1990 PLP 2356 (MLD)

On 12th March, `1988, an application under section 16(1) of the Ordinance was presented on behalf of the respondent for a direction to the appellant to deposit the arrears of rent for the period from 1‑12‑1985 to 29‑2‑1988, at the rate of Rs.520 per month, amounting to Rs.14,040, and the future rent at the aforesaid rate, from 1‑3‑1988 onwards. The appellant filed objections to the said application stating, inter alia, that the rent upto April, 1988 had already been deposited in Misc. Rent Case No.774 of 1986 in favour of S.M. Jamil. The respondent, in turn, also filed a reply to the objections filed by the appellant. The learned Rent Controller vide his order, dated 23rd May, 1988, passed after hearing the learned counsel for the parties, repelled the appellant's plea that the respondent was not the absolute owner of the demised premises. Relying upon the copies of the documents filed alongwith the application, such as, the confirmation of oral declaration of gift made in her favour by S. Pit. Jamil, a letter of transfer of disputed premises in her favour and the copies of the notices sent by the previous owner, S.M. Jamil to the appellant, held that she is the owner and landlady of the demised premises for all purposes and that the appellant had become her tenant. Consequently, he directed the appellant to deposit Rs.15,080 towards arrears of monthly rent at the rate of Rs.520 per month for the period from 1‑12‑1985 to 30th April, 1988 within 30 days and the future rent at the said rate on or before 10th of each calendar month following the month for which it becomes due. On the same day he passed another order dismissing the application filed on behalf of the appellant praying for dismissal of Rent Application for it having been filed by a person who had failed to file in Court the power of attorney authorising him to do so. Without complying with the tentative order for payment of rent, the appellant on 10‑8‑1988 filed an application for review of order passed under section 16(1). In the meanwhile, on 21‑7‑1988, an application under section 16(2) of the Ordinance had been filed by the respondent for striking off the defence of the appellant, on account of her failure to comply with the order passed on the application under section 16(1) of the Ordinance. The learned Rent Controller has disposed of both the aforesaid applications, i.e. the application for review of order passed under section 16(1) and the application under section 16(2) of the Ordinance filed by the respondent, vide his impugned order thereby dismissing the review application filed by the appellant and allowing the respondent's application under section 16(2) for striking off the defence of the appellant and directing the appellant to vacate the demised premises within 6(l) days from the date of order. I have heard Mr. Moinuddin Ahmed, Advocate, the learned counsel for the appellant as well as Mr. Nisarally, learned counsel for the respondent. With the assistance of the learned counsel for the parties I have perused the Rent Controller's record and the impugned order. It was contended by Mr. Moinuddin Ahmed, Advocate, that the ejectment application was not properly instituted inasmuch as it was filed by and through an attorney without ring the power of attorney allegedly executed by the respondent authorising him to institute the ejectment application. The power of attorney, according to the learned counsel, was to be annexed with the application. In short, he contended that there has been a non‑compliance of the provisions of Order 3, C.P.C., which, in his submission, are applicable to the rent proceedings. He also contended that rule 32 (1) (xii) of the Sindh Civil Courts Rules was also not complied with. It was next urged by him that unless the question of relationship of landlord and tenant between the parties was decided by the learned Rent Controller, no order under section 16(1) could legally be passed. The counsel emphasised that the learned Rent Controller should have framed a preliminary issue regarding the existence or otherwise of the relationship of landlord and tenant between the parties, and after recording the evidence of the parties, decided the same before passing an order under section 16(1). It having not been so done, the order passed on the application under section 16(1) is, therefore, in his submission, improper and illegal. He also submitted that there had been no hearing of the application under section 16(2) of the Ordinance and hence the impugned order striking off the appellant's defence is illegal and without jurisdiction. The counsel also argued that notice under section 18 of the Ordinance was not served upon the appellant and hence no relationship of landlord and tenant between the parties had come into being. He also attacked the validity of the gift deed dated 31‑7‑1986 by contending that it was the respondent's attorney who had accepted the gifted property although the gift was allegedly made somewhere on 24th November, 1985. Lastly, the counsel submitted that the documents of title etc. filed alongwith the application are fictitious documents. In support of his above contentions, the learned counsel made a reference to the following case law:‑‑ (1) PLD 1987 Karachi 159; (2) PLD 1964 Lahore 648; (3) 1987 MLD 2818; (4) 1985 MLD 124; (5) 1989 CLC 682; (6) 1988 CLC

303. It was, on the other hand, submitted by Mr. Nisarally, learned counsel for the respondent that the impugned order is perfectly legal, proper and valid in law inasmuch the learned Rent Controller has after giving proper opportunity of hearing to the parties, passed it. He contended with vehemence that the respondent has admitted that he was the tenant of S. M. Jamil, the original owner and donor of the property in question. He then submitted that the property in question has been, on the basis of the oral gift made by the aforesaid donor in his favour on 24th November, 1985, duly mutated in the name of the appellant. A declaration of gift was also made on 8‑12‑1985 which too has been duly registered. The objection of the appellant m the written statement assailing the validity of the gift, according to the learned counsel, was wholly fallacious and untenable in law. In support of his last mentioned contention, the learned counsel placed reliance on the cases of (1) Pervez Akhtar v. Dr. Muhammad Ahsan and others PLD 1988 SC 734, and, (2) Muhammad Ishaque through his L.Rs. v. S. Khurshid Alam PLD 1989 SC

353. In the first above‑noted case, it was contended before the Supreme Court that the gift made by the donor was not approved by the Cantonment Board and hence it was invalid. Their Lordships held: "It is difficult to accept this contention for the reason that the validity or invalidity of the gift was a matter between the Cantonment Board and the respondents. The Petitioner being an outsider had no locus standi to call in question its validity." The facts of the second above‑noted authority are almost identical to the facts of the case in hand. In that case also the tenant had admitted that he was tenant of the donor‑landlord, who gifted the property in question to the respondent through a gift‑deed registered with the Sub‑Registrar. After the transfer of the property gifted to him, the transferee‑landlord (respondent) filed an application for eviction against the appellants on the ground of default etc. In the written statement, it was, as already stated, admitted that the appellants' predecessor was the tenant of the house but it was denied for want of knowledge that the respondent (donee) was the owner and landlord of the house and further it was pleaded that no notice as provided under section 18 of the Ordinance was given by the respondent. Their Lordships of the Supreme Court after reproducing the certain observations from their judgment in the case of Rehmatullah V. Ali Muhammad and anther 1983 SCMR 1064 held: "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 of the property has been established by the production of registered deed". Dealing with the objection of the tenant that the gift was not vaid, their Lordships observed:‑‑ "It may be stated that once the property was transferred by registered gift deed, the respondent has become the owner thereof, to receive the rent in accordance with the provisions of section 55(6) clause (a) of the Transfer of Property Act, 1882; and thus he became the landlord of the house within the meaning of section 2(f) of the Ordinance." It was further held by the Supreme Court in this case that it was not open to the tenant to question the validity of the gift made in favour of the respondent. Respectfully following the above authorities of the Supreme Court and in the presence of the title documents filed alongwith the Ejectment Application, I do not feel hesitant to hold that‑ the objection raised by the learned counsel for A the appellant that the Rent Controller erred in deciding the issue of relationship of landlord and tenant between the parties without recording the evidence is without substance. It is accordingly repelled. Now I proceed to take the other objection raised by the learned counsel with regard to the non‑service of the notice and its effect. This objection is also without substance for at least two reasons. Firstly, the notices had been sent by the respondent to the appellant as noted above, although he refused to accept the last one. Secondly the filing of the ejectment application as such was tantamount to notice of change of ownership as held by the Supreme Court in the cases of (1) Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24, and (2) Maj. (Retd.) Muhammad Yousuf v. Mehrajuddin 1986 SCMR

751. The learned counsel for the respondent submitted that both these authorities are distinguishable on their facts. I do not find any substance in this contention of the learned counsel for the appellant. A bare reading of both these two authorities manifestly indicates that they do lend support to the contention of Mr. Nisarally. Before parting with this case, I would also like to shortly deal with and dispose of the contention raised by the learned counsel for the appellant with regard to the non‑compliance of the provisions of C.P.C. and the Sindh Civil Courts Rules as well as his last contention that no hearing of the application under section 16(2) was given. In this connection it may be noted that in so far as the non‑compliance of the provisions of C.P.C. and the Sindh Civil Courts Rules concerned, suffice it to say that they do not as such apply to the rent proceedings. Besides, it is a matter pertaining to the defence of the appellant and it could be pressed into service successfully, it at all, had the matter been decided on merits The pleas set up in defence cannot be taken into consideration if there had been a default in compliance of an order under section 16(1) of the Ordinance. In so far as his grievance that no hearing of section 16(2) application was done is concerned, a reference to the record shows that it is also unfounded. Several dates were fixed for hearing of application under section 16(2). Moreover, the appellant had not even filed any objection to the application under section 16(2) of the Ordinance. The only course adopted by the appellant was, as already indicated, to file an application for review of the order passed on the application under section 16(1). For the foregoing reasons, the appeal is held to be without substance and it is dismissed accordingly with cost. I would, however, allow two months' time to the appellant to vacate the demised premises and hand over its vacant and peaceful possession to the respondent, subject to his making the payment of monthly rent to the respondent, failing which he will be liable to be evicted forthwith without notice. A.A./M‑1202/K Appeal dismissed