' Mst. Safia Bibi respondent No,3, Mst. Najam-un-Nisa respondent No,4, Abdul Hameed Khan since deceased predecessor-in-interest of respondents Nos.5 to 9 and one Abdul Qadoos were the owners and the land-lords of the disputed rented land, the possession of which was delivered by them to Pakistan Burma Shell (writ petitioner) on the basis of lease deed when the writ petitioner agreed to pay an amount of Rs,700 per month to them. The construction on the land was made by the petitioner of this writ petition and Malik Abdul Majeed respondent No,10 is the dealer of the petrol under the name and style of Midway Service Station Nawan Shehr, Multan. Claiming to be the landlords of the petitioner on the disputed premises the aforesaid respondents Nos.3 to 9 filed the application for the ejectment of the petitioner under section 13 of the Urban Rent Restriction Ordinance, 1959 on the grounds that the writ petitioner was a defaulter in the matter of payment of rent and that the property was required in good faith by them for new construction of shops and flats. The said application was resisted by the writ-petitioner who admitted in para. No,1 on facts of the written reply that he was a tenant under the petitioners of the ejectment petition at the monthly rent of Rs,700. He denied the assertions of the landlords about his default in the matter of payment of rent and their bona fide requirement for reconstruction.
2. According to the pleadings of the parties following issues were framed for determination by the Rent Controller:-- ISSUES:
(1) Whether the application is not maintainable? OPR.
(2) Whether the relationship of landlord and tenant exists between the respondent and petitioners Nos. 3 to 7? OPA.
(3) Whether the respondent has not paid the rent since January, 1986, hence he is a defaulter? OPA
(4) Whether the property in dispute is required by the petitioners for new construction of shops and flats bona fidely? OPA
(5) Relief.
3. The parties produced their evidence oral, as well as documentary. Vide judgment, dated 7-2- 1994 the Rent Controller held that the relationship of landlord and tenant existed between the parties and that the writ petitioner was a defaulter in the matter of payment of rent. Issues Nos. 1 to 3 were decided in favour of the landlords while issue No,4 was decided against them.
4. During the pendency of the ejectment petition Malik Abdul Majeed respondent No,10 of this writ petition filed an application under Order 1, Rule 10, C.P.C. To be impleaded as a party on the ground that he was interested in the decision of the ejectment petition being in physical possession of the same. However, that application was dismissed by the Rent Controller on 21-3-1993 after placing the reliance on Qutabuddin Ahmad Khan v. Mst. Zohra Musarat Amin and another (1981 CLC Lahore 212) wherein it has been held that intervener having physical possession of property through respondentCompany/tenant would be automatically ejected in case the ejectment order is passed against the respondent-Company. Malik Abdul Majeed has not taken any legal steps thereafter questioning the aforesaid order, dated 21-3-1993 who has, however, supported this writ petition before this Court.
5.. I have heard the learned counsel for the parties and gone through the record before me.
6. Learned counsel for the writ petitioner argued that the petitioner was in possession of the rented land on the basis of lease deed and a perusal of the same would make out that the same is not a rent note. According to him the writ petitioner is a licensee and not a tenant under the respondents Nos.3 to 9 of this writ petition so as to make competent the Rent Controller to hear the ejectment petition. In this regard he referred to different portions of the aforesaid lease agreement. I am afraid this assertion is not available to the writ petitioner in view of the pleadings of the parties. The landlords claimed the writ petitioner as a tenant under them at the monthly rent of Rs,700 in para. 1 of the ejectment petition which fact was admitted by the writ petitioner in relevant para. 1 of the written reply. This being the position the writ petitioner cannot be allowed to argue this aspect of the matter. According to Abdul Hafeez and another v. Muzaffar Karim PLD 1973 Kar. 253 a judgment cannot be based upon a plea which is not raised in the plaint. Yet another aspect of the matter cannot be lost sight of. According to Nisar Ahmad and another v. District Judge, Muzaffargarh and another (1984 SCMR 317 (Supreme Court of Pakistan), relied upon by the learned counsel for respondents Nos.3 to 9 the findings of the Rent Controller and the Appellate Authority about the existence of the relationship of landlord and tenant were not open to scrutiny or reversal in writ petition. In consequence I hold that the relationship of landlord and tenant exists between the parties. At this stage I have to express my mind that there was no justification to form issue No,2 about the existence of relationship of landlords and tenant between the petitioners of the ejectment petition and the respondent. The pleadings of the parties have to play the legal role. This assertion of the learned counsel for the writ petitioner has no legal force.
7. The next contention of the learned counsel for the writ petitioner is that all the landlords have not filed the ejectment petition as some legal representatives of Abdul Qadoos have not been impleaded as the party in the ejectment petition. There is no weight in this assertion. It is the admitted position that respondents Nos.3 to 9 have their joint ownership in the disputed rented land. It has been held in Moosa Bhai v. Yousuf and another 1981 CLC 3241 (Karachi) that any co- sharer of property can file rent application and that the plea that application by one co-sharer is not maintainable had no substance. It has been held in 1981 SCMR 193 that any co-owner can file rent application. In another case published as Mst. Safia v. Abdus Sattar PLD 1983 Kar. 419 the same view has been followed. Thus his objection about the non-maintainability of the application cannot be sustained on the authority of the aforesaid rulings relied upon by the learned counsel for respondents Nos.3 to 9.
8. After making a perusal of the record it can safely be expressed that the writ petitioner is a defaulter in the matter of payment of rent. According to lease agreement which has to be considered as rent note in the instant matter in view of my aforesaid findings, the amount of rent in the sum of Rs,700 per month was to be paid by the writ petitioner/tenant to the landlords after the expiry of the relevant month. However, the following material would project the tender of amount of rent by the tenant/writ petitioner:---
(i) Vide Exh.R-1 the rent for the month of January, 1986 was deposited on 11-7-1987.
(ii) According to Exh.R-2 the rent for the month of January, 1986 was deposited on 7-4-1986.
(iii) According to Exh.R-10 the rent for the months of July to December, 1991 was deposited on 7-11- 1991.
(iv) According to Exh.R-11 the rent for the months of January to June, 1992 was deposited on 24-6- 1992.
(v) According to Mark-A the rent for the months of January to December, 1990 was deposited during the month of August, 1990.
(vi) According to Mark-B the rent from January to June, 1991 was deposited during the month of April, 1991.
9. As rightly pointed out by the learned counsel for the respondents Nos.3 to 9/landlords under section 13(2)(i) of the Urban Rent Restriction Ordinance. 1959 the tenant was liable to tender the rent within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlords.
A perusal of the aforesaid material has made out that on many occasions the amount of rent has been tendered/deposited after the lapse of sufficient time provided by the statute. The contention of the learned counsel for the writ petitioner is that the judgment is illegal as section 5-A of the Urban Rent Restriction Ordinance, 1959 is not applicable. On the basis of my aforesaid reasoning and findings the writ petitioner has defaulted towards the tender of the amount of rent on many occasions and in consequence such a default can easily be termed as intentional whereby the writ petitioner cannot escape his liability for the purpose of his ejectment.
10. For what has been said above, the writ petitioner has no case. He is an intentional defaulter in the matter of payment of rent and both the learned lower Courts have correctly passed the order of his ejectment.
11. Finding no force in this writ petition, I dismiss the same with costs. The writ petitioner/tenant is granted a period of 40 (forty) days from today to hand over the vacant possession of the disputed premises, in the light of the terms of the rent note, to the landlords failing which the ejectment order shall be executable through the Agency of the Rent Controller concerned. Obviously Malik Abdul Majeed respondent No,10 is also liable to be ejected along with whole of his parapharnalia.