1. ' Pre-admission notice was issued to the respondents in pursuance of which the learned counsel for the respondents Nos. 1 to 3 has appeared and I have heard Advocates for both the parties.
2. ' The respondents Nos. 1 to 3 had filed an ejectment application in the year, 1965 on the ground that one Muhammad Bashir was the tenant of the premises who has defaulted in payment of rent and that he has sublet the premises without the knowledge and consent of the respondents Nos.1 to 3 to the appellant. Muhammad Bashir remained ex parte but the appellant filed his written statement in which it was alleged that he has been inducted as a tenant under a settlement with the landlord and claimed to be a tenant. It was also pleaded that the rent collector of the respondents 1 to 3 stopped collecting the rent from the appellant and that no willful default has been committed. On the basis of the pleading the learned Controller framed the following consent issues:
(1) Has the opponent No,1 committed default in payment of the monthly rent from 1-3-1964?
(2) Has the opponent No,1 sublet/transferred possession of the premises in suit to opponent No,2 with the consent of the applicant?
3. ' Mr. Nadeem the learned counsel for the appellant contended that without framing preliminary issue regarding status of the appellant the learned Controller has illegally decided the matter on merits. As the above issues were framed with the consent of the parties, it does not lie in the mouth of appellant to contend that the preliminary issues were not framed or any issue relating to the status of the appellant was not framed. In my opinion issue No,2 will cover the plea raised by the appellant. The learned Controller came to the conclusion that Muhammad Bashir has defaulted in payment of rent and that the appellant is a sub-tenant inducted by Muhammad Bashir without the consent of respondents Nos. 1 to 3. Mr. Nadeem has referred to 1980 CLC 1141 in which it was ,held that a preliminary issue should be framed to determine the relationship of the parties. In that case the relationship of landlord and tenant was denied by the parties whereas in the present case there is no such denial. The respondents Nos. 1 to 3 stated that the appellant is a sub-tenant without their permission but the appellant contended that he is a tenant. From the evidence it seems that although it has been pleaded that the appellant is a tenant under an agreement with the landlord, no documentary evidence of any nature has been produced. If there was any settlement between the parties and the appellant had paid money to the respondents Nos.1 to 3 then he should have obtained some document to prove it. Even the receipts that have been produced by the appellant in this Court which were not produced before the Controller, do not improve the case of the appellant as these receipts were issued in the name of Muhammad Bashir for the period January to September, 1983. These receipts can hardly support the case of the appellant that he was accepted as a tenant by the respondents Nos.1 to 3.
4. ' Mr. K.M. Nadeem then contended that as Muhammad Bashir is ex parte and has died his legal heirs have not brought on record no order could be passed. It is pertinent to note that in spite of several attempts made, neither the appellant nor the respondents Nos.1 to 3 were able to bring his legal heirs on record. This shows that they were not aware of the legal heirs of Muhammad Bashir and in such circumstances the only course open was to proceed with the matter in the presence of the parties present before the Controller. If at all the legal representatives of Muhammad Bashir exist or are interested in the tenancy they would be entitled under law to challenge the ejectment order. But this objection is not available to the appellant particularly so as the appellant pleads to be a tenant directly inducted by the landlords.
5. ' The next contention for the learned counsel for the appellant is that default has not been proved.
6. In this regard the learned counsel contended that the rent collector of the respondents Nos.1 to 3 had stopped collecting the rent and he has not been examined by the respondents. From non- examination of the rent collector he wants to draw an inference that the rent was allowed to accumulate by the landlords with a view to create default. Even if for argument sake, this contention is accepted, it cannot be concluded that no default has been committed. It is the duty of the tenant to pay the rent regularly according to the agreement. If the landlord is not collecting the rent it is the duty of the tenant to remit it by money order or by depositing the same in Court.
7. None of the legal modes of tendering the rent was adopted by the appellant. Therefore, even on his own showing he has defaulted in payment of rent. In any event as the appellant is a sub-tenant without the permission of the respondents Nos.1 to 3 and further as Muhammad Bashir has been held to have defaulted, the appeal is dismissed in limine. Four months time from today is granted to the appellant to vacate the disputed premises.