RANA BHAGWAN DAS, J.---These appeals with the leave of this Court are directed against identical judgment, dated 18-2-1998 in F.R.As. Nos.641 of 1994, 25 of 1995, 680 of 1994 and 681 of 1994, by learned Sindh High Court directing ejectment of the appellants from the disputed premises on the ground of default and personal requirement by the landlords i,e, respondents Nos.1 to 3.
2. Respondents Nos.1 to 3 filed ejectment applications against the appellants on the ground of default in payment of rent since acquisition of title to property from the previous owner i,e, respondents Jamiluddin (since dead and survived by his legal heirs). All the appellants filed separate written statements admitting to be the tenants in the demised premises with the assertion that in fact Jamiluddin was the owner and landlord of the premises to whom they were paying rent regularly and that respondents Nos.1 to 3 had no locus standi to seek their ejectment.
On such assertion Jamiluddin moved an application under Order 1, rule 10, C.P.C. For his impleadment and was joined as co-respondent in all the rent cases. In his written statement this respondent claimed to be the owner and landlord of the premises and entitled to receive rent from the appellants. As the defence of respondents No to 3 was founded on a registered conveyance deed, dated 4-11-1976 executed bythe said Jamiluddin, this respondent in his written statement denied the execution of any sale deed in favour of respondents Nos.1 to 3 and pleaded that the sale deed, if any, was forged and fabricated.
3. Both the parties adduced evidence on the issues of relationship between the parties and whether respondents Nos.1 to 3 required the premises bona fide for thier own use and occupation: Upon consideration of the relevant evidence, the Rent Controller held that respondents Nos.1 to 3 were the landlords and entitled to receive rent and maintain ejectment applications against the appellants. In the rent cases against appellants Abdul Hameed and Abdul Aziz, learned Rent Controller allowed the ejectment on the ground of personal requirement but he dismissed all the cases on the ground of default. Decision of the Rent Controller was assailed by both parties in the aforesaid Pirst Rent Appeals in which learned High Court allowed the F.R.As. Filed by respondents Abdul Aziz and Syed Muhammad Yousuf whereas F.R.As. Preferred by appellants Abdul Hamid and Abdul Aziz were dismissed. Finding on the issue relating to relationship of landlord and tenant between the appellants and respondents Nos.1 to 3 was maintained and remained intact.
4. Leave to appeal was granted to examine the question relating to relationship of landlord and tenant as well as the fact of the appellants having not been cross-examined by respondents Nos.1 and 3 though respondent Najeebuddin son of the late Jamiluddin was subjected to cross- examination.
5. The circumstances which found favour heavily with the Rent Controller as well as the learned High Court non-suiting late Jamiluddin rival landlord in the rent cases appears to be the factum of dismissal of Suit No,1656 of 1987 brought by Jamiluddin against respondents Nos.1 to 3 in the High Court of Sindh for declaration, permanent injunction and cancellation of sale-deed allegedly executed by him. It may be observed that this suit was dismissed for non-prosecution on or about 27-4-1988 and no steps were taken for its revival. At this juncture it may also be pertinent to note that respondent Jamiluddin had filed a common written statement in all the four rent cases on or about 22-4-1990 and he died a natural death in January, 1992.
6. We have heard Messrs Muhammad Ashraf Bhatti, Kazi Abdur Rahim and Syed Shafaat Hussain learned counsel for the parties at quite some length and carefully examined the record with their assistance.
7. Learned counsel for the appellants mainly contended that the dismissal of a suit for cancellation of registered sale deed filed by late Jamiluddin and not pursued would not, per se, operate as res judicata since issue of title was neither finally heard nor decided by a competent Court of law.
There appears to be no cavil with this proposition as admittedly the suit was not finally decided on merits nevertheless, the dismissal order/judgment attained finality in the eye of law since no steps were taken by the deceased plaintiff though alive till January, 1992. Indeed he was fully conscious of the issue relating to title having been raised in the ejectment proceedings launched by respondents Nos.1 to 3 against the appellants. Mr. Muhammad Ashraf Bhatti, Advocate Supreme Court learned counsel for the appellants attempted to persuade us to believe that the deceased could not take steps for the reasons firstly that he had no notice of dismissal of the suit and secondly he was not keeping well after the dismissal of his suit. Both the grounds do not appear to be tenable as a party who knocks the door of the Court is expected to be diligent and vigilant to keep a track of the proceedings and not to wait for notice of the Court. In any event, no notice of dismissal of a cause is issued by the Court and in case the deceased plaintiff was kept in dark by his counsel it is a matter between a client and the counsel which benefit cannot be extended to the disadvantage of the opposite-party. Adverting to the second ground, suffice it to say that Jamiluddin was fully conscious of his rights and obligations inasmuch as on gaining knowledge of the ejectment proceedings in relation to the property claimed by him he opted to join such proceedings as one of the respondents and filed a detailed parawise written statement agitating his right and title to the property. If that be so, it can hardly be believed that he could not take steps for revival of his suit on the ground of his so-called ailment.
8. It was next, contended by Mr. Muhammad Ashraf Bhatti that despite serious challenge to the right, title and interest of respondents Nos.1 to 3 they miserably failed to establish their title to the property as they could not produce original title deeds including the registered conveyance deed in spite of specific direction by the Rent Controller on an application moved by the appellants.
Although this order has not been produced before the High Court nor included in the paper book a reference to it was made during the course of arguments tending to show that the Rent Controller on 18-7-1991 had directed the respondent to produce the original title documents within four days.
According to Mr. Shafaat Hussain and duly supported by Mr. Bhatti the documents were not produced before the Rent Controller meaning thereby that the plea taken by respondent Jamiluddin that the sale-deed relied upon by respondents Nos.1 to 3 was forged and fabricated stood substantiated. As this was entirely a new plea not taken in the memo. Of petition for leave to appeal, learned counsel for the respondents Nos.1 to 3 was taken aback but coincidentally hearing of the appeals could not conclude on the earlier date of hearing with the consequence that it was adjourned for today. Today Mr. Abdur Rahim Kazi, learned counsel for respondents Nos.1 to 3 has been able to lay hands on certified copies of the record from the lower Court and after his contact with the respondents on the basis of recordstated that after purchase of the property from respondent No,4, respondents Nos.1 to 3 had deposited original title documents with Habib Bank Limited, Cloth Market Branch against a loan facility. He further pointed out that a statement to this effect was filed alongwith a copy of the certificate from Habib Bank Limited in support of the statement before the lower Court on 24-7-1991 which was ordered to be filed by the Rent Controller.
He has produced a certified copy of such statement and the bank certificate duly certified by copying agency of the High Court Sindh tending to show that even a copy of this statement was delivered to the advocate for the opponent, now appellant, on or about 3-9-1991. Indeed there is an endorsement to this effect on such statement. For our satisfaction he had also produced original documents consisting of search certificates issued by Sub-Registrar Division-V, Karachi, dated 8- 6-1980, two other search certificates, dated 24-10-1998 issued by Sub-Registrar, "T", Division and Sub-Registrar, Central Record, Karachi, certifying that there was a conveyance deed executed by Mr. Jamiluddin son of Ghaniuddin, in favour of Syed Abdul Qadir, Syed Muhammad Yousuf and Abdul Razzak, all sons of Muhammad Mian, vide Register No,5556 at pages 68 to 75 in Volume No,727 of Book No,1, Addl. Dated 4-11-1976, a certificate, dated 23-10-1998 issued by Habib Bank Limited, Cloth Market Branch, certifying that M/s. Baroda Corporation was allowed finance limit against Property No,OT-3, Survey No,149 situated at Old Town Quarters, Karachi and that the said property had been released by the Bank as liability had been adjusted by the party, original letter of guarantee bearing special adhesive stamp purportedly signed by three respondents, valuation certificate, dated 5-2-1980 purportedly issued by S. Sultan Hussain & Co., extract from the Property Register of Karachi District, Karachi, reflecting the transfer of property in favour of respondents Nos.1 to 3 for Rs,40,000 vide R.D. No,5556, dated 4-11-1976 and ACSO order, dated 13-1-1977, extract from Form PT-I Register showing the ownership of the property in the name of aforesaid respondents, Permanent Transfer Deed in favour of Jamiluddin son of Ghaniuddin having purchased property in an open auction vide PTO No,15708, dated 21-3-1962, original registered sale-deed purportedly executed by Jamiluddin son of Ghaniuddin dated 4-11-1976 registered in the office of Sub-Registrar "T" Division-I, Karachi, along with a map and plan of the property in question signed by Architect and Engineer indicating boundaries and measurements of the property in dispute. By producing original documents and certified copies of the record at this stage, the impression created on behalf of the appellants and respondent No,4 to the effect that the title to the property was in controversy and required to be decided by a competent Court of law as declared by this Court in Rehmatullah v. Ali Muhammad (1983 SCM R 1064) stands dispelled. Even otherwise in the said case decided by two Honourable Judges of this Court title to the property was disputed by the tenant on the premise that he had agreed to purchase the property from the landlord. Mr. Muhammad Ashraf Bhatti heavily relied upon observations made in Rehmatullah's case (supra) at page 1079 which read as under:-- "What is permissible for Courts of general jurisdiction in the field of fairplay, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy in a Civil Court, first and then again approach to the Controller. Even when the tenant has not succeeded before the Controller to create the required 'reasonable' doubt but has convinced him that his plea is not frivolous and/or vexatious, but due to constraint of summary/speedy. Procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same."
9. Rehamtullah's case (supra) as well as Pervaiz Akhtar v. Dr. Muhammad Ahsan (PLD 1988 SC 734) were referred and considered in the subsequent case reported as Muhammad Ishaq v. S. Khurshid Alam (PLD 1989 SC 353) with the following observations:-- "In the case of Rehamtullah v. Ali Muhammad 1983 SCM R 1064 to which reference has been made in the order granting leave, it has been observed at page 1079 as follows:-- 'That the requirement of the relevant law contained in the Rent Restriction Ordinance is that the Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his possession as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking ejectment.' These observations though very weighty, have no application to the facts of this case as the tenancy of the house by the tenant was admitted in his written statement. The title to the property has been established by the production of registered gift deed."
10. It is pertinent to note that as noticed in Muhammad Ishaq's case (supra) observations in the case of Rehmatullah are not attracted in the circumstances of the case in hand in which the appellants admitted to be the tenants in the premises ownership whereof changed hands through a registered conveyance deed which though challenged was not taken to its logical conclusion.
The ratio in Pervaiz Akhtar's case appears to be that once a tenant is served with a notice of change of ownership and a demand for payment of rent in terms of section 18 of the Sindh Rented Premises Ordinance, it is incumbent upon him to pay rent to the new landlord and not to embark upon an inquiry to find out whether he had acquired a valid right and title to the property. In the case in hand though the appellants had been duly served with the notice under section 18 of the Ordinance they did not respond to it and wrongly continued to pay rent to Jamiluddin without realising the legal consequences after the change of ownership. It may well be that the learned Rent Controller in the exercise of his authority under the provisions of the Ordinance could not finally adjudicate the question of title to the property but he can always decide the question as to who is the landlord in respect of the tenanted premises, entitled to receive rent and to seek ejectment of the tenant. In this view of the matter and fresh suit on the question of title and ownership to the property on the same cause of action appearing to be barred by the provisions of Order IX, Rule 9, C.P.C., we are of the considered view that this is not an appropriate case in which a direction should be given to the aggrieved person to seek a declaration of title from the Court of law.
11. In our view neither the Rent Controller nor the learned High Court committed any illegality nor failed to exercise jurisdiction vested in them by not adopting the course suggested in Rehmatullah's case in the peculiar facts and circumstances of this case irrespective of the circumstance that original title documents were not produced before the Rent Controller for the reasons explained at the bar. Since a new plea was raised on behalf of the appellants themselves we have thought it fit and proper to consider the original documents produced for our perusal today in the open Court. Confronted with this situation, appellants have failed to make out any case for our interference in the exercise of Constitutional jurisdiction. In fact there are concurrent findings of fact on the question of relationship of landlord and tenant. Needless to observe, relationship of landlord and tenant having been established the appellants failed in their duty to pay rent due to the respondents Nos.1 to 3 and thereby committed a deliberate and wilful default.
Their ejectment from the premises was thus rightly allowed and does not admit of any other view.
12. For the aforesaid facts and reasons, these appeals fail and are hereby dismissed with no order as to costs. However, appellants are allowed 120 days to vacate the premises subject to payment of rent and other charges.