This is a second appeal under section 15(6) of the Punjab Urban Rent Restriction Ordinance, 1959 from the order of Rent Controller, Gujrat, dated 21-10-1996, which was affirmed in appeal by the learned Additional District Judge, Gujrat on 29-7-1997.
2. The appeal arises out of an application under section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959, filed by Raja Rustam Ali and others, respondents herein, against the appellants alleging therein that initially the shop in possession of appellant No. l was owned by their mother Mst. Mussarat Sultana who had rented out the same vide rent note, dated 6-11-1977 at the rate of Rs.250 per month. The property including the disputed shop was gifted by Mst. Mussarat Sultana in favour of respondents on 15-2-1990. As the building was in dilapidated condition so respondents decided to reconstruct the same and for that purpose got a plan sanctioned from Municipal Committee, Gujrat. They approached the respondents for handing over the vacant possession for the purpose of reconstruction but they refused to accede to their request. It was further asserted that appellant No.1 had sublet the shop to appellant No.2 without their consent. They asked the appellants to vacate the possession, but as their request was not accepted, hence the respondents were constrained to file this ejectment application.
3. The application was resisted by the appellants who raised various preliminary objections. It was asserted that Mst. Mussarat Sultana was the owner of the shop and she had been accepting rent personally as well as through her sons. It was further asserted that no notice regarding change of ownership was ever served upon them. The other contentions of the respondents were denied and it was prayed that petition be dismissed.
4. From the divergent pleadings of the parties, the trial Court framed the following issues:------
(1) Whether relationship of landlord and tenant exists between the parties? O. P. A.
(2) Relief.
5. In support of their stand one of the applicants/respondents Raja Shujat Ali examined himself as A.W.1 and examined Abdul Waheed as A.W.2. Their learned counsel produced documents Exhs.A-1 to A-10 and thereafter closed their evidence. In rebuttal, one of the tenants/appellants Abdur Rashid examined himself as R.W.1 and brought on record the statement of Saeed Muzammal as R.W.2. Thereafter, their learned counsel closed their evidence. The learned Rent Controller vide order, dated 21-10-1996 held that appellants were tenants in respect of the premises under the respondents. The Rent Controller after answering the issue against the appellants, proceeded to direct their eviction from the shop in question without holding any further enquiry as he was of the view that the denial of tenancy being contumacious, it was not necessary to frame the issues on merits.
6. The appellants challenged that order by filing appeal before the learned District Judge, Gujrat which appeal was dismissed vide order, dated 29-7-1997. Hence the instant second appeal from order.
7. Arguments have been heard and record perused.
8. Contention of the learned counsel for the appellants is that admittedly disputed property belonged to Mst. Mussarat Sultana, mother of respondents who rented out the same to the appellants vide rent note, dated 6-11-1977 at the rate of Rs.250 per month. Instant application has been filed by applicants/ respondents claiming themselves to have acquired the said property by way of gift from their mother Mst. Mussarat Sultana. He contends that according to section 13-A, Punjab Rent Restriction Ordinance, 1959, it was incumbent upon the applicants/respondents to inform in writing by registered post regarding change of ownership whereas no such intimation is ever given to them, as such the very petition was not maintainable. He next contended that even if it is assumed for the sake of argument that notice under section 13-A, Punjab Rent Restriction Ordinance was not necessary, even then the mere fact that relationship of landlord and tenant proved to have existed between the parties, does not automatically culminate into forfeiture of tenancy. He contended that after answering the issue regarding relationship of landlord and tenant in affirmative, it was incumbent upon the Rent Controller to hold further enquiry to come to the conclusion, if the property in question, was required in good faith for reconstruction as alleged by the applicants/respondents in their ejectment application. An order of ejectment without holding an inquiry into the allegation of requiring property for reconstruction was wholly uncalled for and relied upon Muhammad Riaz Chughtai v. Mst. Irshad Begum 1993 MLD 707 and Muhammad Hussain v. Muhammad Siddique and 2 others PLD 1988 SC 731. He thus, submitted that impugned orders have not been passed in accordance with law as such appeal may be accepted and case may be remanded with the direction to hold an inquiry into the allegation of requiring property for reconstruction and then to decide the matter in accordance with law.
9. Mr. Uzair Karamat Bhandari, Advocate, learned counsel for the respondents has defended the impugned orders.
10. From the perusal of evidence on record it appears that shop in question was originally owned by Mst. Mussarat Sultana and was rented out to the tenants/appellants which fact is evidenced by the Rent Note, dated 6-11-1977. It is, however, asserted by the applicants/respondents that they became owner of the property in 1992 as a result of oral gift executed in their favour on 15-2-1990.
Admittedly no notice regarding transfer of ownership in favour of applicants/respondents was ever given to the tenants/appellants. It was mandatory on the part of the applicants/respondents to give such notice as required by section 13-A, Punjab Rent Restriction Ordinance, which reads as follows:-- Section 13-A. Tenant to be informed in case of transfer of ownership Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purpose of clause (i) of subsection (2) of section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him.
11. A bare reading of section 13-A, supra clearly reveals that it was mandatory on the part of applicants/respondents to send an intimation of such transfer in writing by registered post to the tenants/appellants. However, it has no effect on maintainability of ejectment petition on grounds other than that of default in payment of rent. Admittedly, ejectment in the instant case, has not been sought on the ground of default. Thus, no notice under section 13-A ibid was necessary and has got any bearing on the maintainability of instant petition. Reliance is placed upon Sabu Mal v.
Kika Ram alias Heman Das 1973 SCMR 185. Even if it is assumed that no notice under section 13-A was required even then could the findings of the trial Court, culminate into forfeiture of tenancy.
The answer is in negative, as held in Muhammad Hussain v. Muhammad Siddique and 2 others PLD 1988 SC 731 and Muhammad Riaz Chughtai v. Mst. Irshad Begum 1993 MLD 707. The ejectment has been sought on the ground of reconstruction of the property as well as subletting.
Unless and until an inquiry had been made into the allegations that property was required for reconstruction etc., order of ejectment could not be passed merely on the finding that relationship of landlord and tenant did exist between the parties.
12. Learned counsel for the appellants has relied upon the authorities of the Supreme Court of Pakistan in Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17 and Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1 to contend that the principle that the tenant forfeits his tenancy by denial of title of his landlord, is not applicable to proceedings under the Rent Restriction Laws.
13. This argument is unexceptionable in view of the pronouncement of the Supreme Court in the above-cited cases. It cannot be laid down as principle of universal applicability that in all cases where denial of tenancy is found to be false, an order of ejectment must necessarily follow without holding any further proceedings. The question as to whether after the decision of the preliminary issue as to the existence of relationship of landlord and tenant between the parties, further inquiry into the grounds on which ejectment of the tenant is sought/called for depends upon the facts of each case. If in the written statement filed by the tenant, he not only denies the title of the landlord to the property but also denies his entitlement to receive the rent without pleading the payment of rent, holding of further inquiry would be an exercise in futility. The present case, however, stands on a different footing. In the written statement filed by the appellants it was specifically asserted that Mst. Mussarat Sultana was their landlord and it was she who had been accepting rent herself as well as through her sons. The appellants have brought on record receipts regarding the payment of rent up to 1994. If the disputed shop had been gifted out in favour of respondents on 15-2-1990, why she had been accepting rent of the same shop till 1994. The acceptance of rent by Mst.
Mussarat Sultana even after the alleged gift in favour of her sons shows that she still claimed herself to be landlord of the said property. As there was no ground of default of payment on which ejectment has been sought and the ejectment has been sought only on the ground of reconstruction, so even if the trial Court had come to the conclusion that relationship of landlord and tenant existed between the parties, it could not forfeit the tenancy and order the ejectment forthwith. It was incumbent upon the trial Court to hold inquiry if the disputed shop was required for reconstruction and had been rented out by appellant No.1 to appellant No.2 as claimed by respondents. This has not been done, as such the impugned orders, dated 21-10-1996 and 29-7- 1997 of the trial Court as well as of the Appellate Court are not warranted by law.
14. Learned counsel for respondents has cited 1973 SCMR 185 on the point of notice and has asserted that notice under section 13-A of Punjab Rent Restriction Ordinance was not necessary and mere institution of rent petition should be deemed to be a notice. A bare perusal of language of section 13-A ibid reveals that it has no bearing in the instant case as the said notice is only relevant when ejectment is sought on the ground of default. Thus, the service of notice under section 13-A in the instant case is immaterial and petition cannot be dismissed on that score, as ejectment has not been sought on the ground of default. He has also referred to Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24 on the same point. In this authority the ground of ejectment was default whereas this is not the case in hand. He has also submitted that since the appellants failed to pay rent and denied the title of the respondents so the Courts below were justified in passing impugned orders and relied upon Malik Safdar Hussain v. Lutaf Ahmad Khan and others 1997 SCMR 567. The facts in said authority are that an agreement had been executed between the parties for the payment of rent and even then the tenant defaulted and denied the title of the landlord. Thus, the said authority is not applicable to the facts in hand. Learned counsel for respondents has also relied upon Muhammad Yousaf and another v. Nizamuddin Malik PLD 1993 Lah. 101, to contend that under similar circumstances ejectment order had been passed. A perusal of this authority evinces that ejectment had been ordered on the ground of default whereas no such ground has been urged in the instant case. Thus, the authorities relied upon do not come to the rescue of the respondents.
15. As a result of what has been stated above, the appeal is accepted, the impugned orders are set aside and the case is remanded to the Rent Controller for decision afresh after framing the issues on merits and allowing the parties to adduce evidence.