This appeal is directed against the order dated 27th of October 1972, passed by the Additional District Judge, Lahore, rejecting the appeal of the: appellant
2. The facts of the case are that the respondent filed an application for ejectment of the appellant under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, from the portion of the property in question on the ground that the appellant had defaulted in the payment of rent in spite of having received notice under section 30 of the Displaced Persons (Compensa--petition and Rehabilitation) Act, 1958.
3. This application was resisted by the appellant. It was pleaded that relationship of landlord and tenant between the parties did not exist and as such the respondent was not liable to be paid any rent in respect of the; Property in question. On the basis of the pleadings of the parties as well as the statements made before the Rent Controller before the framing of the issues, the following issues were framed;
(1) Whether relationship of landlord and tenant exists between the parties ?
(2) Whether notice under section 30 of the Displaced Persons (Com--pensation and Rehabilitation) Act, was served upon the respondent --appellant?
4. The learned Rent Controller found both the issues against the appellant and held that relationship of landlord and tenant existed between the parties and the appellant had been served with notice under section 30, of the Act before the institution of the ejectment application. It is not denied that the findings in this regard were not challenged before any competent authority. The learned Rent Controller, however after finding both the issues against the appellant, adjourned the case for determination of rent to be paid by the appellant on 11th of June 1971 to 24th of June 1971, in spite of the fact that the appellant had been pleading not only in his written statement but also in the statements made before the Rent Controller that he had not paid any rent to the respondent as there was no relationship of landlord and tenant between the parties. The respondent did not appear on the next date of hearing. Thereafter he submitted an application for amendment of his pleadings which was ultimately rejected by the Rent Controller on 9th of May 1972 and he adjourned the case to 30th of May 1972 for determination of the rent to be paid by him. He, however, on that date passed the impugned order that since the relationship of landlord and tenant had been found to be existing between the parties and the appellant had admittedly not paid any amount of rent to the respondent in respect of the property in question, therefore, he was liable to be ejected forthwith. He held that in the circumstances, there was no need to determine the amount of rent to be paid by the appellant and he, therefore, recalled his previous order, passed in this regard.
5. The present appeal has been filed challenging the validity of the Impugned order on the ground that the learned Rent Controller had no jurisdiction to recall his previous order dated 9th of May 1972 whereby the .Case was adjourned for determination of the amount of rent under section 13 (6) of the West Pakistan (Urban Rent Restriction) Ordinance, 1959.
6. It has been contended by the learned counsel for the appellant that the provision as contained in section 13 (6) of the Urban Rent Restriction ,Ordinance is mandatory and the Rent Controller is obliged under the law to determine the amount of rent to be paid by the tenant before the issues are framed and direct him to deposit the amount due from him and also to deposit regularly till final decision of the case before 15th day of each month the monthly rent due from him. It is contended that the admission of the appellant that he had not paid any rent to the respondent would not mean that no such order was obliged to be passed by the Rent Controller under the said provision. It is further contended that the alleged default or non--payment of the rent on the part of the appellant should have been inquired into by the Rent Controller as to why and under what circumstances the said default was committed. It is further contended that the impugned order amounts to review of his previous order by the Rent Controller and there being no provision for review in the Urban Rent Restriction Ordinance, the Rent Controller was not competent to recall his previous order. According to the learned counsel the impugned order is liable to be set aside on this ground alone.
7. The main question to be seen in this case is as to whether the order for determining the rent to be paid by the appellant was necessary at all to be made in view of the fact that the appellant himself had admitted that he had never paid any amount of rent to the respondent. The learned Rent Con--troller found the appellant to be the tenant of the respondent and further held that requisite notice under section 30 of the Displaced Persons (Com--pensation and Rehabilitation)
Act, 1958, was served upon him before the institution of the ejectment application After having found that the relation--ship of landlord and tenant existed between the parties and the plea of the respondent that he was not tenant of the respondent was false, how the appellant could be permitted to approbate and reprobate by holding further inquiry into the matter under section 13
(6) of the Ordinance. It was held as follows in Muhammad Ismail v. Israr Ahmad (PLD 1961 Lab. 601) : "The risk of adopt--ing a false plea of this kind by a tenant is manifest. For example, in an action for eviction for non-payment of rent the tenant will be precluded from plead--ing and leading evidence to the effect that he was not in default as the pleas that he was not a tenant under the petitioner and that he had been paying rent to him on due dates, will be mutually destructive." This case was relied upon in Mehdi Hassan v. Ghulam Muhammad etc. (PLD 1964 Lab. 648
8. My Lord the Chief Justice, Sardar Muhammad Iqbal, J. While relying upon this case held as follows;-- "I am in respectful agreement with the observation of their Lordships of the Division Bench. It, however, depends on the facts and circum--stances of each case whether further enquiry in a case is called for or not. If a respondent does not deny an allegation made against him that he had failed to pay the rent and alleges, on the other hand, that he was not a tenant of the petitioner, he, of course, cannot be permitted to plead the payment of rent after it is held by the Rent Controller that he is, in fact, the tenant. These pleas in their context will be destruc--tive of each other. He cannot be permitted to raise such pleas on the well-established principle that no person can be permitted to appropriate and reprobate.
9. The appeal filed by the tenant in the case referred to above Mehdi Hassan v. Ghulam Muhammad, etc. was however, accepted on different grounds, whether respondent, Gllulam Muhammad was also the attorney of his brother A.I Muhammad; both landlord of the property and whether the notice having been issued to the tenant before the issuance of P.T.O. In favour of the landlords, was valid, notice having been given on 10th of April 1960 while the P. T. O. In respect of the property was issued on 18th of April 1962. No such question was involved in the said case as is involved in the present one. The issue with regard to the receipt of the notice by the appellant has been decided by the Rent Controller against him and the finding in this regard has been affirmed by the learned Additional District Judge, after due appraisal of the evidence produced by the parties. This finding amounts to a finding of fact and cannot be interfered with, in the present proceedings. The arguments advanced on behalf of the appellant that the learned Rent Controller was not competent to review his previous order in view of Mohammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lah. 603, to the effect that the remedy of review cannot be available unless so provided for in the statute may not be relevant in the circumstances of the case. The main question is as to whether in the circumstances of the case, as discussed above, any such order under section 13 (6), Urban Rent Restriction Ordinance was at all necessary to be passed. I am of the view that since the appellant had admitted to have not paid any amount of rent to the respondent, therefore, after he was held to be the tenant of the respondent, no further inquiry was necessary to be made and ejectment order against him could be passed. He could not be allowed to plead differently after having pleaded that he was not the tenant of the respondent. The provisions as contained in section 13 (6) of the Ordinance applies to the tenant and not to the persons occupying the property otherwise. A person who does not acknowledge the relation--ship of landlord and tenant between the parties has no right to plead after finding in this regard against him for any further inquiry, under the said provision. He is estopped by his conduct to plead that since he has been found to be a tenant, therefore, he should be allowed to prove the payment of rent."
10. The above discussion would show that the question of review or recalling of the previous order in fact is not involved in the present case. Since whole case has been opened in the appeal therefore, it is to be seen as to what appropriate order should have been passed by the Rent Controller after deciding the above mentioned issues against the appellant. The order dated 9th of May 1972 adjourning the case for determination of the amount of rent to be paid by the appellant could not prevent the learned Rent Controller from deciding as to whether any such order in fact was necessary to be passed in the circumstances of the case. The impugned order does not amount to review of his previous order as before passing the same, he came to the conclusion that on the basis of the material on record, question of determination of rent d d not arise. It is to be noticed that the Rent Con--troller had not actually determined the rent at any stage of the proceedings. It was yet to be done by him and before passing any order in this behalf as to what was the rent to be paid under section 13 (6) of the Urban Rent Restriction Ordinance, he was within his jurisdiction to see as to whether any such order was necessary to be passed or not. In this view of the matter the argument on behalf of the appellant that the Rent Controller reviewed his previous order, has no substance.
11. Moreover even if the-amount bf rent to be paid by the appellant is determined under the said provision then what would be the effect of such determination. Is it possible for the appellant to prove that he has paid the rent to the respondent? He himself has admitted that he has not paid even a single penny as rent to him because he never acknowledged him to be his landlord. Any such order under the said provision would be a futile exercise of the jurisdiction vesting in the Rent Controller. It may further prolong the agony of unnecessary litigation but the ultimate result, will be the ejectment of the appellant for non-payment of the due rent. As such even from this aspect of the case no such order is required to be passed for the purpose of determining the amount of rent to be paid by the appellant, after his plea regarding the relationship of landlord and tenant between the parties has been rejected.
11. In the circumstances of the case, the appeal is rejected but the parties will bear their own costs.