' This appeal has arisen from the order, dated 28th February,1932 of Xth Senior Civil Judge and Rent Controller Karachi, whereby the ejectment application filed by the respondent against the appellant was allowed and the appellant was directed to vacate the disputed premises within three months of the said order.
2. Briefly stated the facts of the case are that the respondents are owner of the building in dispute i,e, Post Office Building situate at Plot No,654-6551/4-C Central Commercial Area Tariq Road, P.C.S.H.Karachi and the appellant is the tenant occupying flat No,I on the first floor of the said building on monthly rent of Rs,350. The respondent's case is that the appellant has defaulted in payment of rent and, therefore, is in arrears of rent from 1st July,1976 upto the filing of the ejectment application. The other grounds taken by them for ejectment of the appellant from the disputed premises are: that they need the premises for personal use and that the appellant has become nuisance to his neighbours as drinking and gambling gatherings take place in his flat which is also frequented by women of ill-repute.
3. The application has been resisted by the appellant who categorically repudiates, all the allegations made against him, pleading further that the respondents have nothing to do with the premises in dispute. According to him one Ghulam Ahmed is the owner and landlord of the said building. It is further stated by the appellant that as he was un willing to pay the rent at enhanced rate, the respondents refused to accept it. He has further stated that he sent the rent for the months of July and August by money order but the same was declined by the landlords. Thereafter he has been depositing the rent in the court vide Miscillaneous Application No,3186 of 1977.
4. In view of the pleadings of the parties four issues were framed by the learned Rent Controller. The respondents examined one of themselves namely Habibullah, beside Ikram Ali in support of their case whereas the appellant failed to produce his evidence and remained absent, even though the case was adjouned several times for the purpose of his evidence. The learned Rent Controller decided the issues relating to the default in payment of rent and personal requirement of the disputed premises, in favour of the respondents and that regarding nuisance was held as not proved and thus the ejectment application was allowed by the impugned order referred to above.
Dissatisfied with this order, the appellant has brought this appeal.
5. Mr.M.A.Kazi submitted his arguments in support of the appeal and Mr.S.Inayat All argued the case on behalf of the respondents.
6. The only point agitated by the learned counsel for the appellant was about the relationship of landlord and tenant between the parties. He contended that in spite of the specific plea taken by the appellant in this regard, the learned Rent Controller neither framed such issue nor recorded his finding on that controversy. The learned counsel, therefore, argued that the impugned order being without jurisdiction could not be legally sustained. To reinforce his view point, he has referred to para. 1 of the written statement which, according to him, clearly shows that the appellant has been specific in denying the relationship of landlord and tenant between the parties. In this connection he has also relied upon the Supreme Court authority reported as the Province of Punjab and others v. Mufti Abdul Ghani 1983 SCMR 65.
7. In order to appreciate the arguments of the learned counsel for the appellant, para. 1 of the written statement may be reproduced as under:-"That the filing of R.C.By above named applicant is nothing but a serious harrassme nt as the relationship of landlord and tenant do not exist between the applicants and opponent. Applicant No,1 is known to opponent to the extent that he used to collect the rent as his father's attorney. 'Applicants Nos.2 and 3 are even by name stranger to the opponent."
8. No doubt the appellant has stated in the opening paragraph of written statement that relationship of landlord and tenant does not exist between him and the respondents. However, in the same para. He has also stated that respondent No,1 Habibullah is not only known to him but it was this respondent who used to collect the rent as his father's attorney.
9. At this stage it will be appropriate to refer to the arguments of the learned counsel for the respondent. He has expressed the view that merely became appellant made simple statement inasmuch as that the relationship of landlord and tenant does not exist between the parties, the learned Rent Controller was not bound to frame issue or strike a point for determination on such statement. According to him the learned Rent Controller was required to apply his mind seriously to the pleadings of the parties, probing deeper into the text of the same with a view to ascertain the real points of controversy between them. He further submitted that the appellant by his own admission that the rent used to be collected by respondent Habibullah, attorney of his father, has clearly done away with the effect of his assertion that relationship of landlord and tenant does not exist between him and the respondents. The learned counsel argued that it has been admitted by the appellant that Ghulam Ahmed was the owner of the demised premises and respondent Habibullah who is admittedly his son used to collect the rent on behalf of his father. Thus, according to him, respondent was landlord within the definition of the terms as given in clause (f) of section 2 of the Ordinance. The definition of Ilandlord of course includes a person who is for the time being authorized or entitled to receive rent. Habibullah who was collecting rent as attorney of his father, Ghulam Ahmed, the owner of the premises in question was obviously landlord of the said premises.
10. As for other two respondents it is not denied that they too are sons and legal heirs of the owner Ghulam Muhammad. Since Ghulam Ahmed is dead, all the three respondents who are his legal heirs are entitled to collect rent in respect of the disputed premises and hence they are landlords within the meaning of section 2(f) of the Ordinance. In these circumstances it was not at all necessary to frame issue or record a formal finding on the question of relationship of the parties and as such the omission of the learned Rent Controller in this regard could not be held to have rendered the impugned order, being without jurisdiction. Therefore, I am inclined to hold the view that if the material contained in the written statement indicates the existence of relationship of landlord and tenant between the parties, bare denial of such relationship by the tenant in the same document would not make it obligatory for the learned Rent Controller to take a formal decision on the issue of relationship. As has been stated above, in the instant case the written statement is clear that all the three respondents are landlords in respect of the disputed premises or which their deceased father was owner. Accordingly I am convinced that it was not necessary to frame an issue or strike a point for determination on the relationship of the parties, as landlord and tenant.
11. In the case of Mufti Abdul Ghani relied upon by the learned counsel for the appellant the plea taken by the tenant was that there was no relationship of landlord and tenant between the parties and Mufti Abdul Ghani who had filed the ejectment application was neither owner nor transferee of the property in dispute and had even otherwise no locus standi to institute any action against the petitioner. It was, therefore, argued that before directing the depositing of rent the learned Rent Controller should have decided the objection with regard to the relationship of the parties, which went to the root of the case and the jurisdiction and competency of the learned Rent Controller in taking up or proceeding with the matter. While granting leave to appeal, the Supreme Court was pleased to observe: "It appears the objections aforesaid were raised before the learned Rent Controller but were not taken note of. The question whether in these circumstances any order for deposit of rent could not have been passed requires consideration."
12. It would appear that the facts of the above reported case are clearly different. In the instant case even on the appellant's own showing not only respondent Habibullah was authorised by his father who was owner of the property in dispute to collect rent and was hence landlord but also the other two respondents like respondent Habibullah being sons and heirs of the said owner were entitled in their own right to collect rent fell within the definition of the landlord. However, in the reported case Mufti Abdul Ghani who had filed ejectment proceedings had absolutely no locus standi as he was neither owner nor transferee of the disputed premises. Thus, the reported case cannot be invoked in support of the appellant's case.
13. In view of the above discussion I am inclined to hold that it is clear from the appellant's own pleadings in the written statement that relationship of landlord and tenant existed between the parties at the time of filing of the ejectment application, therefore the omission on the part of learned Rent Controller to frame issue or record finding on the question of the relationship would not affect the correctness of the impugned order.
14. After the controversy over the relationship of the parties raised by the appellant has been resolved and the finding has gone against him, it does not lie in the mouth of the appellant to take an inconsistent plea that he had not defaulted in payment of rent. Accordingly the appeal has no merit which is dismissed. However the parties would bear their own costs.