' This is a First Rent Appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979 against the order, dated 26-5-1982 passed by the Senior Civil Judge, Shandadpur, District Sanghar in Rent Application No.3 of 1979 (originally numbered as 49 of 1968) whereby he allowed the ejectment application filed by the respondent against the appellants and directed the appellants to vacate the premises in dispute within 90 days of the order.
2. The case has a chequered history of about seventeen years of litigation. They had already two rounds of litigation up to High Court. However, the facts, briefly stated, are as under:-
3. The respondent was transferred an evacuee property i.e. shop premises bearing No. C. S. 139 situated at Shandadpur by the Settlement Department in an action held on 22-2-1960 which was confirmed on 31-3-1960. P.T.O. was issued to him on 19-1-1961 followed by the issuance of P.T.D. on 5-10-1964.
4. The appellants being in occupation of the said premises, the respondent sent a notice under section 30 of, the Displaced Persons (Compensation & Rehabilitation) Act, 1958 to the appellant-4 which, according to the respondent's Advocate, was served on the appellants on 29-8-1981, He, however, sent another notice under section 30 of the said Act to the appellants which was served on 3-5-1968, as admitted by the appellants. This notice was replied by the appellants. However, no rent was paid or offered to the respondent. The respondent, therefore, filed a Rent Case against the appellants on 14-9-1968 which was subsequently renumbered as 3/1979. The appellants filed written statement in the said case and took a plea that the property in question is an evacuee trust and as such they are not liable to pay the rent to the respondent. The learned Rent Controller, thereupon, framed a preliminary issue as to the existence of relationship of landlord and tenant between the parties who by his order, dated 3-7-1969 held that there was no existence of such relationship and accordingly he dismissed the said ejectment case. The respondent then filed an appeal against the said order before the Additional District Judge, Sanghar who by his order, dated 9-3-1971 reversed the finding of the learned Rent Controller and set aside the order holding the relationship of landlord and tenant to be in existence. The case was remanded to the learned Rent Controller. However, a Second Appeal was filed in the High Court against the decision of the Additional District Judge, Sanghar on preliminary issue which was also dismissed as withdrawn by the respondent by order, dated 2-2-1976 passed by this Court. In the meantime, the learned Rent Controller at the first instance passed an order, dated 29-4-1971 directing the appellants to deposit the arrears of rent with effect from 15-9-1969 to 31-3-1971 at the rate of Rs.16 per month before 31-5- 1971, being the total amount of arrears as Rs.1,064. The rent for the month of April, 1971 was directed to be deposited at the same rate in the Court before 15-5-1971. He also directed the appellants to deposit future rent at the same rate before 15th of every month. The appellants being aggrieved with the said rent order, dated 29-4-1971 filed an appeal in the Court of Additional District Judge, Sanghar which was, however, subsequently withdrawn by them.
5. Thereafter the matter proceeded in the Court of Rent Controller. since the preliminary issue regarding relationship of landlord and tenant stood decided already by the order, dated 9-3-1971 passed by the Additional District Judge, the learned Rent Controller framed the following two issues:-
(i) Whether the opponents (appellants) are wilful defaulters in payment of monthly rent.
(ii) What should the order be?
' The respondent produced P.T.D. alongwith his affidavit in evidence. The appellants produced a number of documents alongwith an affidavit in evidence and also examined one officer of the City Survey Department. The learned Rent Controller allowed the application for ejectment holding the appellants as wilful defaulters. The appellants have now challenged this order in this appeal.
6. I have heard Mr. Mazhar Ali B. Chohan, learned counsel for the appellants and Mr. Makhdoom All Khan, learned counsel for the respondent. The first and foremost contention raised by Mr. Chohan is that there is no relationship of landlord and tenant between the parties as the property in question belongs to Evacuee Property Trust. He has referred to a number of documents produced in the lower Court to prove this contention. As he did not produce any case-law on the point that a Rent Controller can go behind P.T.D. issued to the landlord, I allowed him time to produce any such decision. Today, again he has failed to produce any decision in his favour. On the contrary, Mr. Makhdoom Ali Khan has cited a number of decisions given by this Court, High Court of Lahore as well as the Honourable Supreme Court which have been reported as Sardar Ali v. Ghulam Muhammad 1982 CLC 1844, Ghulam Rasool v. Din Muhammad PLD 1967 Lah. 65, Sikandar Khan v.
Muhammad Amin PLD 1979 Kar. 59 and Abdul Karim v. Muhammad Ibrahim 1967 SCMR 79.
7. In the first named case 1982 CLC 1844 it was asserted that the property had been acquired by Lahore Improvement Trust and did not become part of compensation pool. The contention was repelled and the learned Single Judge of Lahore High Court was pleased to observe as under:- "The Rent Controller is not legally competent to go behind the P.T.O. In case the evacuee property had been acquired by the Lahore Improvement Trust and did not become the part of the compensation pool, the mattter could not be agitated before the Rent Controller. Reference in this behalf may be placed on Ghulam Muhammad Khan v. Muhammad Asadullah Siddiqi 1972 SCMR 340 and Abdul Karim v. Muhammad Ibrahim 1976 SCMR 79. It has been further held in Mehdi Hassan v. Ghulam Muhammad, etc. PLD 1964 Lah. 648 that a transferee in order to prove the transfer has simply to produce the P.T.O. For this reason as well the contention of the appellant cannot be legally sustained."
8. In the second named case PLD 1967 Lah. 665 the relationship of landlord and tenant was again denied by the appellant on the ground that the property is of Evacuee Trust as such respondent was not entitled to claim any rent from the appellant and eject him on the ground of alleged default. The learned Single Judge of the Lahore High Court observed as under :- "In the instant case it is not denied that the respondents had produced the P.T.O issued in his favour and this evidence was conclusive on his title as transferee of the property under the provisions of the Act. These precedents in my opinion conclude the point as against the appellant.
' That apart, in my opinion, the point could not have been convassed before the Rent Controller who was a Tribunal of limited jurisdiction. The question was entertainable only by the Chief Settlement Commissioner under section 4(3) of the Act.
Indeed, the appellant did move the Settlement Commissioner for a declaration under section- 4(3) that shop in dispute was trust property, but his application failed. Under proviso to the sub section, this order, subject to an order in Appeal to the High Court, is final."
9. In the third named case PLD 1979 Kar. 59 of this Court it was contended that the property in question was a Hindu Trust Property belonging to Karachi Pinjara Pur Association and, therefore, its transfer as well as sale by the transferee who was the respondent was a void ab initio. It was observed by this Court as follows:- "In the instant case, however, it has been shown that although the respondent had made clear his title at the outset the appellant had deliberately and frivolously denied the title of the respondent and the withheld payment of rent to the respondent. That being so, holding of further enquiry into the matter would have been unnecessary, even on the basis of the observations made in the above Karachi case."PLD 1976 Kar.
921.
10. In the fourth named case 1976 SCMR 79 it was contended that the petitioner (tenant) being himself a refugee from Jammu and Kashmir State, the transfer of the house in question to the respondent (landlord) was void. The Honourable Supreme Court observed-- "The learned counsel for the petitioner basing himself on the paragraphs 19 and 21 of the Settlement Scheme No.IV argued that the house being in possession of the petitioner who is a refugee from the State of Jammu and Kashmir, its transfer to the respondent was void and therefore petitioner was not liable to ejectment. As rightly held by the High Court, the Settlement Authorities in exercise of their exclusive jurisdiction had transferred the house in dispute in favour of the respondent who having paid the price was issued a P.T.O. The petitioner who had failed to file any appeal or revision against the transfer of the house in favour of the respondent, cannot now agitate against the transfer before the Rent Controller who exercises a limited jurisdiction under the Ordinance."
11. Mr.Mazhar Ali Chahuan, however, placed his reliance on a case reported as Rehmatullah v. Ali Muhammad and others 1983 SCMR 1064. He invited my attention to the following observations of the Honourable Judge, Muhammad Afzal Zullah, J who delivered the judgment:- "The first question posed in the last but one paragraph does not present any serious difficulty.
Whether it is the forum of Rent Controller or a Court exercising its appellate or constitu tional jurisdication, there is no scope for the argument that even if a landlord fails to establish the relationship of landlord and tenant beyond reasonable doubt he would still be allowed the benefit of affirmative finding on the issue. There is neither any general principle nor the relevant law governing proceedings either before the Controller as a special tribunal or the appellate Court that when a party is required to establish a fact positively, it shall be deemed to have discharged its burden only by obtaining a tentative opinion and not a finding beyond a reasonable doubt. It is not necessary to go into the difference regarding appreciation of evidence in criminal proceedings as compared to those of civil nature, as the jurisprudential consideration regarding burden on an accused person is foreign to the present discussion. This finds support from the relevant law, namely, Rent Restriction Ordinance; section 13 whereof requires that if the Controller, after affording reasonable opportunity to the tenant, "is satisfied" that one or the other conditions having been fulfilled he is liable to be evicted (of course on such satisfaction) can pass orders visualized by the said provision. This clearly shows that the finding of fact is to be reached after complete satisfaction and that too as a result of opportunity having been afforded to the parties concerned to satisfy the Controller one way or the other. When the Controller is permitted and/or required to give only a tentative finding in respect of any matter the law has specified it."
' These observations were made in constitutional jurisdiction wherein the order of the payment of rent of the Rent Controller was being considered on the basis of sale-deed and rent note challenged as forged and fictitious. As such the facts of this case are distinguishable to the instant case.
12. He also referred to Sheikh Muhammad Ali v. Sheikh M. Mashkoor Anwar 1984 SCMR 518 and Akbar etc. v. Additional District Judge NLR 1984 Civil 550 and unreported judgment in Ilnd Appeal No. 72 of 1980 by a learned Single Judge of this Court.
13. The case reported in 1984 SCMR 518 is also distinguishable inasmuch as the West Pakistan Government had acquired the area in question after due sanction having been accorded by the Federal Government under section 16(3)(b) of the Pakistan Administration of Evacuee Property Act, 1957. In view of the above the Lahore High Court had, in its judgment reported as Sh. Muhammad Sadiq v. Chief Settlement Commissioner and another PLD 1963 Lah. 499 held that the said property was immune from acquisition under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the transfer by the Settlement Authorities of any property included therein was illegal. The Federal Government, however, while according sanction of the acquisition of property in favour of the Government of West Pakistan had laid down certain conditions, inter alia, that the refugees who obtained P. T. D. were to be compensated by an award of alternative land. Thus, the petitioner, as submitted, was entitled to the portion transferred to him by the Settlement Department under the above condition. It was further urged in the Supreme Court that the petitioner had, on account of that condition of acquisition, become entitled to get from the Lahore Improvement Trust a portion of property in view of the said condition and undertaking given in the High Court. While disposing of the petition the Honourable Supreme Court observed that the dismissal of the IInd Appeal by the High Court is no impediment for the Lahore Improvement Trust to consider the case of the petitioner and to transfer the property in question if he is entitled to it under the terms of the sanction issued by the Central Government and the resolutions passed by the Trust in the relevant regard and practice it has followed in similar cases. As would appear from these facts of the judgment passed by the Honourable Supreme Court the case relied on by Mr. Chohan is quite distinguishable.
14. In the other case relied on by Mr. Chohan NLR 1984 Civil 550 the evidence as to the ownership of the property in favour of landlord was held to be next to nothing whereas in the present case the evidence is conclusive.
15. The last case relied on by Mr. Chohan being the decision of this Court given by a learned Single Judge in IInd Appeal No. 72 of 1980 is also distinguishable inasmuch ss the appellant (landlord) in the above case had filed a Revision Application as a last resort before the Federal Government which had been dismissed, holding that the property in question belonged to Evacuee Trust Board.
No such application was moved or any order obtained from the Settlement Authorities or the Chairman Evacuee Trust Board or the Federal Government so as to nullify the P.T.D. issued in favour of the respondent.
P.T.D.
16. The facts as have come on record reveal that the property was sanctioned as long back as 1960 and P.T.O. and P.T.D. were issued to the respondent as long back as 1961 and 1964, respectively of which the appellants had notice at least since 1968 but no step was taken by the appellants to challenge the said order of transfer in favour of the respondent by the appellants before the Settlement Authorities or the Chairman, Evacuee Trust Board or the Federal Government. Merely to deny the title of the respondent before the Rent Controller in proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959 is not sufficient to absolve the appellants from the liability of paying the rent to the respondent or depositing the same in the Court. Relying on the several decisions of this Court, the High Court of Lahore and the Honourable Supreme Court, discussed above, I am of the view that the learned Rent Controller having a limited jurisdiction to exercise under the West Pakistan Urban Rent Restriction Ordinance, 4959 or for that matter under the Sind Rented Premises Ordinance, 1979, could not go into the question and inquire as to the title of the respondent in the presence of P.T.O. and P.T.D. issued by the Settlement Authorities in favour of the respondent produced before him in evidence. I am, therefore, of the view that the learned Rent Controller was justified in satisfying himself under the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 that there existed relationship of landlord and tenant between the parties herein and that the appellants have not paid or tendered the rent due to the respondent.
17. Mr. Chohan next submitted that the rent case was filed under the West Pakistan Urban Rent Restriction Ordinance, 1959 wherein the word "may" has been used as against the word "shall" used in the Sind Rented Premises Ordinance, 1979. He, therefore, pleaded that the learned Rent Controller as well as this Court should exercise discretion in favour of the appellants as there was a question of title agitated before the Rent Controller and in these circumstances the appellants cannot be held as wilful defaulters. In support of his plea he relied on 2 cases reported as Major Feroze Din Khan and others v. Sh. Muhammad Amin PLD 1967 Lah. 966 and Noruddin and another v.
Muhammad Qasim and 6 others PLD 1976 Kar.
921.
18. After hearing the submissions of the learned counsel for the appellants and going through the two decisions cited by Mr. Chohan, I felt inclined for a moment, to agree with him but Mr. Makhdoom All Khan, learned counsel for the respondent invited my attention to the order passed by the learned Rent Controller on 29-4-1971 whereby the appellants were directed to pay the arrears of rent at the rate of Rs.16 per month with effect from 15-9-1965. The order also contains a warning to the appellants that "in case of default the defence of the tenant will be struck off and landlord will be put in the vacant possession of the property in dispute forthwith". It is admitted position that no rent was deposited in the Court in pursuance of the said order till 1980.
19. Mr. Makhdoom Ali Khan further submitted that after holding the relationship of landlord and tenant in favour of respondent that such relationship did exist between the parties, there was even no necessity for deciding the case on merits and the respondent was entitled to be immediately put into possession. He relied on a number of cases reported as Muhammad Shah Alam v.
Muhammad Abdul Ghafoor 1979 SCMR 443, Mushtaq Hussain v. Muhammad Shafi 1979 SCMR 496, Pirdino and another v. Mst. Khursheed Begum 1982 CLC 1927 and Ghulam Rasool v. Ch. Din Muhammad PLD 1967 Lah.
665.
20 I agree with the submissions of Mr. Makhdoom All Khan that the course of action might have been taken in the manner as submitted by him but since the entire case has been decided on merits, this submission may not be relevant at this stage. I am, however, not pursuaded to agree with the learned counsel for the appellants that the discretion in this case should have been exercised by the learned Rent Controller in favour of the appellants. In my view his defence was liable to be struck off merely on the ground of wilful default in complying with the order of the learned Rent Controller passed on 29-4-1971 for deposit of arrears as well as future monthly rent during the pendency of the case. It may also be noted that the appeal filed by the appellants against that order before the learned Additional District Judge had been dismissed as withdrawn.
The contention of Mr. Chohan that subsequently another order was passed on 9-4-1980 is of no force inasmuch as the fact remains that the first order was not complied with by the appellants. In any case, the fact of non-compliance of rent order dated 29-4-1971 is not being considered by me to strike of the defence of the appellants which is not the case before me but I have considered it to be a factor for not agreeing with the plea of Mr. Chohan for exercising discretion in favour of the appellants.
21. In the result, the finding of the learned Rent Controller that the appellants are wilful defaulters is maintained and the appeal is dismissed with costs.
22. Before parting with this case I would like to refer to para. 4 of the objections filed by the respondent in this case against the appellants wherein a fact has been mentioned that a portion of the alleged trust property bearing No. G-141 has itself been transferred to one Muhammad Iqbal son of the appellant. The fact of transfer has not been denied by Mr. Chohan at the bar but he has only disputed the relationship of Muhammad Iqbal with one of the appellants Muhammad Umar that he is not his son but is his nephew. He, however, admits that Muhammad Iqbal is the son of Imam Bux (since deceased) who filed this appeal alongwith Muhammad Umar, now represented through his legal representatives.
23. In view of the above judgment passed by me in the main appeal, C.M.A. 855 of 1984 and 1900 of 1983 for additional evidence are also dismissed.