Validity/propriety, of two orders passed by learned Rent Controller Lahore, dated 15-11-1994 and order passed by learned Appellate Court, dated 19-3-1996, is called in question in this petition.
2. Material facts, to be noted, are few and uncontested. These are: that on 19-5-1992 Muhammad Saleem and 7 others/respondents herein/landlords, moved an application under section 13 of Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter called as Ordinance of 1959) against Maula Bakhsh/petitioner seeking his eviction from the rented Property bearing No,S52-R-54 situated at Nisbat Road, Lahore. It was averred therein that respondents were the owners of the rented property which had been transferred to them by PTD No,846613 on 19-8-1996; that there was some dispute between the petitioner and one Mst. Bushra Bibi; that said dispute was resolved by the Supreme Court on 26-6-1988 finally wherein respondents were adjudged as transferee of the rented premises; that respondents had issued a notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called as Act of 1958) to petitioner on 20- 8-1979 and also gave a notice under section 13-A of Urban Rent Restriction Ordinance, 1959 to him on 23-10-1988. This was done when Supreme Court finally resolved the dispute between the respondents and Mst. Bushra Bibi; that petitioner did not wilfully pay the rent to respondents from November, 1976 to December 1988; that rented property was required by respondents for their bona fide personal use.
3. This ejectment petition was resisted. Petitioner, in written reply, took up the plea that there never existed relationship of landlord and tenant between the parties; that petitioner had been in occupation of rented premises since the Partition and had never paid any rent to any one including respondents. On these pleas, the preliminary issue, with regard to relationship of landlord and tenant, was framed. The respondents produced Meer Yaqub A.W.1, Sharif A.W.2 and Muhammad Yousaf/general attorney as A.W.3, petitioner examined Faujdar Khan (R.W.1), Mukhtar Ahmad (R.W.2) and Maula Bakhsh (R.W.3). Respondents tendered in evidence P.T.D. and the decision of the Supreme Court. On the assessment of evidence, so produced by the parties, learned Rent Controller found that relationship of landlord and tenant existed between the parties and so allowed the application straightaway without further proceedings under the provisions of section 13 of Ordinance of 1959. This conclusion was rendered in following terms:--- "From the evidence on record, it is clear that the respondent is not the owner of the property in question. Exh.A/3 shows that the property in question was transferred on 19-8-1966 in the name of the petitioners' father. Exh.A/6 shows that the Honorable Supreme Court of Pakistan had accepted the appeal of the petitioners on the basis of a compromise (Exh.A/4) as a result of which the property (of which the disputed property is a part) was partitioned between the petitioners and the successors-in-interest of Mst. Bushra. It is not disputed by the respondent that the petitioner and the legal heir of Mst. Bushra are the co-owners of Property No,S-52-R-54, Nisbat Road on the basis of the aforementioned judgment of the Honorable Supreme Court of Pakistan. His contention is that since the said property has not been physically partitioned in-between the petitioner and the legal heirs of Mst. Bushra, therefore, it cannot be ascertained as to whether the disputed property which is a part of the aforementioned property has gone to the lot of the petitioners, therefore, the petitioners are not his landlords. This contention of the respondent is also not helpful to him because in case, the abovereferred property is not partitioned between the petitioners and the legal heirs of Bushra that they shall be deemed to be the co-owners of the property in question and a co-owners falls within the definition of a landlord as he is entitled to receive rent. Admittedly, the respondent is in possession of the property in question and admittedly the property is not owned by him, hence he is bound to pay rent to the owners of the property because a person in possession of premises owned by someone else in bound to pay rent to him as consideration for being in possession or occupation of these premises and such a person is to be treated as a tenant. Reliance is placed on 1992 MLD (Karachi) 223.
In view of what has been discussed above, I hold that the relationship of a landlord and tenant exists between the parties. The issue is decided in favour of the petitioner."
On appeal, learned Appellate Authority concurred with above conclusions. This is how this Constitution petition has come to this Court.
4. Learned counsel for petitioner, in support of this petition, raised two points: Firstly, he relied upon Muhammad Shah v. Mst. Bibi Sakhian etc. (PLD 1990 Lah. 48) and Syed Anwar Ali v. Syed Habib Hussain (1991 MLD 945) and M/s. Khawaja Auto Cars Ltd. v. Muhammad Yousaf etc. (1991 SCMR 2223) to contend that petitioner had never paid any rent to respondents from the time of Partition up to this time and so the learned two forums below had erred in law in saying that relationship between the parties existed. According to learned counsel, Urban Rent Restriction Ordinance, 1959 envisaged the creation of tenancy by two means i,e,, by operation of law or by contract. In the case in hand, the relationship of landlord and tenant between the parties was neither by operation of law nor by contract. Secondly, that the learned Rent Controller had no jurisdiction to allow application without framing issue as to whether petitioner was a wilful defaulter and rented premises was needed by respondents for personal use in good faith. On the contrary, learned counsel for respondents supported the impugned decision by relying upon section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 and section 13-A of Punjab Urban Rent Restriction Ordinance, 1959. It was contended that petitioner was occupying the rented premises at the time of Partition and so he became tenant of petitioner when the rented premises was transferred to respondents. Reliance was placed on Major (Retd.) Muhammad Yousaf v. Mehraj Din etc. (1986 SCMR 751) and Malik Safdar Hussain v. Lutuf Ahmad Khan (1997 SCMR 567). Secondly, it was suggested that plea of petitioner was manifestly contumacious and, so learned two forums below correctly applied the principle of forfeiture of tenancy to the facts of the case in hand.
5. I have heard the learned counsel for parties at considerable length, perused the record of the case and attended to their rival contentions. As regards first contention it is hardly necessary to note that section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is pertinent. It reads as under:---
(1) Where any person is in possession of any evacuee house, or shop, or has been declared on or before the 20th day of December, 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August, 1947, in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then, notwithstanding anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer: Provided that--- (a)it shall not be lawful for the transferee to charge a rent on the basis of the latest assessment carried out by the municipality or local authority, as the case may be for other properties in the locality generally; and (b)it shall not be lawful for the transferee to eject such persons from the house or shop for period of six years and from the industrial concern, cinema house or printing press for a period of 3 years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgement due).
(2) Where the transferee does not give notice within one month, as required by proviso (b) to subsection (1), the period mentioned in that proviso shall count from the date of receipt of such notice by the tenant.
(3) Nothing in proviso (b) to subsection (1) shall apply to the tenant--- (i)who has not within 3 months from the date of receipt of a notice demand sent to him by the transferee by Registered Post (acknowledgement due) paid or tendered the amount of rent or arrears of rent due for any period after the transfer; or (ii)who after the transfer, has subject or otherwise parted with the possession of the house or shop, industrial concern, cinema house or printing press, or any part thereof, or has committed acts which are destructive of or injurious to the property nor shall anything therein apply to the tenant of any house or shop, in any urban area within the same town or city, owns a house or shop, as the case may be.
(4) On the expiry of the period mentioned in proviso (b) to subsection (1) or on the contravention of any of the provisions of subsection (3), whichever is earlier, the relationship of landlord and tenant between the transferee and the tenant shall be regulated in accordance with the law for the time being in force relating to such relationship."
A bare reading of this section shows that a person, who is in possession of an evacuee house or shop etc., becomes tenant of transferee on account of deeming expression. Effect of section 30 of the Act, 1958 was examined by apex Court in celebrated case/E.A. Even's case (PLD 1964 SC 536). It was held therein:--- "It will be observed that the provisions of the said section are to apply notwithstanding anything contained in any other law' and ' without prejudice to any other right' which a person in possession of an evacuee house may have in that house, shop etc. and under them he is to 'be deemed to be a tenant of transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer.' It would, thus, appear that this section by its own force created a statutory tenancy in favour of such persons who were in occupation of evacuee premises at the time of their transfer. This statutory tenancy was to be in addition to any other right which they may have in such premises but upon the same terms and conditions upon which they occupied the premises before their transfer. Proviso (b) to subsection (1) further fixes the date from which the statutory tenancy is to commence; namely, where a notice of the transfer has been served on the tenant by the transferee within one month of such transfer by registered post (acknowledgement due) then the tenancy commences from the date of the transfer but under subsection (2) where no such notice is served, then from the date of the receipt of such notice by the tenant. The service of the notice, is, therefore, not merely a formality for acquaint in the tenant of the transfer of the premises nor merely in the nature of a notice of attornment, but it is designed to fix the terminus a quo of the period of protection."
The aforesaid view was follows by erstwhile West Pakistan High Court in Muhammad Rizwan v.
Ashiq Ali (1966 (W.P.) Quetta 11). After analysis of section 30, this lordship Justice Noorul Arifin summed up his conclusion in the following terms:--- "(i) On transfer of a property, the tenant or the occupant is to be deemed to be the tenant of the transferee.
(ii) Such tenant or occupant cannot be ejected for a period of six years in the case of a house or a shop or for a period of three years in the case of an industrial concern, cinema house or printing press.
(iii) Such tenant or occupant loses this protection if--- (a)he fails to pay the amount of rent or arrears of rent within three months from the date of receipt of the notice of demand sent by the transferee which notice is different from the notice of transfer required to be given under proviso (b) of section 30(1) of the Act: (b)He, after the transfer of the property to the transferee, has sublet or otherwise parted with the possession of the house or shop, etc., or any part thereof, or has committed acts which are destructive of or injurious to the property.
(iv) On cessation of this protection the relationship between the transferee and the tenant is to be regulated in accordance with the law applicable to landlords and tenants."
The same opinion was expressed in Ghulam Rasool v. Ch. Din Muhammad (PLD 1967 Lah. 665), Muhammad Moosa etc. v. Shabbir Ahmad etc. (1984 CLC 3227) and Khuda Dad Khan v.
Muhammad Abdul Hannan and others (1980 CLC 500). ' The view taken in E.A. Even's case (supra) was reiterated in Messrs Khawaja Auto Cars Limited v. Muhammad Yousaf (1991 SCMR 2223).
6. Ratio, deducible from the aforesaid examination, is an under:--- (i)On the transfer of an evacuee property, the tenant or its occupant becomes tenant of the transferee by deeming expression embodied in section 30 of Act, 1958; that the occupant/tenant in the transferred property becomes tenant of transferee by operation of law.
(ii)Such tenants or occupants cannot be ejected for a period of six years in the case of house or shop and for a period of three years in the case of industrial concern, cinema house or printing press.
(iii)(a) Such tenant or occupant loses this protection if he fails to pay amount of rent or arrears of the rent within three months from the date of receipt of notice under section 30(1) of Act, 1958.
(b) The tenant/occupant, after the transfer of property, sublets or otherwise parted with the possession of the house or shop or any part thereof or commits any act which diminishes the value of the property.
(iv)On the expiry of protection, relationship between the transferee and tenant is to be regulated by law applicable to such relationship.
7. Applying the above rules, to the facts of the case in hand, it is quite clear that property in dispute was evacuee property; that it was transferred to respondents as back as 19-8-1966; that respondents issued notice to petitioner under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 on 20-8-1979; that the dispute between the respondents and Mst.
Bushra, in which neither petitioner was a party nor he had any concern, was decided by the Supreme Court on 26-6-1988. From the above resume of the case, I am in no manner of doubt that the petitioner became tenant to respondent under section 30 of the Act of 1958. In view of this, I find that the finding of two forums below on preliminary question is manifestly correct, just and does not suffer from any legal or jurisdictional defect. Authorities cited by learned counsel for petitioner are on dissimilar fact and are not applicable to the facts and circumstances of the case in hand.
8. Now I turn to second contention. It is well-settled that where relationship of landlord and tenant is contumaciously denied, it is not necessary to take any further proceedings under section 13 of the Ordinance as defendant admits default in payment of rent without any reason. See Commissioner of Income Tax, Lahore v. Muhammad Umar Saihgal (PLD 1975 Lah. 1558), Abdul Khaliq Qureshi v. Saeed Hussain Shah (1979 CLC 118), Makhan Bani v. Haji Abdul Ghani (PLD 1984 SC 17), Muhammad Anwar and 6 others v. Mst. Balqees Bagum (1984 CLC 1506), Muhammad Ismail v.
Israr Ahmad (PLD 1961 Lahore 601), Mehdi Hassan v. Ghulam Muhammad (PLD 1964 Lahore 648), Syed Muhammad Ikram Shah v. Ch. Ghulam Nabi (PLD 1967 Lahore 957), Ghulam Rasool v. Ch. Din Muhammad (PLD 1967 Lah. 665), Muhammad Hussain v. Muhammad Bashir (PLJ 1974 Lahore 423), Nisar Ahmad v. Nazar Muhammad (PLJ 1974 Lahore 505), Muhammad v. Naseer Ahmad (PLD 1976 Lah. 1078), Noorud Din and another v. Muhammad Qasam (PLD 1976 Karachi 921), Sikandar Khan v.
Muhammad Ameen (PLJ 1979 Kar. 62), Amroze Khan v. Arbab Muhammad Ghalib (PLD 1980 Pesh.
163), Feroze Khan v. Mst. Meraj Begum (PLD 1982 Lah. 332), Muhammad Iqbal v. Ata Ullah Nisar (1984 CLC 454), Ishrat Hussain and another v. Subedar alias Suba (1975 SCMR 19), Aman Ullah Khan v.
Chotey Khan (1978 SCMR 14), Muhammad Yousaf v. Khalifa Asghar Hussain (1980 SCMR 886) and Hafiz Abdul Majid v. Muhammad Younas (1992 MLD 82).
9. Guided by the above rule, I find that petitioner was occupant of rented premises at the time of Partition; that rented premises was transferred to respondents in 1966 and PTD No,846613 was issued to them on 19-8-1966; that there arose a dispute between one Mst. Bushra and respondents; that the petitioner took the benefit of that dispute and neither paid rent to Mst. Bushra Bibi nor to the respondents; that petitioner did receive the notice under section 30 of the Act of 1958 on 20-8- 1979 but did not mend his ways did not pay rent to transferee; that the apex Court of this country determined the controversy between Mst. Bushra Bibi and respondent on 23-10-1988 and adjudged them as valid transferees that the respondents again issued a notice to him under section 13-A of the Urban Rent Restriction Ordinance, 1959 on 23-10-1988, but still petitioner did not pay a penny of rent of respondents; that all these circumstances were not controverted by the petitiorer in his written statement or anywhere else. Amazingly enough, the petitioner contended that he was neither tenant of Mst. Bushra Bibi nor of respondents nor was liable to pay any rent to any side whatsoever. This is a height of contumaciousness. On the above analysis, I have no option but to hold that the two forums below had correctly applied the equitable rule of forfeiture of tenancy to the facts of case in hand and were correct in saying that there was no necessity to hold further proceedings to determine as to whether petitioner was a wilful defaulter or not. In view of the above, I have no hesitation in coming to conclusion that decisions rendered by the two forums below are unexceptionable. As a result of the above discussion, this petition is found to be totally devoid of any merit and is hereby dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.