1. ' MUHAMMAD AFZAL ZULLAH, J.---This appeal through leave of the Court is directed; against the judgment dated 18th June, 1985, of Balochistan High Court; whereby in a Rent Restriction matter it allowed the first appeal of the respondents' side. It had been filed against an order of ejectment passed by a learned Rent Controller.
2. ' The respondent No,1 is the original lessee while the other respondents were later on inducted as sub-tenants by the first two respondents-- respondent No,2, it appears, is the main sub-tenant as he was inducted by respondent No, prior to all other sub-tenants.
3. ' The appellant who claimed to be the owner of the land filed eviction application in May, 1978 - the grounds being subletting and non-payment of rent. The contesting reply to the application was submitted by respondents Nos.1 and 2; rather the reply on behalf of respondent No,1 was also submitted through respondent No,2, his attorney. The main pleas for contest were; firstly, that the land in question was not rented land; that the respondents' side had already purchased the land and also that there was no question of subletting as the owner/landlord was himself a party with respondent No,1 for "parting with the property" in favour of respondent No,2 who in due course had been letting out the same to others.
4. ' The non-payment of rent for the default period was not denied; but, in the context that respondents Nos.1 and 2 were not liable to pay the rent-- the first one on account of alleged agreement of purchase and the second one, presumably, on account of plea of adverse possession which was also raised from the respondents' side.
5. ' A solitary issue was framed; as to whether the plot in question was a "tented land", if so whether relationship of landlord and tenant existed?
6. ' The appellant led the evidence amongst others to support his plea that the land in question had been leased out for running a fuelwood stall while the respondents' effort was to disprove this plea.
7. They asserted in their evidence that "this plot was obtained for the purpose of raising construction" and further that subsequently the appellant agreed to sell it to respondent No,1 at the rate of Rs,3 per sq.Ft. And he had received some advance and instalments in pursuance of the agreement.
8. ' The learned Rent Controller held that "admittedly the rent has not been paid or tendered" and the "the respondent has obtained land and he as according to his own version started raising construction after sale agreement, so it is clear the land was leased out". Accordingly it was held that relationship of landlord and tenant existed. And thus the order of eviction was passed with the direction that vacant possession would be delivered to the landlord and further that the superstructure could be removed.
9. ' A learned Judge in the High Court on respondents' appeal primarily devoted attention to the appellant's contention that the purpose of letting out the plot was running a fuelwood stall and held that the present appellant had failed to produce "any cogent and convincing evidence in this respect". Accordingly it was also held that the plot was not let out as such for the purposes of "business" or "trade", hence it was not a "rented land". Consequently there being no relationship of landlord and tenant between the parties the respondents' side was not liable to eviction. The order of the Rent Controller was therefore set aside as without jurisdiction.
10. ' On the question of ownership the Rent Controller had left an option for respondents' side to file a "civil suit for specific performance". The learned Judge the High Court also made similar observation for the appellant/owner to file civil suit.
11. ' Leave to appeal was granted to examine the correctness or otherwise of the approach of the High Court. At the time of hearing of this appeal Abdul Qayum respondent through his counsel took the plea that he does not want to contest the appellant's case as also the appeal; with the request, that the order of the Rent Controller, be restored. Both the sides have placed on record additional documents-- the appellant's side in order to show that the original tenant/respondent No,1 having settled the matter out of Court does not want to contest the appeal, copies of some arbitration proceedings (out of Court) between the appellant and Abdul Qayum respondent No,1 have been placed on record. The A.O.R. Of the respondent No,2, while submitting a detailed reply to the pleas and appeal of the appellant in this Court has placed on record an order of dismissal of the appellant's petition for leave to appeal in a similar case where the parties were almost same; namely, the appellant and respondent No,2; in order to show that he premises in the said case were rented out for construction purposes and that no exception was taken by the landlord in this behalf for a very long time--practically throughout the period of tenancy. The respondents' side has also placed on record the alleged agreement of sale between the appellant and respondent No,1 and copies of three receipts purporting to support the plea that Abdul Qayum respondent had also paid instalments of Rs,400 each. A copy of notice dated 26-2-1978 sent by the lawyer of the appellnat to Abdul Qayum complaining about the non-payment of rent and subletting, has also been placed on record from respondents' side.
12. ' We have heard the learned counsel from both sides at length. It may straighaway be observed that the some owner as in this case; namely, Malik Abdul Wahid claiming to be the landlord instituted several other proceedings in similar circumstances for eviction of similarly placed tenants. The agreements, acts, circumstances and evidence, are not the same in all the cases. It is, therefore, clarified that the decision in each case would be relevant primarily to he facts and circumstances thereof. However, if there is an inference in the nature of a legal conclusion, it would be taken due note of. During this session of the Court this Bench also dealt with these cases.
13. Judgment in one of them would be referred in due course while the judgment in the earlier case between the appellant and respondent No,2 relied upon from the respondents' side, referred to above shall also be noticed again.
14. ' In order to appreciate the real nature of relationship between the parties, it will have to be seen as to what for the land was leased out. Although the appellant's plea that it was for running a fuelwood stall, was not accepted by the Controller in these terms, it was not rejected either. But his finding on the question of the purpose of the construction of houses as pleaded by respondent No,2 before him is very significant. His deposition was noted as follows:- "Finally Abdullah Jan respondent No,2 and attorney for respondents Nos.1, 3, 5 and 7 came in the witness-box and deposed that on 13-6-1960 the open piece of land was obtained by Abdul Qayyum from the applicant and this plot was obtained for the purpose of raising construction."
15. (Underlining is ours)
16. ' It is in this context that the finding that the tenant had started the construction on the execution of the agreement, was clearly rendered. The pleadings of the respondents' side is to the similar effect, but the deposition of respondent No,2 who alone has now contested the appeal, makes the position obvious. The relevant part reads as follows:- {{URDU TEXT}} ' All this leads to the following conclusions: ' The plot when leased out to Abdul Qayum in June, 1960, was not only for purpose of building small tenements but also that they were in fact also constructed, there and then.
(ii) These tenements were rented out by respondents Nos.1 and 2 to different parties at different times. When vacating, the sub-tenants used to hand over possession to them and not to the owner/landlord.
(iii) There is no mention of luelwood stall purpose' in the agreement, nor of `raising construction'; but the period of lease, payment of taxes etc. Do indicate the latter intention and in any case there is clear admission of respondent No,2 in this behalf.
(iv) Respondent No,2 was not the original lessee. He was inducted as subtenant by respondent No,1 soon thereafter. The appellant never objected to the sub-lease nor to the raising of the construction by both the respondents, nor to the utilisation by them of the premises as business venture of building and leasing out small tenements to different subtenants. The practice continued throughout.
(v) The alleged purchase of land three years later in 1963, was by Abdul Qayum respondent No,1; though Abdullah Jan (Respondent No,2) the sub-lease, also claims a share in this purchase. The documents relied upon are only in favour of Abdul Qayum. All this (about sale) is vehemently denied by the appellant. In any case there is practically nothing to support Abdullah Jan's claim which is contradicted by the documents produced by him; which could have supported Abdul Qayum's claim if he had not withdrawn it in this Court.
(vi) There is no dispute over the fact that rent was paid directly to the appellant by Respondents Nos.1 and 2 upto February, 1976. It was stopped in March, 1976 on the plea of ownership rights of Abdul Qayum since 1963. However, subsequently rent from March, 1976 upto 1983, it was asserted, was deposited presumably, under Court Orders as the eviction application was filed in 1978, inter alia, on ground of this default.
17. ' With these facts and circumstances supported by the admissions of Respondent No,2, the respondent No,1 was the lessee while respondent No,2 was the sub-lessee-- presumably with the consent of the appellant. The lease being principally for the business of building small cheap tenements for renting out to different persons at different times, it was such a purpose which would fall within the definition of "rented land". The relationship of the appellant and Respondent No,1 was of landlord and tenant. Respondent No,2 entered as sub-tenant within a month of the creation of tenancy and the other sub-tenants entered and vacated as was arranged between these tenants and not with the appellant/(landlord).
18. ' Respondent No,1, it seems, did receive the rent from the other subtenants but after paying due rent to the appellant upto February, 1976 stopped it for over two years; when, the appellant was compelled to file eviction. Respondents were accordingly clearly liable to be evicted on ground of default of payment of rent. Eviction on ground of sub-lease is not necessary in the circumstances of the case.
19. Respondent No,1 in his answer to this appeal has, through his counsel, requested for its acceptance.
20. Such a plea and position is possible and visualised in Order 2, Rule 6; Order 15, Rule 2; and Order 23, Rule 3, C.P.C. Which does not in terms apply to Rent Controller's proceedings. However, the interests of justice demand that their principles be applied in this case. This in any case is in addition to the foregoing findings, as a result whereof he is to be evicted as rent defaulter. And the sub-tenants also will go with him on this ground, as the rent was not paid for the default period by them-- neither directly as sub-tenants nor through the main tenant--namely Abdul Qayum.
21. ' The order of this Court dated 23-5-1988 in the similar other case (C.P. 40 of 1987) between the appellant and respondent No,2 is of no direct assistance in this case as the pleas, evidence and findings therein are not relevant here when put in juxtaposition to the same in this case.
22. ' However, our judgment dated 23-5-1988 in Civil Appeal No,25-0 of 1988, has relevance here; in that, the use of the land in that case for the purpose of constructing houses and subletting in accordance with 1936 agreement could be treated "principally for business". But in fact it was not so treated because the 1939 agreement therein superseding that of 1936, had prohibited such a business of construction for subletting.
23. ' In the light of the foregoing discussion this appeal is allowed. The respondents are ordered to be evicted. They shall deliver vacant possession to the appellant (his legal heirs) within four months.
24. They may remove the superstructure or sell it to the Landlord/s. Abdul Qayum having accepted appellant's claim he is not permitted to reagitate alleged agreement to sell. He also has no such right either against the appellant (legal heirs). There shall be no order as to costs.