MIAN GHULAM AHMAD, J.- Shamim Akhtar and Ghulam Mustafa, son and daughter of Sher Muhammad, filed, on 14-9-1991, an eviction petition against Faiz Ahmad and Abdul Hamid, occupants of house No.3338/R-H, Ward No.8, Muslim Chowk, Mohallah Faridabad, Multan City, treating them to be their tenants, the rate of rent being Rs.400/- permensem. The petition was contested by the respondent before the Rent Controller. They denied subsistence of tenancy between the parties, pleading that from Sher Muhammad (father of the petitioners before the Rent Controller), Abdul Hamid (respondent) had purchased the property through agreement of sale dated 30-10-77, and the purchaser had demolished the existing structure and re-built the house by spending an amount of Rs.60,000/-. The respondent there took up the plea of even adverse possession, having been in occupation and enjoyment of the premises for a period exceeding l2 years, without making payment of rent.
2. Issues were recorded on 19-10-91, and the parties led evidence in January, March and May, 1992.
In the course of statement of Abdul Hamid above-named, he made an offer that if Ghulam Mustafa, one of the petitioners before the Rent Controller was prepared to say that the former had ever tendered any rent, the ejectment application be accepted. This offer was welcomed by Ghulam Mustafa, who made a statement that he had been approaching the occupants of the house for payment of rent, but they had not fulfilled his demand. The learned Rent Controller (Mr.Ijaz Hassan Awan), there-upon, allowed the ejectment application, directing to occupants to vacate the premises and hand over possession in thereof to the owners landlords, within a month.
The order was passed on 16-5-92. The occupants filed an appeal, but the same was dismissed on 7-7-92, by Mr.Ghulam Abbas, Additional District Judge,Multan. One of occupants, Faiz Ahmad, who was a co-respondent (alongwith Abdul Hamid), before the Rent Controller, has filed this writ petition, with a prayer that the aforesaid orders passed by the Rent Controller and the appellate forum be set aside and execution of the impugned orders be suspended. According to the petitioner, the offer made by his .o-respondent (before the Rent Controller), Abdul Hamid, was defective, and in any case the statement made by Ghulam Mustafa, claiming to be a landlord, was not in accord with the offer made for settlement of the dispute on special oath. It is also submitted that the evidence of the petitioner before the Rent Controller had been concluded and even Abdul Hamid respondent there had made his statement and the proceedings were coming to close. That warranted that the matter should have been decided on merits, rather than on special oath.
According to Faiz Ahmad petitioner, he and Abdul Hamid had spent a huge amount of Rs.60,000/- on arising construction at the disputed place and they had been in occupation of the premises ever since 1964, and the agreement of sale, entered into between Abdul Hamid and Sher Mohammad, warranted specific performance, for which they It. Abdul Hamid and Faiz Ahmad propose to go in for a civil action.
3. Manifestly, however, the afore-said averments would be irrelevant, when Abdul Hamid (respondent before the Rent Controller) had voluntarily made an offer for resolution of the controversy between the parties on oath. But another plea advanced by Faiz Ahmad petitioner has apparently some force. He was not a party to the offer made on 16-5-92 by the co-occupant, Abdul Hamid. There also, however, it is to be pointed out that, the learned counsel for the parties were present alright on 16-5-92, when offer and acceptance were recorded by the Rent Controller; and, impliedly, Faiz Ahmad, whom the same counsel represented, was not averse to the proposed arrangement. Such a plea, in a similar situation, did not find favour at all with the august Supreme Court, in the case, Mohamamd Fazil etc. Vs. Sugfira Bibi, reported as PLD 1991 SCM R 1371. Learned counsel for both the respondent before the Rent Controller was not absent at the relevant time, nor did he oppose the move; and it would be assumed that he had consented to the offer made by Abdul Hamid, one of the respondents, there.
4. Yet another contention put forth by the petitioner that the offer made by Abdul Hameed could not be acted upon, as he had done so without proper advice, is equally devoid of force. It has already been said that the learned counsel for Abdul Hamid and Faiz Ahmad (respondents before the Rent Controller), being present on the occasion, it could not be urged by them, nor even by one of them, that Abdul Hamid, who had made the offer, had not the assistance of his counsel, or else was duped in any manner. It is another matter that the learned counsel did not specifically prevent Abdul Hamid from making the proposal, or he did not whisper into his ears or put into his mouth, suggesting something so as to make him withdraw the proposal, there and then, thus putting him on a wrong track and adopting a course of crookedness, as is generally done.
5. But there is certainly some force in the only contention that has, in a vague manner, been advanced, at the end. I have myself adverted to it, in right earnest. These were the relevant portions of the Rent Controller's orders, as also the statements in question (in vernacular):- ((Urdu Words))- -; ~ ca f&'/t J'jS ./ >/ j'...... I/.^ 2- {jkl' ift'i j j, ft U b1 jf c-* ^ i- f Jf ^ U* * m z y -n U M ^ l 'n#tbsFaiz Ahmad V Ghulain Mustafa (Mian Ghulain Ahmad, J)#tbe16 51992 ^ it
6. The above statement by Ghulain Mustafa appears to have not been made in strict confirmity with the proposal placed by Abdul Hamid. If one goes literally by the words spoken by Abdul Hamid, at least as the same have been recorded by the learned Rent Controller, there will be little room for inferring that the statement made by Ghulam Mustafa on special oath had been made in deviation or derogation of the offer made by Abdul Hamid. A court of law however has to do justice between the parties and is not supposed to discharge its functions in an arithmetical or a mechanical manner. A much too technical and rigid an approach, in a situation like this, would verily defeat and not advance the ends of justice.
7. Ghulam Mustafa did not state, having made a claim (on 16-5-92), in express terms, to be a landlord, and only said that he had been going to the respondents (before the Rent Controller) with a demand for payment of rent, but they had never paid him any rent (as obviously they had never accepted him to be the landlord). He did not say that the occupants, on being approached by him, had put forth any other excuse for non-payment of rent, as, for instance, paucity of funds, or inability or disability on their part in any other form. From Ghulam Mustafa's own statement it amply transpires that the occupants had never treated him, as also his sister, Shamim Akhtar, to be the owners landlords. How could it be assumed, considered from any angle, that the occupants of the house, who had admittedly never made payment of rent, would incur the risk of their instantaneous eviction from the house, as defaulters, by throwing an open offer to the petitioners before the Rent Controller, or one of them, to make just a brief statement to the effect that demand in that regard had been made and not met, and that was enough for making them liable to immediate ouster. Statement made by Abdul Hamid, one of the occupants, on 16-5-92, obviously was vaguely worded. Previous part of the statement was to the effect that Ghulam Mustafa should come forward to state on oath that they (the occupants) had ever tendered rent (and in that event claim of the petitioners before the R.C. Be accepted and ouster of the occupants be ordered). The next phrase is to the effect that if the petitioners (before the R.C.) had ever made stet for the rent and the occupants had ever paid any rent, there would be no objection (on the part of the latter)to acceptance of the ejectment application (by the Rent Controller).
8. Word' (or), occurring in that sentence has not to be loosely and aimlessly interpreted, it, in, fact has meaning of (and). Payment of rent by the occupants could not be divorced from the demand for the same made by the landlords. Two situations were inter-dependent and co-relative.
Acceptance of liability, absolute and immediate, made in such a forth-right fashion by the occupants, was obviously dependent on their default in payment of rent, despite their explicit or implied admission of being tenants under the petitioners before the Rent Controller), and it was not an unconditional readiness to quit, in the manner of charity or by way of magnanimity. What was being suggested to Ghulam Mustafa by Abdul Hamid was that the former should state that the latter had at any time paid to him any rent, meaning thereby that if Abdul Hamid, or Faiz Ahmad co-occupant, had never tendered rent, it would amount to acknowledgement on their part of their status of being tenants, under the petitioners (before the R.C.), Ghulam Mustafa and Shamim Akhtar.
9. It would indeed make no sense, if in either of the two eventualities, Abdul Hameed was making an offer of their exit from the premises, even in the event of Ghulam Mustafa having ever approached them with an abstract demand for payment of rent. Making a demand (for anything) by a person is obviously an act confined to him alone. How can it bind the other or expose him to any kind of liability, unless apparently he is a party to it, leaving aside his pretentious denial of the same, made in an ostensibly untruthful manner? Right it receive rent might have only been a wish or desire on the part of Ghulam Mustafa, but even if the same had manifested itself in practical form, that would, at best, make him a self- styled landlord,1 and his sister Shamim Akhtar a landlady, with an assertion of entitlement incharge rent from the occupants. How could such a unilateral act of one party render the other side, involved in the affair, subject to any liability, unless and until the latter was privy or party to such an act, imparting to it bilateral colour of contractual nature? Realistic and sensible, and not a whimsical and illogical, exposition of the statement in question, will alone therefore serve the ends of justice.
10. I would not see eye to eye with the view-point of the courts below and would conclude that it was not an offer made in the manner, as has rigidly, narrowly or unimaginatively been construed.
Merely because Ghulam Mustafa treated himself to be an owner landlord, or fell like making a move for recovery of rent, would not really make him the landlord, and render the occupants of the house to be the tenants. To make the parties abide by such an arrangement, they must first be made to understand the terms and import thereof, in clear terms. Confident as Abdul Hamid appeared to be, about non-existence of tenancy, he visibly wanted to have the issue resolved through special oath, and he did make an offer in that behalf, but the same was not sensibly carried through. The impugned orders have so vividly flown from a misconstruction of the statements made by the parties to the litigation, in the nature of an open but objective offer and illusory or an mis-conceived acceptance; and can neither be acted upon, nor permitted to hold the field. The writ petition therefore succeeds, and is allowed, but with no order as to costs.
11. Case shall be decided on merits; and for the purpose it is remanded to the learned Rent Controller (Mr Ijaz Hussain Awan), before whom it shall be put up for further proceedings on 4-4- 1993.