' The above appeals are directed against a common judgment dated 15th January, 1980 passed by the learned I1Ird Additional District Judge, Karachi in Rent Appeals Nos. 648 of 1969, 649 of 650 of 1969, 651 of 1969, 653 of 1969, 654 of 1969 and 656 of 1969, maintaining the order of the learned Rent Controller for striking off defence of the appellants.
2. I intend to dispose of the above seven appeals, the details of which are given below, by this common judgment :\ {{TABLE}} I Name of Appellants I II Appeal I No, I I Rent Controller's 1st Rent I Case No, Appeal No, I Riazuddin 83/80 648/69 2355/68 Ch. Barkat Ali 84/80 653/69 2359/68 Rahmatullah 85/80 649/69 2352/68 Ahmed Bhai Kassam 86/80 650/69 2364/68 Abdul Aleem 87/80 651/69 2362/68 Shabbir Ahmad 88/80 654/69 2358/68 Sharafat Hussain 89/80 656/59 2357/68 {{TABLE}} ' The above appeals have chequered history. The respondents filed 15 suits against the, occupants, including the present seven appellants, of plot of land bearing No, 234, Sohrab Katrak Road, Artillery Maidan, Saddar, Karachi, in 1959 in the Court of Vth Sub-Judge at Karachi on the averment that he was owner of the plot and that the appellants were trespassers. The above suits were dismissed and it was held that the occupants were tenants and not trespassers since 1949. First Appeals filed against the above judgment and decree were dismissed by the learned Additional District Judge and so also the second appeals were dismissed by the erstwhile High Court of West Pakistan, Karachi Bench by a judgment dated 20th October, 1967, whereby the finding of the two courts below that the occupants were the tenants and not trespassers was maintained. After that the respondents filed 15 rent applications for ejectment from the portions of the land in possession of the opponents including against the present appellants. The above rent applications were resisted by the opponents in the applications including the present applicant and inter alia it was pleaded that there was no relationship of that landlord and tenant between the parties. It was also pleaded that the subject-matter of the rent application was not the portion of land as stated by the applicant but a house constructed by the opponent from his own pocket. It seems that the learned Rent Controller by a consent order dated 19th December, 1968 consolidated rent cases Nos. 2350 to 2364 of 1968 and framed a preliminary issue in all the cases to decide the question of relationship of landlord and tenant. It may be advantageous to reproduce hereinbelow the above consent order which reads as follows : "Counsels of parties are present. Besides this case there are 14 other rent cases filed by same landlord. The premises in all the cases are located on a plot and common points of law and facts are involved in all these cases. Counsel of parties also concede that these cases be consolidated. I therefore order that R. Cases No, 2351 to 2364 of 1968 be consolidated with this case. W. Statements are filed. Preliminary issue is framed in all the cases to decide if relationship of landlord and tenant exists between the parties. For evidence on the issue on 12th April, 1969."
' It further seems that thereafter the respondent examined one Muhammad Nawaz, rent collector on preliminary issue before the Rent Controller on 12th April, 1969, who produced certified copies of the three judgments passed in the aforesaid suits, first appeals and second appeals in which it was held that the occupants of the plots were tenants and not trespassers as Exhs. 6, 7 and 8. It may be observed that the above witness was not cross-examined by the counsel of the present appellants and the other opponents. On the contrary after recording of the evidence of the aforesaid witness, they conceded on the question of relationship. Consequently, the learned Rent Controller passed the order on the above date i. e. On 12th April, 1969 deciding the question of relationship in favour of the respondents and the case was posted for rent accounts on 23rd May, 1969. It may be advantageous to reproduce herein below the above order dated 12th April, 1969 which reads as follows :- "Counsel of parties are present. One witness on side of applicant is examined. Learned counsel of opponent concedes that relationship of landlord and tenants exists between the parties and does not want to oppose this fact. I therefore decide this issue in favour of applicant and hold that relationship of landlord and tenant exists between the parties in all the cases. For rent accounts on 23rd May, 1969."
' After that a tentative rent order was passed on 23rd May, 1969 in the following terms : "Counsel of parties are present. Heard them on tentative rent. The period as arrears which can be granted to applicant is agreed to be three years prior to the filing of the case. There is dispute on rate of rent counsel of opponent puts it at Rs, 6 only while applicant has claimed at Rs,
15. I tentatively order that rate of rent may be at Rs, 9 p. m. Also order that opponent to deposit arrears of rent in Court from 22nd September, 1965 to 30th April, 1969 at the rate of Rs, 9 before next date.
He should also deposit future rent in Court at the same rate before 15th of every month. For issues on 13th August, 1969."
' It seems that as the appellants and the other opponents in the rent applications had committed default of the above tentative rent order, the respondents filed applications for striking off defence on 27th August, 1969 which were allowed by the learned Rent Controller by his order, dated 16th October, 1969. It was found that the appellants and the other opponents in the rent applications deposited rent for 37 months instead of 43 months. The appellants and some of the other opponents being aggrieved by the above order of the Rent Controller filed Rent Appeals Nos. 648 of 1969 to 656 of 1969, which were dismissed in limine by the learned 3rd Additional District Judge at Karachi by his order, dated 10th November, 1969. The appellants and some of the other opponents filed second appeals Nos. 541 _to 550 of 1969, which were dismissed by a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench by judgment dated 25th May, 1970. The appellants filed L. P. As. Nos 141 to 148 of 1970, which were allowed by a consent order, dated 17th September, 1979 and the cases were remanded to the learned 3rd Additional District Judge, Karachi for hearing the first rent appeals on merits after admission as they were dismissed in limine originally, as observed hereinabove by order, dated 10th November, 1969. After the above remand order, the learned 3rd Additional District Judge by his judgment, dated 15th January, 1980 under the above first rent appeals and maintained the order of the learned Rent Controller. The appellants being aggrieved by the above orders of the learned Rent Controller and the learned 3rd Additional District Judge have filed the present second appeals.
3. In support of the above appeals Mr. Fazal Bhoy has urged as follows :
(i) That the learned Rent Controller should have recorded the evidence in each of the rent case on the question of relationship instead of recording evidence in the aforesaid Rent Case No, 2350 of 1968 and, therefore, the finding on the question of relationship is not in accordance with law.
(ii) That the learned Rent Controller factually had no jurisdiction as the subject-matter of the rent applications was open plot and not a building or rented land.
(iii) That none of the Courts below has dilated on the question, whether there was wilful default and that factually there was any wilful default of the tentative rent order.
' On the other hand Mr. Abdul Mateen, learned counsel for the respondents has urged as follows :
(i) That since all the rent applications were consolidated by consent, the learned Rent Controller was competent to record the evidence on the question of relationship in the leading case.
(ii) That even otherwise, the factum that the evidence on the question of relationship was only recorded in the leading rent case, it became redundant in view of the concession of the learned counsel for the appellant on the question of relationship.
(iii) That the appellants have not raised any plea either in their written statement or during the arguments till the time of filing of the present second appeals in 1980, that the Rent Controller had no jurisdiction on the ground that the subject-matter of the rent applications was open plot, and therefore they cannot be allowed to raise this plea first time in the second appeals after the expiry of about 11 years.
(a') That in any case, on the basis of the pleadings of the parties; it is evident that the appellants had raised construction on the plot and were using the same as house since 1949, the provisions of the late West Pakistan Urban Rent Restriction Ordinance, 1959 were applicable.
4. Mr. Fazal Bhoy in support of his above first submission has referred to the case of Malik Aman v.
Haji Muhammad Tufail (1), in which the facts were that seven rent applications were filed for ejectment on the ground of causing damage to the property and for reconstruction. The learned Rent Controller recorded evidence in one case of both the parties and placed the copies of the statement verbatim in the other six cases and in some cases carbon copies of certain witnesses were placed. It was held by a learned Single Judge of Lahore High Court that the above procedure adopted by the learned Rent Controller was against principles of natural justice as it had caused prejudice to one of the parties.
' The above case has no application to the present case for the simple reason that by consent of the parties all the 15 rent applications were consolidated and the evidence was to be recorded only on the question of (1), PLD 1976 Lah. 1446 ' relationship, and secondly, the issue relating to relationship was decided upon the concession made by the learned counsel for the appellants in terms of the aforesaid order, dated 12th April, 1969.
5. Adverting to the second contention of Mr. Fazal Bhoy that as the subject-matter of the rent applications were portions of open plot, they were not covered either by the definition of "building" and "rented land" given in the late West Pakistan Urban Rent Restriction Ordinance, .1959, it may be observed that no such plea was raised by the appellants in their written statements nor this plea was raised by them before the Rent Controller at the time of passing of the order for striking off defence or in the aforesaid first rent appeals, when the above appeals were dismissed in limine, nor before the learned Single Judge in the second appeals, nor before the learned Judges of the Division Bench in the aforesaid L. P. As., nor it was raised before the learned Additional District Judge after the aforesaid consent remand order, dated 17th September, 1979 passed by a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench in the aforesaid L. P. As. The above point has been raised for the first time in the present second appeals.
6. I had heard the arguments yesterday and I had asked the learned counsel for the parties to satisfy me on the following two questions today :- "(1) Whether the appellant can be allowed to raise the plea after the expiry of nearly 15 years to the effect that since the subject-matter of the rent application was an open plot and not rented land the learned Rent Controller had no jurisdiction in the matter at all.
(2) Whether the fact that the appellant had raised construction on open plot would make any difference as to the nature of the plot."
' On the above questions the learned counsel for the parties have addressed arguments today before me.
7. (a) Mr. Fazal Bhoy, learned counsel for the appellants has referred to the following cases.
(i)Sultan Ali v. Khushi Muhammad, PLD 1983 SC 243, in which the question, whether the order passed on 21st February, 1945 in the previous suit debarring the appellant from all rights to redeem the mortgage constituted res judicata in the subsequent proceedings. In that context in the above-cited case, the honourable Supreme Court was pleased to hold that since the aforesaid order, dated 21st February, 1945 was void order in violation of the provisions of Order XXXIV, rule 7(2), C. P. C., the same did not constitute res judicata for the subsequent proceedings. It was also observed that "it is well-established that total absence of jurisdiction, can never be waived by the parties nor can any illegality in an order be cured by the consent of parties."
(ii) Muhammad Afzal v. Board of Revenue, West Pakistan, PLD 1967 SC 314. In the above case the question before the honourable Supreme Court was whether an order of Collector passed under section 91 (3) of the Sind Irrigation Act, 1879 could be interfered with by the Board of Revenue, Sind.
The High Court declined to interfere with the above order on the ground that the petitioner had not raised this objection before the Board of Revenue. The honourable Supreme Court while allowing the appeal of the petitioner observed that High Court was in error in not allowing the petitioner to agitate the question of jurisdiction in the writ petition under Article 98 of the late Constitution of Pakistan, 1962, and that mere fact that petitioner submitted to the authority of Tribunal in the capacity of Tribunal neither confers jurisdiction on Tribunal nor deprives the petitioner of his right to challenge the order under Article 98 of the Constitution.
(iii) Fazal Rehman and 12 others v. Board of Revenue N.-W. F. P. And 6 others PLD 1983 Pesh. 1, in which a Division Bench while considering the question of jurisdiction of the N.-W. F. P. Board of Revenue relied upon the above Supreme Court case's judgment of 1967 and held that mere submission by the petitioner in the capacity of respondent to the authority of the Board of Revenue cannot be said to have conferred jurisdiction on Board which it did not possess nor could petitioner be said to have waived their rights to challenge it.
(iv) Hassan Muhammad v. Settlement Commissioner (Land) and 4 others 1983 CLC 2935. In the above case the question before a learned Single Judge of the Lahore High Court was, whether the order passed by a notified officer under section 2 (2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act (Act XIV of 1975) after the remand order b) the High Court was competently passed. It was held that the remand order of the High Court cannot be reasonably construed as conferring jurisdiction on functionary otherwise not possessed of any jurisdiction and that the finding recorded by a person lacking jurisdiction is of no value.
(v) Azad Jammu and Kashmir Government through Chief Secretary and 4 others v. Sardar Muhammad Ibrahim Khan 1983 P Cr. L J 682, in which the question was, whether the High Court of Azad Jammu and Kashmir had jurisdiction to hold proceedings in camera arising out of A J & K Civil Defence Rules, 1962. It was held that in the absence of any statutory limitation or restriction the High Court was fully empowered to take proceedings in camera in spite of absence of any express provision in the relevant law. It was also observed that consent or agreement of parties does not give jurisdiction to Court or Tribunal.
(vi) Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 90, in which it was held by the honourable Supreme Court of Pakistan that points involving inquiry into the question of fact cannot, in the absence of strong reasons, be allowed to be raised for first time in appeal but a pure question of law which means a question which does not require any investigation into fact can be raised at any stage. In that context the following observation was made : "It is true that a pure question of law means a question which not only does not require any investigation into facts, but which could not have been met by a plea of fact if raised at the proper stage and ordinarily it will be a good argument as against a plea being a plea of law that it could have been met by an allegation of fact.
' In the above Supreme Court case the question in issue was whether an agreement in favour of minors was valid, it was held that it was a pure question of law.
(7) (b) On the other hand Mr. Abdul Mateen has relied upon the following cases ;
(i) Idris Ahmad Khan v. Syed Ali Zahid Raza and another PLD 1972 Kar. 493, in which a Division Bench of this Court held that the petitioner acquiescing in and failing to object to the jurisdiction of Tribunal below cannot be allowed to challenge the order as being without jurisdiction in the High Court.
(ii) Nawab Khan and another v. Waris Iqbal and others PLD 1976 SC 394. In the above case the question before the honourable Supreme Court was, whether an order passed by one Mr. Nagar, dated 23rd November, 1963 who was having dual powers of Deputy Settlement Commissioner as well as Additional Custodian was within his jurisdiction. In the above context the following observations were made : A perusal of Mr. Nagar's order, dated 23rd November, 1963, shows that both the parties appeared before him, filed documents in support of their respective positions and were heard by him through their counsel. No objection appears to have been taken at any stage of the proceedings in which the respondents fully participated. Feeling dissatisfied with this order they could not be permitted to turn round and question his jurisdiction in view of this Court's dictum in Sh. Bashir Ahmad v. Rahimuddin and another 1970 SCMR 90. Even otherwise, a presumption of legality would attach to this order under section 114 (h) of the Evacuee Act as observed by this Court in Majid Ali Naqvi v. Additional District Judge and Ex Officio Settlement and Rehabilitation Commissioner and another 1970 SCMR 375."
(iii) Sardar Muhammad Ayub v. Pakistan through the Secretary 1969 SCMR 96, in which the honourable Supreme Court of Pakistan while declining leave in a petition against the judgment of a Division Bench at Peshawar of the erstwhile High Court of West Pakistan observed that the High Court rightly held that the petitioner after having submitted to the jurisdiction of the Settlement Commissioner could not challenge his order because it went against him and that in any case the High Court in such circumstances could refuse to exercise its discretion under Article 98 of the Constitution.
(iv) Mst. Samina Khatoon v. Settlement and Rehabilitation Commissioner and another PLD 1967 Kar.
315. In the above case a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench held that two cabins on roof of the top floor of a building used as residential units and later on converted into pucca construction could be validly transferred as residential unit by the Settlement Department under the Settlement Scheme.
(v) Muhammad Moosa and 2 others v. Shabbir Ahmad and another 1984 CLC 3227. In the above case the facts were that four plots were purchased by the respondent from the Settlement Authorities in an open auction. The appellant tenant after raising construction were using the same for residential and commercial purpose. The transferee filed ejectment case under the Sind Rented Premises Ordinance for ejectment. The Rent Controller passed the ejectment order, against which appeal was filed. In the appeal before this Court, it was contended that since only the plot was transferred to the respondent the same could not have been the subject-matter of the rent proceedings. A learned Single Judge (on account of printing mistake shown as D. B. Judgment) of this Court after reviewing the case-law held that the case fell within the purview of section 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958 and a statutory tenancy was created and ejectment of such tenant could only be secured through the forum of Rent Controller under the Sind Rented Premises Ordinance, 1979.
(vi) Mst. Zainab Bibi and 5 others v. Mst. Lqbal Begum and another PLD 1974 Lah. 350, in which the facts were that on an evacuee plot certain unauthorised constructions were raised by the occupants and the same were used for residential purpose. The plot of land with construction thereon, was transferred by auction to a person. In second appeal it was contended before the High Court that since the subject-matter was residential plot and not rented land within the meaning of the expression 'use', in the West Pakistan Urban Rent Restriction Ordinance, 1958, the Rent Controller had no jurisdiction over the matter. It was held that construction over the plot is an accretion enjoyable by the owner of the property and that the person in occupation would be a tenant of transferee and would be deemed to be in occupation of a house within the ambit of the above Ordinance.
(vii) Muhammad lqbal v. Meraj Din and another PLD 1976 Lab 831. In the above case the facts were that respondents in the second appeal were the transferee of plots by the Settlement Department on the above plots certain construction was raised by the occupants and some construction was used as a shop and the other as house. In the Second Appeal before a learned Single Judge of the Lahore High Court, it was contended that the rent proceedings under the Rent Ordinance were not competent as the property originally transferred were plots though later converted into pucca construction and used as a shed and residential house, and therefore were not covered by the provisions of the West Pakistan Urban Rent Restriction Ordinance. It was held that as on both the plots there were constructions and one was being used as shed and the other as residential premises, the appellant was statutory tenant in terms of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, and since they were defaulters they were liable to be ejected under the provisions of the late West Pakistan Urban Rent Restriction Ordinance.
(viii) M. S. Khan v. Ch. Muhammad Afzal 1984 SCMR 330. It may be observed that leave to appeal was declined by order, dated 26th February, 1975 passed by the learned three Judges of the honourable Supreme Court namely, Hamoodur Rehman, C. J., Muhammad Yaqub Ali and Muhammad Gul, but the above case has been reported in March, 1984. In the above case the facts were that the lessee resisted ejectment application on the ground that what was leased to him by lessor was an open site which in fact belonged to the Local Authority and not to lessor and that lessee had raised structure on site on his own expenses and therefore he was not liable to ejectment at the instance of the lessor. The Rent Controller had passed tentative rent order in the proceedings. The Rent Controller allowed the rent application on the ground of default which order was maintained by the Additional District Judge and the High Court. The petition for leave was dismissed by the honourable Supreme Court and while dismissing the same inter alia the following observations were made "In support of this petition learned counsel for the petitioner submitted that the two admissions relied upon by the learned Rent Controller and the learned Judge in the High Court, so as to operate as complete estoppel against the petitioner to dispute the title of the respondent in the premises in dispute, were not properly proved in proceedings culminating in this petition. The fact that in the first application for ejectment, the petitioner had admitted his tenancy under the respondent in respect of the premises in dispute was not denied. It was not denied either that the copies of the statements in the earlier ejectment proceedings were brought on the record of the instant proceedings and exhibited. Not only that, it appears that in the instant proceedings the Rent Controller had on 30th September, 1968 ordered the petitioner under section 13(6) of the Ordinance to deposit Rs, 660 as arrears of rent within a specific time. Instead of complying with the order, the petitioner filed an ar peal which was dismissed by the appellate authority on 12th July, 1969. His second appeal in the High Court succeeded on 7th December, 1972, but the case was remanded to determine whether the Rent Controller had jurisdiction in the case. The preliminary issue was again found against the petitioner vide order, dated 7th November, 1974. That being so, the petitioner is not only liable to ejectment on account of default, but also because of the striking of his defence under section 13 (6) of the Ordinance.
' There is no merit in this petition, which is hereby dismissed."
8. There cannot be any cavil to the propositions propounded in the cases cited by Mr. Fazal Bhoy that the question of jurisdiction or a pure question of law can be raised even at the appellate stage and that the consent of the parties cannot confer jurisdiction on a Tribunal which it does not B possess of. But at the same time, it is also evident that if a question of law could have been met by an allegation of fact, such question of law c cannot be allowed to be raised at the appellate stage.
In the instant case though in the rent applications the respondents had sought ejectment from the portions of the plot in question in occupation of the appellants but in the written statement it was pleaded by the appellants that they had raised constructions on the plot by their own cost and were using the same as house. In the first round of litigation which had commenced by filing of the suits by the respondents, it was held upto the High Court level in second appeals that the appellants were tenants since 1949 and not trespassers. The appellants, as pointed out hereinabove raised the question of relationship in the rent applications but their counsel conceded the above issue as is reflected in the above-quoted order, dated 12th April.
1969. It was never the case of the appellants upto 1980 before the filing of the above appeals that the subject-matters of the rent proceedings are not covered by the definition of building or rented land given in the late West Pakistan Rent Restriction Ordinance. In the above Karachi case of 1984 and Lahore cases of 1974 and 1976, it was held that though the Settlement Department had transferred the plots as building sites to the transferee, but since there were constructions raised on the plots, though unauthorisedly, the occupants were the tenants and were amenable to the provisions of the late West Pakistan Urban Rent Restriction Ordinance. In the above Supreme Court case of 1984 SCMR 330 the subject-matter of the lease was an open plot, on which the construction was raised by the lessee. The Supreme Court maintained the order of ejectment passed by the Rent Controller.
' I am, therefore, of the view that it will not be just and proper to non-suit the respondents on the above ground raised in the above appeals after expiry of more than, a decade from the commencement of the ejectment proceedings and after the matter has already been agitated five times before four forums referred to hereinabove in para.
5. In the instant case, it cannot be urged that the premises in occupation of the appellants are open plots as admittedly according to the appellants own showing their exist structures since 1949 on the plot which are used for residential purposes. The above constructions are accretions to the plot. The effect of which is that, it has changed the character and nature of the premises in dispute.
9. Reverting to the last contention of Mr. Fazal Bhoy that both the Courts below have not gone into the question of wilful default, it may be observed that the appellants' plea before the Rent Controller was that they had misunderstood the rent order and thought that they were liable to deposit rent for three years only. The above plea is belied by the above-quoted tentative rent order as the period for which the rent was to be deposited was mentioned in the rent applications namely i,e,, from 22nd September, 1965 to 30th April, 1969. The commencing date was from a date three years prior to the filing of the rent cases. The above explanation has been found not sufficient by the two Courts below. In my view, the E above finding seems to be in consonance with law and does not call for an interference in a second appeal.
' Mr. Fazal Bhoy has referred to the case of Hashim Khan v. Ghulam Nabi and 7 others (1), in which the facts were that the learned Rent Controller had passed a tentative rent order on 14th May, 1966 directing the tenant to deposit arrears of rent before 15th July, 1966 and current monthly rent regularly by 15th of each month, but the tenant's counsel wrongly interpreted the order and told his client that the arrears as well as current rent due were to be deposited by 15th July, 1966. The Supreme Court allowed the appeal of the tenant and held that the above misunderstanding on the part of the learned counsel for the appellant was sufficient to entitle the tenant' to the condonation of the delay in commission of the default in respect of the current monthly rent.
' The above case has no application to the instant cases as the period for which the rent was to be deposited was specified in the tentative rent order and it was not the case of the appellants that they were told by their counsel something other than what was directed in the tentative rent order.
I am not inclined to agree with Mr. Fazal Bhoy that in case of -default of a tentative rent order the Rent Controller should write in his order that the default was wilful and so also the first Appellate Court. If there is a default of a tentative rent order, it is for the tenant to explain the default. If the Rent Controller does not accept the explanation of a tenant in respect of the default of the tentative rent order, he is bound to order striking off defence in terms of section 13 (6) of the late West Pakistan Rent Restriction Ordinance, 1959. It is not necessary that the Rent Controller should state in his order that the default of the tentative rent order was wilful. Once the Rent Controller does not accept the explanation, he in fact impliedly holds that there was wilful default.
9. For the aforesaid reasons the above appeals are dismissed with no Order as to costs. However, I allow four months' time from today to the appellants to hand over the vacant possession of the subject-matter of the rent applications.
(1) 1973 SCMRI12 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.