1982 PLP 1798 (CLC)

4. Against the above order, the present appellants have filed this appeal and have challenged the findings reached by the learned First Appellate Court.

5. The main contention of the learned counsel for the appellants was that according to the P. T. O. issued on 7th April, 1961 as well as P. T. D. dated 22nd September, 197 the respondent was transferee of premises bearing No. 6151 to G/56 and that he was not the transferee of the tenement No. G/52/1 (equivalent to G‑52/A) which according to the learned counsel was not shown to have been transferred in the P. T. O. or P. T D issued to the respondent The learned counsel placed reliance upon the order passed on 7th December, 1968 wherein the learned Settlement Commissioner in case No. S. C. K‑77/68 filed by Muhammad Ibrahim (Appellant No. 1), while rejecting the application for transfer of the tenement in question to the appellants observed that the present respondent by his `original application dated 19th January, 1961 had applied for transfer of 6 tenements No. 51 to 56 which were ordered to be transferred to him by the Additional Settlement Commissioner on 25th January. 1961 and that subsequently by another application dated 6th March, 1961 the respondent wanted to add one more tenement No. 52‑J but no formal order seemed to have been passed. The learned Settlement Commissioner in the aforestated order observed as follows :‑ "No formal order seems to have been passed on this application. But he has been issued P. T. O. and P. T. D., on the basis of this alleged subsequent application which was got approved on 5th February, 1964. In this plan the area shown to have been transferred to the respondent is much in excess of his transfers. This plan needs correction, I therefore direct that the transfer documents and the plan approved by Mr. Sharif, Deputy Settlement Commissioner on 5th February, 1964 be cancelled and the same be issued to him after proper necessary correction. That the Deputy Settlement Commissioner concerned will hear the respon dent before these corrections are made by him. This revision petition is decided as above." The learned Advocate for the appellants further contended that the tenement No. G. 52/1 (which is also described, as. No. G. 52/A) after order of the learned Settlement Commissioner referred to above passed or; 7th December, 1968 (Exh. P/9), could not be treated to have been transfer red to the respondent. . In reply to above arguments Syed Inayat Ali, the learned counsel referred to the order of the Deputy Settlement Commissioner passed on 25th November, 1969 (Exh. P/7) passed pursuant to the order of remand dated 7th December, 1968 (Exh. P/9). The relevant observations/findings are reproduced herein below : ‑ "I have perused the record. It is an admitted fact that these two bifurcated tenements stands transferred to Mr. Tasleemul Hassan and was given No. G./52. I further opine here that in a normal sense, if entire tenement number is mentioned, it includes its sub numbers, if not specifically described are treated as one‑ Office has further reported that entire transfer price has correctly been charged from him and he has also paid the transfer price of the tenement G‑52/1. The other directions contained in the order of Settlement Commis sioner dated 7tb December, 1968 regarding correction of plan which was verified and approved by the then Deputy Settlement Commissioner, for which the transferee has been directed to get the plan prepared by a licensed architect, for tenements G‑5.1 to G‑56 and show me the site approval. The learned counsel further submitted that after the passing of the above order dated 25th November, 1969 (Exh. P/9) by the learned Deputy Settlement Commissioner, the matter again was taken up by the Deputy Settlement Commissioner, Karachi for correction in transfer documents, and he by his order dated 9th May; 1974 held as follows :‑ "Order of the Deputy Settlement Commissioner dated 25th November, 1969 on this issue is very clear, there appears to be no need to mention sub‑number G/52‑1 in the P. T. D. However if he insists the needful be done. Inform accordingly." The learned counsel for the respondent has produced the certified copy of the order dated 9th May, 1974 and the photocopy of the original P. T, D. wherein G/52/1 has also been shown to lave been transferred to the respondent. The original P. T. D. has been returned and its photocopy has been kept on the record. Copies of these documents were supplied to the other side counsel on the last date of hearing. The learned counsel for the appellants faced with these documents submitted that the appellants were not heard before the order dated 7th December, 1974 pursuant to which the correction has been made in the P. T. D., was passed. It would however be sufficient to state that the appellants having already been eliminated and having been found not to be entitled to the transfer of the property in dispute, vide order passed on 7th December, 1968 Exh. 7 were not required to be heard. It may also be noted here that the appellants had filed C. P. No. 170 of 1969 against the order dated 7th December, 1968 which was dismissed by a learned Single Judge of the then High Court of West Pakistan (Karachi Bench). It is pertinent to mention here that the learned Single Judge in the order passed on 27th March, 1969 while dismissing the above‑mentioned petition in the concluding para. observed :‑ In reply to the above observations, counsel for the petitioner says that respondent No.. 4 (Taslimul Hassan) was not entitled to get the premises transferred to himself, because according to the petitioner, he was guilty of fraud. This view disregards the real obstacle namely that he has to establish his own right before be can with any advantage, question the orders made in favour of others." It would be seen from the above order as well as the order of the learned High Court in Petition No. 170/69 as well as the public documents placed on record by the learned counsel for the respondent, that the tenement No. G‑52/ 1 (equivalent to G‑52/A) was already in favour of the respondent and that the clarification made on 9th May, 1974 was not an addition of any new tenement to the property already transferred vide P. T: O. dated 7th April, 1961 in favour of the respondent. The clarification became necessary which' was done pursuant to the orders of the learned Settlement Commissioner passed on 7th December, 1968 (Exh. P/9).

6. In view of the above findings it is not open to the learned counsel for the appellants to contend that the transfer in favour of the respondent at the most can be deemed to have taken effect on 9th May, 1974, when the number of tenements in dispute, was shown in the P. T. D. contention also fails as we find that as far back as in 1969 vide order dated 25th May, 1969 (Exh. 7) it was expressly held by the Deputy Settlement Commissioner that the tenement No. G‑52/1 stood transferred to the respondent. The learned counsel for the appellants could not advance any further argument except raising the contention that the case which was filed in 1964 seeking ejectment of the appellants from tenement No. G. 5211 was not then maintainable. This plea has no force for the reasons already stated above. In any case having found that the appellants have been eliminated and are not entitled to the transfer of the tenement in question by order passed on 7th December, 1968 by the Settlement Commissioner which order was also maintained in W. P. No. 170 of 1969 by the High Court and that the respondent is the rightful transferee of the property, it would be sheer waste of time and prolonging: the agony by throwing out the case of the respondent pending since 1964 and asking him (in 1982 after about 17 Nears of litigation) to start the proceedings afresh. Having found that the respondent is the rightful transferee of the tenement in dispute the question which now requires consideration is whether it is a fit case which should be remanded to the learned Rent Controller. An offer was made by the learned counsel for the respon dent, to the appellants to pay the rent to the respondent but the latter refused to accept the offer contending that the respondent is not the rightful transferee of the property in dispute. In the circumstances I find that in view of the conduct of the appellants who continue to deny the title of the respondent and refuse to pay rent to. him in spite of the fact that adverse orders were passed against them by the Settlement Commissioner on 7th December, 1968 and their Petition (C. P. No. 170/69) was dismissed as far back as on 27th March, 1969 by the High Court no useful purpose would be served by remanding the case to the Rent Controller to decide the issues which were framed by the learned First Appellate Court in the impugned order passed on 26th April, 1964. I am fortified in taking the above view, by the judgment given in the Second Appeal No. 326 of 1972 on 19th April, 1976, wherein a learned Single Judge of this Court, having found that the tenant/appellant was disputing the title of the landlord and was refusing to pay rent held :‑ "Mr. S. M. Gharib Nawaz, the learned counsel for the respondent, however, contended that no purpose will be served by any further inquiry by the Rent Controller as regards the default in payment of rent in view of the denial by the appellant of the relationship of landlord and tenant between the parties and this. Court should, therefore, proceed to make an order of eviction in terms prayed for. The learned counsel relied on a decision reported in P L D 1974 Lah. 489 in which it has been held that a person who does not acknowledge relationship of landlord and tenant between the parties has no right to plead after finding in this regard against him .for any further enquiry under section

13. He is estopped by his conduct to plead, that since he has been found to be a tenant, therefore he should be allowed to prove. the payment of rent and that the passing of any order under subsection (6) of section 13 will be an exercise in futility resulting only in prolonging the agony of unnecessary litigation. I am in respectful agreement with this view and accordingly the respondent's prayer for eviction of the appellant on the ground of non‑payment of rent is granted." Petition for special leave to appeal preferred against the above order was dismissed by the Honourable Supreme Court (1978 S C M R 14), with the following observations :‑ "for the case as it stands, it is an admitted position that the petitioner has defaulted in payment of rent as he did not accept the respondent as his. landlord. On this view of the matter it would not have served any purpose to remand the case for the issue of default could not have been disputed." In the circumstances, the appeal was dismissed by short order passed on 15th December, 1981. The appellants were granted four months time to vacate the premises. The above are the reasons for passing the said order.