1982 PLP 1871 (CLC)

C. M. A. 2943/81 is an application filed by the respondent/landlady praying that this Court may order the appellant/tenant to deposit the arrears of rent and electricity charges in respect of the flat in question and also future monthly rent at the rate of Rs. 220 per month and electricity charges at Rs. 50 per month with effect from September, 1981 till the final disposal of the above appeal. The respondent has sought for an order for deposit of Rs. 12,840 (as per details given in the application) by the appellant for the arrears of rent and electricity charges for the period from 1‑7‑1977 'to 31‑8‑1981 and as observed earlier, a request has also been made for an order directing the appellant to deposit future rent at the rate of Rs. 220 per month and electricity charges at Rs. 50 per month from September, 1981. Briefly the facts are that in respect of the premises in question Rent Case No. 246 of 1978 was filed by, the respondent/landlady against the appellant /tenant before the Rent Controller, Hyderabad, seeking eject ment of the respondent on the grounds of default as well as personal use. In this Rent Case, reference was made to a tenancy agreement executed between the parties and it was alleged that the appellant had defaulted in the payment of rent of the premises in question since July, 1977. In the Written Statement, no specific plea was taken by the appel lent denying the relationship of landlady and tenant between the parties. It was admitted that the tenancy agreements dated 29‑7.1974 and 30‑9‑1976 were executed between the parties and as regards the allegation in para. 5 of the Rent Application that the appellant had not paid the rent, the reply of the appellant in his Written Statement was as follows :‑ That para. 5 of the application is denied. The opponent has com muted no default in the payment of rent or electric charges to the applicant." It may, however, be added that in para I of the written statement, the appellant had stated that the respondent had not filed any document of title in respect of the property in question, and that to the knowledge of the appellant. the premises in question was an evacuee trust property. This position was taken in para. 1 of the Written Statement on account of the notice dated 5‑7‑1978 received by the appellant as well as the other occupants of the property from the Assistant Administrator, Eva cuee Trust Property. Hyderabad Region that the property in question was a religious trust property and required the occupants to appear in the office of the Assistant Administrator and produce the documents to prove their entitlement over the property. During the pendency of the aforesaid Rent Case, an order dated 7‑8‑1979 was passed by the Chairman Evacuee Trust Property Board, Government of Pakistan, Lahore, holding that the property was an evacuee trust property and that its transfer by the Settlement Department to one Muhammad Ahmad and one Abdul Rashid (from ‑whom the pro perty had been acquired by the respondent) was illegal and the action of the Settlement Department transferring the said property was set aside and the P. T. Ds. were cancelled. In the last paragraph of the order of the Chairman Evacuee Trust Property Board, dated 7‑1‑1979, it was stated as follows :‑ "Muhammad Ahmad and Mst. Nasima (the respondent) will be the. tenants of the Board and shall pay rent to the Board. As Mst. Nasima has raised new super structures at the site, she will pay ground rent to the Board. The cost of debris of the old building will also he recovered from her. The cost of the debris and the rent to be charged from Muhammad Ahmad and Mst. Nasima shay be determined by the Administrator Evacuee Trust Property, Southern Zone, Karachi." In view of this order dated 7‑8‑1979 an objection was raised by the appellant that the Rent Controller had no jurisdiction and that the Rent Case filed by the respondent was not maintainable. By his order dated 16‑9‑1980, the Rent Controller, not agreeing with the contention raised on behalf of the appellant, passed the tentative order for deposit of rent from July, 1977 to August, 1980 before the 10th of December, 1980 and be also ordered deposit of future rent, commencing from September, 1980, on or before the 10th of each month. However, it was ordered by the Rent Controller that the respondent will not be allowed to withdraw any amount deposited by the appellant. It may be mentioned here that a Revision was filed by the respondent against the said order dated 7‑8‑1979 of the Chairman, Evacuee Trust Property Board, before the Government of Pakistan, which Revision is pending and a status quo order has been passed in that Revision Application. The appellant defaulted in the compliance of the order dated 16‑9‑1980 of the Rent Controller as he did not deposit the arrears ordered to be deposited. He, however, deposited 3 amounts of Rs. 200 each in October, November and December, 1980. In the circumstances an application under section 16 (2) of the 1979 Rent Ordinance was moved by the respondent which was granted by the Rent Controller by his order dated 29.4‑1981 striking of the defence of the appellant. The respondent having been declared not to be the owner of the property in question and, therefore not entitled to any rent. It was further contended that relationship of landlady and tenant had to be determined first by the Rent Controller which was not determined by him anti no issue was framed. In the circumstances, it was urged by the learned counsel for the appellant that this application may not be granted and till such time the appeal is finally disposed of, the appellant may not be burdened with an order for the deposit of rent, On the other hand, Mr. S. Masood Ali, learned counsel for the respondent has contended that in his Written Statement, the tenancy was admitted by the appellant and it has also been admitted that the tenancy agreement was entered into between the parties, and, therefore, the appellant has admitted the relationship of landlady and tenant between the parties, and in any case even according to the order of the Chair man, Evacuee Trust Property Board, Government of Pakistan, Lahore, dated 7‑8‑1979, the superstructure has been held to belong to the respondent and it is in respect of the superstructure that the tenancy between the parties exists and further that the respondent has been accep ted as a tenant by the Evacuee Trust Property Board. In these circum stances, coupled with the fact that the Revision filed by the respondent has been admitted and status quo has been ordered by the Government of Pakistan, it was contended by Mr. S. Masood Ali learned counsel for respondent, that the application for deposit of the rent may be granted; One of the main contentions of the learned counsel for the respondent was that the appellant was estopped from challenging the relationship of landlady and tenant between the parties. Learned counsel for the res pondent relied upon P I_ D 1967 Lah‑ 665, P L D 1977 Lab. 516 and 662, 1' L D 1980 Lah. 1,58 and 316 and P L D 1968 Kar.

869. On the other hand, Mr. Rashidudin Ahmad, learned counsel for the appellant bad urged that if a real owner intervenes the tenant in such situation is entitled to dispute the relationship of landlord and tenant and challenge the title of the person who had been earlier accepted as the landlord by the tenant.. Reliance was placed on P L D 1973 Kar. 284 and N L R 1979 Civil (S C)

257. The contentions raised by the learned counsel for both the parties are arguable contentions and in my view, the points which arise will be properly decided at the time of the regular hearing of the present appeal. Ends of justice will be met and interests of both the parties will stand protected till the disposal of this appeal, if an order is passed requiring the appellant to give security instead of depositing the amount in Court as prayed for in this application. In the circumstances, it is ordered that the appellant will furnish a security in the sum of Rs. 15000 to the satisfaction of the Nazir of this Court within 4 weeks from the date of this order. This disposes of C. M. A. 2942,/81. C. M. A. 1863/8( is the application for stay filed by the appellant under section 22 (2) of the 1979 Rent Ordinance. In view of the order passed hereinabove on C. M. A. 2942/81, the interim order dated 23‑7‑1981 on this application is confirmed and C. M. A. 1863/81 is granted subject to furnishing of security in the sum of Rs. 15000 within 4 weeks from today as ordered on C M. A. 2942/81. M.Y H. Order accordingly.