1. ' SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is directed against the judgment of a learned Judge in Chambers of High Court of Baluchistan, Quetta, dated 1-10-1989 dismissing the rent appeal of the appellants against the order of eviction passed by the Rent Controller.
2. ' The relevant facts of the case are that the respondent instituted an ejectment case against the appellant in respect of House No,5-13/447-S situated in Hasan Colony, Jan Muhammad Road, Quetta (hereinafter to be called the 'suit property') on the allegation that the appellant failed to pay or tender rent of the demised premises for the period from December 1981 to September 1982, at the rate of Rs,100 per month and from October 1982 to January 1984 at the rate of Rs,275 per month. It was further alleged in the application that the total amount of rent outstanding against the appellant for the period ending January, 1984 worked out to be Rs,5,400 and towards payment of these dues the appellant issued two cheques dated 20-2-1984 and 20-3-1984 in the sum of Rs,2,000 and Rs,3,400 respectively. The cheque in the sum of Rs,2,000 was honored while the cheque for Rs,3,400 when presented to the Bank for encashment was dishonored. That the respondent when approached the appellant for payment of amount of Rs,3,400 and the future rent for February and March 1984, the appellant refused to make payment of the same. The appellant in his written statement raised the plea that the demised premises was let out to him by the owners Malik Hassan Kansi and that after the death of said Malik Hassan Kansi, the widow of the deceased owner was receiving the rent from him and it was accordingly, contended that the respondent had no locus standi to file the present application for ejectment of the appellant. It may be mentioned here that it is an admitted position in the case that the land on which the demised premises is constructed belonged to deceased Malik Hassan Kansi. The case of the respondent before the Rent Controller was that this land was leased out to him by the said Malik Hassan Kansi and that he was regularly paying rent for the land to said Malik Hassan Kansi during his lifetime and after his death to his L.Rs, He further claimed that the appellant was inducted into the premises by him after completion of the superstructure on the land. The Rent Controller on basis of the controversy between the parties framed the following issues:-- "(1) Whether there exists relationship of landlord and tenant between the parties?
(2) Whether notice under section 13-A is served upon the respondent?
(3) Whether the respondent has committed default in payment of rent from February, 1983 up to March, 1984? (Wrongly written as '1986 to 1984').
(4) Relief ?"
3. ' Nos. 1 to 3 mentioned above were taken up together and in light of the evidence produced by the parties the Rent Controller came to the conclusion that the appellant was defaultei in payment of rent and relationship of landlord and tenant existed between the parties. He accordingly, ordered eviction of the appellant from the suit property. On appeal, the learned Judge in Chambers agreed with the conclusion of the Rent Controller and dismissed the appeal filed by the appellant with these observations:-- "6. I have perused the entire evidence on record and the documents. From ExhA/1 it is proved that Muhammad Sadiq paid rent of the house to Allah Dad. ExhsA/3, A/4, A/5, A/6 and A/7 are challans which were deposited in the name of the landlord Allah Dad by Muhammad Sadiq as rent of the said house. Taking into consideration this documentary evidence it can conveniently be Concluded that there exists relationship of landlord and tenant between the parties.
7. The order of Rent Controller on the issue is based on sound reasonings in which he has dilated upon the issue in a detailed and exhaustive manner. In the circumstances I see no reason to disagree with the conclusions so drawn by the Rent Controller. I see no force in this appeal which is hereby dismissed with no order as to costs. The tenant shall hand over the vacant possession after two months of passing of this order to the landlord Allah Dad."
4. Leave was granted in the above case by this Court to consider the following contention:-- "Be that as it may, the questions involved in this case are of first impression. With a view to determine: whether, there existed relationship of landlord and tenant between the parties; whether in view of complicated question of law and fact involved in resolving this controversy the default in payment of rent could be treated as wilful default so as to penalize the petitioner for having disputed such relationship; and thus, whether in case need arises, discretion should not be exercised in favour of the petitioner. All these questions require examination. Accordingly, this petition is converted into appeal. It shall be fixed for final hearing and disposal during next session.
5. Security Rs,5,000."
6. ' The learned counsel for the appellant contended before us that the learned Judge in Chambers while dismissing appeal of the appellant failed to take into consideration that the appellant had moved an application for further enquiry but this application of the appellant was totally ignored by the learned Judge in Chambers while disposing of the appeal. It is further contended by the learned counsel for the appellant that in the facts and circumstances of the case, the Rent Controller ought to have directed the appellant to get his alleged title to the property in the first instance established through a Civil Court. In support of his contention, the learned counsel for the appellant has placed reliance on the following cases:--
(1) Muhammad Aslam v. Wazir Muhammad (PLD 1985 SC 46).
(2) Rehmatullah v. All Muhammad (1983 SCM R 1064).
7. ' As stated earlier, the admitted position in the case is that the plot of land, on which the demised premises had been constructed, was owned by one Malik Hassan Kansi. The case of the respondent before the Rent Controller was that said Malik Hassan Kansi had rented out the said land to him with permission to raise construction on the land and to let out the same to the tenant.
8. It was alleged by the respondent before the Rent Controller that he was regularly paying rent to the said Malik Hassan Kansi during his lifetime and after his death to the legal heirs through their attorney and that after constructing the premises he had let out the suit property initially to the appellant at the rate of Rs,100 per month which was subsequently enhanced to Rs,275 per month.
9. The appellant in his written statement filed before the Rent Controller, in reply to the eviction application, took up the position that Malik Hassan Kansi was the landlord of the property and after his death his widow is the landlady and that the suit property was let out to him by the original landlord. It was asserted in the written statement that the respondent was appointed by the landlord to collect the rent of the property on his behalf and, therefore, he was not the landlord of the suit property. It was also claimed that after the death of Malik Hassan Kansi, the respondent had no right to receive the rent. It was additionally contended that the rent was being collected by the respondent in lump sum for various periods together and it was not payable monthly. It was also asserted that the last installment of collected rent was remitted to respondent by money order but the same was returned by the post office with the endorsement that the respondent was not available at Quetta. He also claimed that on 26-4-1984 while the appellant was in Karachi he was directed by the landlady to make payment direct to her. It was admitted in the paragraph 2 of the written statement that the rent of the suit property was originally Rs,100 per month which was enhanced to Rs,275 per month. As against the above pleas raised in the written statement, the appellant when appeared in Court, took a totally different stand and stated that the two cheques given by him to the respondent amounting to Rs,2,000 and Rs,3,400 were not towards the payment of the rent but they were actually towards the payment of price of milk which the respondent had supplied to the appellant.
10. ' The respondent in order to prove that appellant was his tenant besides examining himself, examined Zahoor Ahmed, nephew of deceased Malik Muhammad Hassan Kansi, who categorically stated that the land underneath the house which belonged to his uncle Malik Muhammad Hassan Kansi, was given on lease to the respondent who had constructed the superstructure and let out the same to the appellant in 1982. He also stated that after death of Malik Muhammad Hassan he has been recovering the rent of the suit property from the respondent at the rate of Rs,50 per month. With regard to two cheques in the sum of Rs,2,000 and Rs,3,400, he stated that in his presence Councilor Muhammad Zaman had brought about an agreement between the appellant and respondent with regard to dispute of rent in respect of the suit property and Exh.P.1 which is a receipt of amount of Rs3,400 paid by the appellant to the respondent through two cheques amounting to Rs,2,000 and Rs3,400, was executed and that the amount mentioned in the receipt Exh.P-A/1 was paid towards rent of the suit property. In cross-examination he stated that the widow of the deceased Malik Muhammad Hassan resides at Karachi and that he was holding a general power of attorney on her behalf to collect rent of the properties belonging to her. He also stated that the land was leased out by Malik Muhammad Hassan to the respondent in the year 1962 although he was not present at the time when the lease was given by the deceased to the respondent. According to this witness deceased Malik Muhammad Hassan died in 1976. Muham.T ad ,7,aman, Councillor, who was said to have brought about the compromise between the appellant and respondent in respect of the rent was also examined as A.W.11. This witness in his statement stated that Exh. A/1 was written in his presence which he wrote himself and he identified his signature on it. He also stated that at the time Exh.PA./1 was written, Malik Zahoor (A.W.1) was present and both the parties namely, appellant and respondent, were also present. He also stated that on Exh.PA./1 besides him, the appellant and respondent, Zahoor A.W.I also signed. In cross- examination he stated that he had brought about the compromise between the parties and in pursuance of that compromise receipt ExhA/1 was written. He also stated that he was informed by the respondent that one of the cheques given by the appellant was encashed while the other was not encashed. The respondent in his statement before the Rent Controller also reiterated the facts which he alleged in his ejectment application. A.W. III Iiaz Muhammad son of Peer Bakhsh, Naib Nazir of Civil Court, Quetta, produced before the Rent Controller Challan No,3327 dated 14-1-1979 (ExhA./3), Challan No,3328 dated 14-1-1979 (Exh. A/4), Challan No,3329 dated 14-1-1979) (Exh. A/5) and Challan No,3330 dated 14-1-1979 (Exh. A/6). This witness stated that total amount paid under the above 4 Challans was Rs,1,600 which was deposited by the appellant towards the rent from April 1979 to October 1979 in favour of the respondent. He further stated that under Challan No,4176 dated 27-11-1978 (ExhA/7), the appellant deposited another sum of Rs,5,000 in favour of respondent Allah Dad towards rent of the suit property. Apart from these witnesses, the appellant produced one Ahmed Nawaz from United Bank Limited who testified before the Court that the cheque for Rs,3,400 issued by the appellant in favour of respondent was dishonoured. Tufail Hussain son of Jamait Ali (AW.IV) appeared in Court and stated that he and his late father had constructed the house which was the subject-matter of the application at the instance of respondent. He also stated that at the instance of respondent he had carried out maintenance work and for which he was duly paid by the respondent. We may mention here that the plea taken by the appellant that the two cheques issued to the respondent in the sum of Rs,2,000 and Rs,3,400 respectively were paid towards the payment of price of milk supplied by him was not at all taken/raised in the written statement filed by him. In the cross-examination of the respondent it was suggested that he was authorised to collect rent of the suit property by late Malik Muhammad Hassan in consideration of milk which he used to supply to him. This plea was also never raised or urged by the appellant in his written statement. It is very significant that no suggestion was given to the respondent when he was in witness-box, in the cross-examination that the two cheques. In the sum of Rs,2,000 and Rs,3.4J0 were issued to him as the cost of the milk which the respondent had supple to the appellant. In the absence of cross-examination of respondent on this particular point and the absence of such a plea in the written statement, the statement made by the appellant when examined before the Rent Controller after close of evidence of the respondent in the case, in which he for the first time claimed that the amount of Rs,2,000 And Pc Etna wag nairl temvarric not of milk umnlied by the recnnnclent was clearly an improvement and was rightly not believed by the Rent Controller and the learned Judge in Chambers. It is also significant that after death of late Muhammad Hassan who was only the owner of land beneath the house in dispute the appellant on more than one occasion deposited rent in Court in the name of respondent. In view of this documentary as well as oral evidence in the case, the conclusion reached by the Rent Controller that the relationship of landlord and tenant existed between the parties, was unexceptionable and was rightly confirmed in appeal by the learned Judge in Chambers.
11. The next question for consideration in the case is, whether the default in the circumstances of the case, could be said to be not a willful default so as to call for exercise of discretion in favor of the appellant. The appellant first of all denied the relationship of landlord and tenant between the parties and at the same time he took the plea that the rent was being collected by the respondent in lump sum and as such there was no willful default in payment of rent. The two pleas besides being inconsistent, the evidence on record did not establish at all that the rent was not payable every month. The deposit of rent by the appellant in Court before filing of rent case was of different amount. Similarly, the two cheques issued by the appellant to the respondent towards arrears of rent were for Rs,2000 and Rs,3,400. The above evidence, therefore, did not prove any consistent practice of payment of rent at specified intervals so as to lead the conclusion that the rent was not payable every month. It was not disputed before the Rent Controller or before the learned Judge in Chambers that after the cheque for Rs,3,400 was dishonored, no payment was made to the respondent towards rent of the suit property and therefore, the Rent Controller as well as learned Judge in Chambers rightly reached the conclusion that the default committed by the appellant was wilful and the order of ejectment was unexceptionable.
12. ' The learned counsel for the appellant very vehemently contended that before the learned Judge in Chambers the appellant had filed an application for further enquiry which was not attended to by the learned Judge while dismissing the appeal. It is an admitted position in the case that the rent application was instituted in 1984 while according to application which the appellant filed for further enquiry before the learned Judge in Chambers, the appellant wanted to produce a document dated 9-7-1989 according to which he had allegedly purchased the disputed property from its owner. We would refrain from making any observation with regard to alleged sale dated 9- 7-1989 of the demised premises to the appellant as we are told that the matter is already before the Civil Court in respect of the sale. Suffice it to say that even on basis of the, evidence and the contention raised by the appellant before the Rent Controller, the respondent was fully covered within the definition of landlord and as such it was not necessary to go into the question of alleged title acquired by the appellant through the sale dated 9-7-1989. The learned Judge in Chambers duly referred to this contention of the appellant but rightly declined to go into it for the reason that this document even if genuine was of 1989, while ejectment application was filed in 1984 and therefore, it was not at all necessary to go into this question, in view of the evidence on record, for deciding the controversy before him.
13. ' The learned counsel for the appellant has relied on Muhammad Aslam v. Wazir Muhammad (PLD 1985 SC 46) in support of his contention that in the changed circumstances of the case, the order of ejectment against his client was not called for. We have already referred to the evidence recorded before the Rent Controller in the case and find that in the cross-examination of the applicant and his witness no suggestion was made that the appellant had purchased the property from the owner. It is an admitted position that the document which purported to be a sale of the property in favour of the appellant was allegedly executed by widow of the deceased after the order of eviction was passed by the Rent Controller in the case on 24-6-1989. The evidence recorded before the Rent Controller clearly established that the respondent was leased out the land underneath the house by its owner deceased Malik Hassan Kansi. There is nothing on the record to show that the lease of land granted to respondent was either cancelled by the deceased owner or by his legal heirs. The structure on the demised land, according to evidence on record was raised by the respondent. Therefore, in these circumstances even if the appellant claims to have purchased the land from the heirs of the deceased Malik Hassan, it would not change/alter existing relationship of landlord and tenant which was established on the basis of evidence led before the Rent Controller by the parties. The case cited by the learned counsel is, therefore, of no assistance. The learned counsel also placed reliance on the case Rehmatullah v. Ali Muhammad (1983 SCM R 1064) and contended that in the facts and circumstances of the case, the parties should have been directed to have recourse to the Civil Court instead of deciding the matter by the Rent Controller. No such hard and fast rule was laid in the case of Rehmatullah v. All Muhammad, supra. It depends entirely on the circumstances of each case, whether the Rent Controller should decide the plea of existence of relationship of landlord and tenant between the parties in a case before him, or the parties be directed to have recourse to the Civil Court in the first instance to get an adjudication with regard to their title to the property. In the case before us, we find that there was overwhelmingly documentary and oral evidence, which established the relationship of landlord and tenant between the parties. In these circumstances, no exception could be taken to the orders passed by the Courts below. There is no merit in the appeal which is, accordingly, dismissed. There will be no order as to costs in the circumstances of the case.