P L D 1985 Lahore 467 (PLP)

(f) Constitution of Pakistan (1973) -- Art. 199-Constitutional jurisdiction-Exercise of-Legal error was apparent on surface of record-Such error could not be allowed to go unnoticed and un-rectified to avoid serious miscarriage of justice-Writ petition allowed in circumstances. Zafar 19ba1 Chaudhry for Petitioner. Mian Mushtaq Ahmad and Malik Khan Muhammad for Respondents. Date of hearing : 26th,March. 1985. JUDGMENT It would facilitate the appreciation of the points raised if the facts giving rise to the present petition are given in some detail. Shop bearing Survey No. 8961/1, situated in Khasra No. 8958, Depalpur Bazar, Sahiwaj, Urban Area, was owned by Syed Muhammad Raza Naqvi, Mst. Taslim Fatima, Mst. Saeeda Akhtar and Mst. Imtiaz Begum. Syed Muhammad Raza Naqvi and others brought a petition for eviction of their tenant Mian Muhammad Abdullah in the Court of Rent Controller, Sahiwal. The eviction petition was grounded on pleas that the property was required to be demolished and reconstructed plus personal bona fide need for its occupation. Ejectment order after contest was passed in favour of the landlord on 23-2-1974. An appeal was preferred against the aforesaid decision which ended in a compromise between the parties on 15-7-76 and was disposed of in terms of the eomptomise arrived at. It is not necessary to set forth the terms of the compromise. Order passed on 15-i-1976 is Annddxure A-2. The shop aforesaid was neither demolished nor reconstructed. Instead, owners orally agreed to sell the shop to the tenant for a sum of Rs. 16,

000. Rupees 4,000 were paid as earnest money. Alleged terms of the oral agreement were not fulfilled by the owners. Vide two Registered Sale Deeds dated 16-3-1982 and 25-4-1982 property in dispute was transferred to Mian Khalid Saeed against payment of price. Mian Muhammad Abdullah brought a civil suit to enforce specific performance of the alleged oral agreement in the civil Court. In the suit, he impleaded former owners and the subsequent purchaser as party defendants. In defence the existence of the oral agreement was denied. Civil suit was instituted on 17-4-1982. Till today, issues have not been settled despite an expiry of a period of over three years. Mian Khalid Saeed on the strength of the two sale-deeds in his favour applied for eviction of Mian Muhammad Abdullah, a person in occupation of the premises on the solitary ground of bona fide personal need. Ejectment petition was defended. Defence, was denial of relationship of landlord and tenant. It was further pleaded that the suit for specific performance had on the basis of oral agreement been already instituted and in the presence of the civil suit already pending ejectment petition cannot proceed. On this, and other ground, locus standi, of the owner was also questioned. It was also urged that notice under section 13-A of the Rent Ordinance intimating change of ownership was not served upon the occupant. Pleadings gave rise to the following issues : "(1) Whether petition is liable to dismissal in view of preliminary objections Nos. 1 to 8 ? O. P. R. (2) Whether the disputed shop is required in good faith by the petitioner for his own use ? O. P. A. (3) Whether there exists relationship of landlord and tenant between the parties ? O. P. A. (4) Relief." Issues Nos. 1 and 2 were struck off. Trial proceeded on issue No. 3 only. Parties produced evidence. Rent Controller found issue No. 3 in favour of the respondent and ordered ejectment forthwith without holding further inquiry into the expressed bona fide need, by his order dated 4-10-1983. Appeal filed against the order failed and was dismissed on 7-12-1983 by learned District Judge, Sahiwal.

2. Orders directing the eviction are impugned in the constitutional jurisdiction at the instance of Mian Muhammad Abdullah. Petition was admitted on 19-2-1984 and has been heard on merits today in the presence of the learned counsel for the parties.

3. The points raised in support of the petition by learned counsel for the applicant are : (i) Ejectment proceedings should have been stayed till the civil suit reeking enforcement of specific performance of oral agreement of sale was finally decided by the civil Court. (ii) Applicant was entitled to protection under section 53-A of the Transfer of Property Act, 1882 and the ejectment could not be ordered.

4. Respondents' counsel defended the impugned orders and submitted that since the applicant denied the title of the respondent which on inquiry was answered in affirmative, the Courts rightly ordered eviction. Presence of the suit for specific performance did not affect the ejectment proceedings before the Rent Controller. It was also submitted that the applicant s suit was based on false averments in regard to oral agreement of sale. Principles of section 53-A of Transfer of Property Act, 1882 enacting doctrine of part performance applied to written agreement and not oral agreement, as is the case here. As regards relationship of landlord and tenant, learned counsel contended that the evidence on record fully supported the finding and even the applicant himself admitted the relationship when he applied for deposit of rent in the Court of Rent Controller.

5. Arguments advanced have been considered. Pivotal point is whether relationship of landlord and tenant existed between the parties. It is admitted that the property in dispute prior to sale in favour of Mian Khalid Saeed belonged to Syed Muhammad Raza Naqvi and others. Admittedly applicant was in possession as tenant holding under them on payment of monthly rent. Vide registered sale-deeds, the former owners) have conveyed their title in the property to Mian Khalid Saeed. Consequently, their rights in the property came to vest in the new owner. Petitioner, in law, came to occupy the property under the new owner. Title of respondent No. 7 was also supported by the previous owners. Application for permission to deposit rent containing admission of tenancy alongwith other weighty evidence on record fully established the relationship of landlord and tenant. In the absence of contract in writing providing for cessation of relationship, protection under section 53-A was not available. Similarly, mere fact. that a suit for specific performance was instituted on the strength of some alleged oral agreement was hardly sufficient to obstruct ejectment proceedings. Till such time that a final decree was passed in the suit and on fulfillment of the terms of the decree, sale-deed executed transferring title to the plaintiff respondent remains vested with title to hold the property and was entitled to all the benefits flowing from this title. Jurisdiction of Rent Controller was riot in any manner ousted to proceed with ejectment nor were the ejectment proceedings liable to be stayed. This much as regards protection under section 53-A of the Transfer of Property Act and the Civil Suit for specific performance. Notice under section 13-A was not necessary as the ejectment was not prayed for on the ground of default in payment of rent. So, the concurrent findings of the two Courts holding relationship proved are unexceptionable.

6. The applicant/tenant has failed on the points raised. However, the matter cannot be allowed to rest here, for the reasons which immediately follow. My own examination of the impugned orders brought a serious legal infirmity to the forefront. Ejectment petition was based on the sole ground of personal bona fide need. Default was not pleaded in support of the eviction petition. Question during arguments cropped up whether Rent Controller as well as learned District Judge were competent to order eviction forthwith after they had found in favour of relationship or that further inquiry to prove. the plea of personal bona fide need was at all necessary. Learned counsel for the applicant though had neither taken this point in the constitution petition nor in his address, on reconsideration of the matter came out with the argument that further inquiry was needed and the ejectment forthwith without further inquiry could not have been ordered. Learned counsel for the respondent objected and submitted that the point was not raised in the grounds and as such cannot be urged. He also contended that the Courts below were fully competent to order ejectment without holding further inquiry as the applicant in denial of relationship had forfeited his tenancy rights and was not entitled to be heard any further in his defence.

7. It is true that the point was not urged in the constitutional petition but then it is equally true that it being a pure question of law which for its decision needed no factual inquiry could be taken up at any time. Court was equally bound to see the correct application of law to the facts presented before it. In case, party or his counsel due to some oversight/ omission fails to notice the correct legal position does it debar the Court to look to the law itself and then apply it to the facts of the case. Party is not bound to engage a counsel. The only duty that falls on party is to state facts. To apply law correctly and then to do justice in accordance therewith is the sacred duty that falls on Courts. Any omission on the part of litigant, therefore, cannot provide any obstacle to the Courts in the application of correct law. Therefore, I have decided to look into this matter and examine whether on the finding that necessary relationship of landlord and tenant existed between the parties, ejectment could have been directed without holding further inquiry into the need of the applicant to occupy the tenanted premises. Answer is in the negative. In terms of section 13 of the Rent Ordinance, 1959 a tenant in occupation of the premises can be ejected only on the grounds specified therein and not otherwise. Precedents relied upon in support of the view taken by the Courts below apply to these cases where the application for ejectment is based on ground of default in payment of rent singly or in conjunction with other grounds. In such cases, if the tenant denied relationship of landlord and tenant frivolously or contumaciously which in the result of the inquiry held was found against him and the payment of rent was not pleaded, he cannot be heard to say that further inquiry then be held. Obvious reason is that he by his own conduct has disentitled himself to any further inquiry. He cannot be permitted to approbate and reprobate to suit his convenience at different occasions. If default is pleaded and in reply relationship of landlord and tenant was denied, the tenant thereafter cannot be permitted to plead payment of rent. Therefore, the precedents relied upon by the Courts below fall in a separate and different category and do not lend support to a - case where the sole ground urged was self requirement. Unless the landlord succeeded to substantiate his plea of personal requirement by requisite evidence, the eviction order could not be passed forthwith after recording a decision on the preliminary' issue. Rent Controller, therefore, committed an error in directing forthwith ejectment without holding further inquiry. This error was not noticed by learned District Judge in appeal and it remained uncertified. This legal error floats on the surface of record and cannot be allowed to go unnoticed and uncertified to avoid serious miscarriage of justice. In the result, writ petition is allowed, impugned orders are set aside and are declared to have been passed without lawful authority. Ejectment petition is remanded to the Rent Controller for its decision afresh. He will now frame an issue on the plea of personal requirement allow the parties an opportunity to lead evidence and then decide the ejectment application in accordance with law. Since the parties have already suffered delay because of an omission on the part of the Courts, to apply the law correctly it is quite appropriate to issue a direction for early decision of this case. Rent Controller, accordingly is directed to expedite the hearing and complete its trial within four months positively. Rent Controller shall report compliance to this Court. Costs to be borne as incurred. Copy of the order be transmitted to the Rent Controller forthwith for taking further proceedings. A. A. Petition allowed. Zafar 19ba1 Chaudhry for Petitioner. Mian Mushtaq Ahmad and Malik Khan Muhammad for Respondents. Date of hearing : 26th,March. 1985. It would facilitate the appreciation of the points raised if the facts giving rise to the present petition are given in some detail. Shop bearing Survey No. 8961/1, situated in Khasra No. 8958, Depalpur Bazar, Sahiwaj, Urban Area, was owned by Syed Muhammad Raza Naqvi, Mst. Taslim Fatima, Mst. Saeeda Akhtar and Mst. Imtiaz Begum. Syed Muhammad Raza Naqvi and others brought a petition for eviction of their tenant Mian Muhammad Abdullah in the Court of Rent Controller, Sahiwal. The eviction petition was grounded on pleas that the property was required to be demolished and reconstructed plus personal bona fide need for its occupation. Ejectment order after contest was passed in favour of the landlord on 23-2-1974. An appeal was preferred against the aforesaid decision which ended in a compromise between the parties on 15-7-76 and was disposed of in terms of the eomptomise arrived at. It is not necessary to set forth the terms of the compromise. Order passed on 15-i-1976 is Annddxure A-2. The shop aforesaid was neither demolished nor reconstructed. Instead, owners orally agreed to sell the shop to the tenant for a sum of Rs. 16,

000. Rupees 4,000 were paid as earnest money. Alleged terms of the oral agreement were not fulfilled by the owners. Vide two Registered Sale Deeds dated 16-3-1982 and 25-4-1982 property in dispute was transferred to Mian Khalid Saeed against payment of price. Mian Muhammad Abdullah brought a civil suit to enforce specific performance of the alleged oral agreement in the civil Court. In the suit, he impleaded former owners and the subsequent purchaser as party defendants. In defence the existence of the oral agreement was denied. Civil suit was instituted on 17-4-1982. Till today, issues have not been settled despite an expiry of a period of over three years. Mian Khalid Saeed on the strength of the two sale-deeds in his favour applied for eviction of Mian Muhammad Abdullah, a person in occupation of the premises on the solitary ground of bona fide personal need. Ejectment petition was defended. Defence, was denial of relationship of landlord and tenant. It was further pleaded that the suit for specific performance had on the basis of oral agreement been already instituted and in the presence of the civil suit already pending ejectment petition cannot proceed. On this, and other ground, locus standi, of the owner was also questioned. It was also urged that notice under section 13-A of the Rent Ordinance intimating change of ownership was not served upon the occupant. Pleadings gave rise to the following issues : "(1) Whether petition is liable to dismissal in view of preliminary objections Nos. 1 to 8 ? O. P. R. (2) Whether the disputed shop is required in good faith by the petitioner for his own use ? O. P. A. (3) Whether there exists relationship of landlord and tenant between the parties ? O. P. A. (4) Relief." Issues Nos. 1 and 2 were struck off. Trial proceeded on issue No. 3 only. Parties produced evidence. Rent Controller found issue No. 3 in favour of the respondent and ordered ejectment forthwith without holding further inquiry into the expressed bona fide need, by his order dated 4-10-1983. Appeal filed against the order failed and was dismissed on 7-12-1983 by learned District Judge, Sahiwal.

2. Orders directing the eviction are impugned in the constitutional jurisdiction at the instance of Mian Muhammad Abdullah. Petition was admitted on 19-2-1984 and has been heard on merits today in the presence of the learned counsel for the parties.

3. The points raised in support of the petition by learned counsel for the applicant are : (i) Ejectment proceedings should have been stayed till the civil suit reeking enforcement of specific performance of oral agreement of sale was finally decided by the civil Court. (ii) Applicant was entitled to protection under section 53-A of the Transfer of Property Act, 1882 and the ejectment could not be ordered.

4. Respondents' counsel defended the impugned orders and submitted that since the applicant denied the title of the respondent which on inquiry was answered in affirmative, the Courts rightly ordered eviction. Presence of the suit for specific performance did not affect the ejectment proceedings before the Rent Controller. It was also submitted that the applicant s suit was based on false averments in regard to oral agreement of sale. Principles of section 53-A of Transfer of Property Act, 1882 enacting doctrine of part performance applied to written agreement and not oral agreement, as is the case here. As regards relationship of landlord and tenant, learned counsel contended that the evidence on record fully supported the finding and even the applicant himself admitted the relationship when he applied for deposit of rent in the Court of Rent Controller.

5. Arguments advanced have been considered. Pivotal point is whether relationship of landlord and tenant existed between the parties. It is admitted that the property in dispute prior to sale in favour of Mian Khalid Saeed belonged to Syed Muhammad Raza Naqvi and others. Admittedly applicant was in possession as tenant holding under them on payment of monthly rent. Vide registered sale-deeds, the former owners) have conveyed their title in the property to Mian Khalid Saeed. Consequently, their rights in the property came to vest in the new owner. Petitioner, in law, came to occupy the property under the new owner. Title of respondent No. 7 was also supported by the previous owners. Application for permission to deposit rent containing admission of tenancy alongwith other weighty evidence on record fully established the relationship of landlord and tenant. In the absence of contract in writing providing for cessation of relationship, protection under section 53-A was not available. Similarly, mere fact. that a suit for specific performance was instituted on the strength of some alleged oral agreement was hardly sufficient to obstruct ejectment proceedings. Till such time that a final decree was passed in the suit and on fulfillment of the terms of the decree, sale-deed executed transferring title to the plaintiff respondent remains vested with title to hold the property and was entitled to all the benefits flowing from this title. Jurisdiction of Rent Controller was riot in any manner ousted to proceed with ejectment nor were the ejectment proceedings liable to be stayed. This much as regards protection under section 53-A of the Transfer of Property Act and the Civil Suit for specific performance. Notice under section 13-A was not necessary as the ejectment was not prayed for on the ground of default in payment of rent. So, the concurrent findings of the two Courts holding relationship proved are unexceptionable.

6. The applicant/tenant has failed on the points raised. However, the matter cannot be allowed to rest here, for the reasons which immediately follow. My own examination of the impugned orders brought a serious legal infirmity to the forefront. Ejectment petition was based on the sole ground of personal bona fide need. Default was not pleaded in support of the eviction petition. Question during arguments cropped up whether Rent Controller as well as learned District Judge were competent to order eviction forthwith after they had found in favour of relationship or that further inquiry to prove. the plea of personal bona fide need was at all necessary. Learned counsel for the applicant though had neither taken this point in the constitution petition nor in his address, on reconsideration of the matter came out with the argument that further inquiry was needed and the ejectment forthwith without further inquiry could not have been ordered. Learned counsel for the respondent objected and submitted that the point was not raised in the grounds and as such cannot be urged. He also contended that the Courts below were fully competent to order ejectment without holding further inquiry as the applicant in denial of relationship had forfeited his tenancy rights and was not entitled to be heard any further in his defence.

7. It is true that the point was not urged in the constitutional petition but then it is equally true that it being a pure question of law which for its decision needed no factual inquiry could be taken up at any time. Court was equally bound to see the correct application of law to the facts presented before it. In case, party or his counsel due to some oversight/ omission fails to notice the correct legal position does it debar the Court to look to the law itself and then apply it to the facts of the case. Party is not bound to engage a counsel. The only duty that falls on party is to state facts. To apply law correctly and then to do justice in accordance therewith is the sacred duty that falls on Courts. Any omission on the part of litigant, therefore, cannot provide any obstacle to the Courts in the application of correct law. Therefore, I have decided to look into this matter and examine whether on the finding that necessary relationship of landlord and tenant existed between the parties, ejectment could have been directed without holding further inquiry into the need of the applicant to occupy the tenanted premises. Answer is in the negative. In terms of section 13 of the Rent Ordinance, 1959 a tenant in occupation of the premises can be ejected only on the grounds specified therein and not otherwise. Precedents relied upon in support of the view taken by the Courts below apply to these cases where the application for ejectment is based on ground of default in payment of rent singly or in conjunction with other grounds. In such cases, if the tenant denied relationship of landlord and tenant frivolously or contumaciously which in the result of the inquiry held was found against him and the payment of rent was not pleaded, he cannot be heard to say that further inquiry then be held. Obvious reason is that he by his own conduct has disentitled himself to any further inquiry. He cannot be permitted to approbate and reprobate to suit his convenience at different occasions. If default is pleaded and in reply relationship of landlord and tenant was denied, the tenant thereafter cannot be permitted to plead payment of rent. Therefore, the precedents relied upon by the Courts below fall in a separate and different category and do not lend support to a - case where the sole ground urged was self requirement. Unless the landlord succeeded to substantiate his plea of personal requirement by requisite evidence, the eviction order could not be passed forthwith after recording a decision on the preliminary' issue. Rent Controller, therefore, committed an error in directing forthwith ejectment without holding further inquiry. This error was not noticed by learned District Judge in appeal and it remained uncertified. This legal error floats on the surface of record and cannot be allowed to go unnoticed and uncertified to avoid serious miscarriage of justice. In the result, writ petition is allowed, impugned orders are set aside and are declared to have been passed without lawful authority. Ejectment petition is remanded to the Rent Controller for its decision afresh. He will now frame an issue on the plea of personal requirement allow the parties an opportunity to lead evidence and then decide the ejectment application in accordance with law. Since the parties have already suffered delay because of an omission on the part of the Courts, to apply the law correctly it is quite appropriate to issue a direction for early decision of this case. Rent Controller, accordingly is directed to expedite the hearing and complete its trial within four months positively. Rent Controller shall report compliance to this Court. Costs to be borne as incurred. Copy of the order be transmitted to the Rent Controller forthwith for taking further proceedings. A. A. Petition allowed.