of the tenant in not placing the Treasury Challans before the lower Courts, no order as to costs is being made.