1. ZAFFAR HUSSAIN MIRZA, J.-- This is a petition for leave to appeal calling in question the judgment of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 17-6-1984 whereby the writ petition filed by the petitioners herein was dismissed in limine.
2. The facts of the case as appear from the impugned judgment are that the property in dispute measuring 5 Kanals 21 Marlas upon which 52 rooms have been built was purchased by means of separate sale-deeds in favour of each of the respondents, transferring an undivided fractional share in the same as per sale-deeds executed on to dates, namely, 31-3-1980 and 1-4-1980, by one Sardar Faqir Muhammad. After acquiring the property the respondents served notices on the petitioners, who are in occupation of various portions of the property as tenants informing them that they (the respondents) had been transferred the ownership thereof. As no response was made by the petitioners and no rent was tendered by them to the respondents, the latter brought an eviction application against the petitioners on the dual ground of non-payment of rent and requirement of the premises for reconstruction.
3. The petitioners, while resisting the eviction application, denied the relationship of landlord and tenant between the parties and pleaded that Sardar Faqir Muhammad, the transferor from whom the respondents had acquired title to the property was not the owner of the same but admitted that they used to pay rent to him in his capacity as a Thekidar from the Azad Kashmir Government who were the real owners of the property. One of the main preliminary objections based on a question of law raised by the petitioners was that one single and composite application for eviction against them was bad in law on the ground of miss-joinder of parties and causes of action, for the reason that each individual respondent had purchased separate portions of the property, as well as each respondent is in separate possession of a portion of the property as a tenant.
4. The learned Rent Controller by his order, dated 6-10-1983 rejected the preliminary objection regarding the maintainability of the eviction application and also decided the preliminary issue against the petitioners, holding that as a result of the transfer of title in the property by Faqir Muhammad to the respondents, the petitioners became the tenants of the latter. Having arrived at these findings the learned Rent Controller did not feel the necessity to proceed further to determine the question of non-payment of rent by the petitioners, as on the admitted position in spite of notices served by the respondents the petitioners had failed to tender rent to the new owners.
5. Accordingly by the said order he directed the eviction of the petitioners on the ground of default in the payment of rent.
6. After unsuccessfully challenging the order of eviction in appeal before the Additional District Judge-II, Rawalpindi, the petitioners filed the writ petition before the High Court, which was dismissed in limine as already stated. As regards preliminary objection that the single application for eviction was not maintainable, the learned High Court observed:- "It is obvious that the property had not been partitioned and each landlord purchased an undivided share therein. It being so only a joint ejectment petition by all the landlords was competent."
7. Further the High Court observed:- "As regards the joining of all the tenants in one ejectment petition, the ground of ejectment is common to all the cases and it is not shown that what prejudice has been caused to the petitioners in defending themselves. So far as the execution of the ejectment order is concerned that stage has yet to arrive."
8. It was urged before the High Court on behalf of the petitioners that Sardar Faqir Muhammad was not competent to dispose of the property by sale in favour of the respondents as the petitioners had obtained a decree for permanent injunction against him in a suit filed in the civil Court.
9. Repelling this contention the High Court referred to the fact that this decree was obtained ex parte on 29-1-1981 and as we were informed, this decree was set aside in an appeal filed by the respondents on 2-1-1983 by the learned Additional District Judge, Rawalpindi against which a revision application submitted by the petitioners is pending in the High Court. It was held by the High Court that the pendency of this revision petition, in absence of a specific propitiatory order to that effect did not operate as a legal hurdle for the respondents to file ejectment proceedings.
10. In support of the present petition learned counsel for the petitioners first strongly reiterated the contention that the application for ejectment impleading all the petitioners in the same proceedings was incompetent in law for the reason that, each of the petitioners being in separate and independent occupation of a portion of the property a separate tenancy existed in favour of each of the petitioners and conse--quently independent cause of action would seem to arise in favour of the respondents necessitating separate proceedings in respect of each petitioner. We however, find no force in this contention for more than one reasons. In the first place, having regard to the pleadings of the parties, it would appear that even if separate applications were filed by the landlords against each petitioner tenant clearly common question of law and fact would have arisen for determination. It, therefore, follows that on the general principles underlying Order I, rule 3 of the Code of Civil Procedure, although the said provisions are not applicable to proceedings before the Rent Controller by their own force, the petitioners could be joined in the same proceedings. More importantly however, the substance of the objection is clearly technical in nature based as it is on the procedural aspect of the proceedings and it has been held by this Court that such technical objection is not applicable to proceedings in rent cases. See Ahsanul Haq v. Abdul Rahim 1979 SCM R 338. Lastly no attempt was made to show as to what and if an prejudice has been caused to the petitioners on account of their being joined in the same proceedings.
11. Much emphasis was laid by the learned counsel on the question of title in respect of the disputed property having been transferred to the respondents. It was urged, with reference to the sale- deeds by means of which the respondents claim to have acquired title to the property, that the stipulations contained therein referred only to the transfer of plot of land and not to the superstructure that exists thereon in respect of which the petitioners were tenants. This point does not seem to have been raised in the High Court or indeed at any lower stage of the proceedings.
12. The petitioners are, therefore, not entitled and we are not inclined to permit a new plea on facts to be raised at this stage.
13. In furtherance of this plea it was also urged that Sardar Faqir Muhammad had no title in the property and could not, therefore, convey any in favour of the respondents by means of the so- called sale-deeds. In this connection the learned Rent Controller has referred to the rent receipts produced by the petitioners themselves in which Sardar Faqir Muhammad was shown as landlord of the property in his own right. Further a reference was also made to the plea unequivocally taken by the petitioners in the plaint of the suit filed by them against Sardar Faqir Muhammad in which they had averred that they "are tenants under the defendant No.1 (Sardar Faqir Muhammad) in the suit property which comprised of different portions. The tenancy is on monthly basis and the plaintiffs have been paying rent of the suit property regularly up to March, 1980." Although elsewhere in the plaint the petitioners had pleaded that the property in question originally belonged to Maharaja Saheb of Poonch and after 1947 had come to vest in the Auqaf Depart-- ment, Government of Azad Jammu and Kashmir, the fact remains that the petitioners do not claim any interest in the property and are admittedly claiming only tenancy rights. In the suit filed by them in regard to which the revision petition is pending before the High Court, also they did not seek any adjudication with regard to the title in the property but only sought a permanent injunction to restrain Sardar Faqir Muhammad from disposing of the property by means of sale. It is not disputed before us that the suit was filed on 16-6-1980 whereas admittedly the sale-deeds in question were executed in March and April, 1980. The efficacy of the decree for permanent injunction to restrain Sardar Faqir Muhammad from disposing of the property, which at he had already accomplished before the institution of the suit, is to say the least doubtful, particularly on the question of title in the property. On, our enquiry whether the petitioners made any attempt to amend the plaint in order to challenge the validity of the sale-deeds, the counsel replied in the negative and could furnish no explanation why the petitioners had not done so. Thus, the sale- deeds being in the field, and particularly when it does not appear from the record that this, specific issue was raised in the proceedings at the trial stage, we are unable to find fault with the finding recorded by the Rent Controller) that upon the evidence before him it was established that there existed) relationship of landlord and tenant between the parties. As already pointed out we are unable to take up for determination any factual controversy at this stage in these proceedings on the question of title in respect of the property.
14. For similar reasons we see no force in the contention raised on behalf of the petitioners that as a result of the order suspending the operation of the judgment passed by the learned Additional District Judge reversing the ex parte decree passed in favour of the petitioners, the decree has been restored into operation, as we have already held that the sale-deeds have remained in the field unchallenged.
15. The overall position as admitted by the learned counsel appearing for the petitioners is that from January, 1981 the petitioners did not pay rent either to the alleged previous owner or to the respondents in respect of the demised premises, even though the petitioners are admittedly tenants in occupation of the premises. In the circumstances whatever consequences have ensued from this fact are of their own making by the petitioners and they cannot make a grievance thereof. This seriously reflects upon the bona fides of the pleas raised them. As would be seen from the foregoing discussion, except for the first 6ontention regarding the maintainability of the ejectment application which upon the authority of this Court we have repelled, all the other contentions advanced in support of this petition raise factual controversies, which in accordance with the settled principles ought have been raised in the original proceedings and if raised their determination would ordinarily be conclusive and not liable to interference in the facts and circumstances of this case. The petitioners have come up before us against the judgment of the High Court rendered in the constitutional jurisdiction which in this respect is very limited as repeatedly held by this Court.
16. For all these reasons there is not merit in this petition which is hereby dismissed.