2004 PLP 698 (YLR)

2. On 12-3-2000 the respondent Mst. Shakila Fatima widow of Master Muhammad Ismail filed petitions for ejectment of the present appellants on the ground that despite being a tenant in the shop owned by his late husband, they are not paying rent to her and that she needed the shops for her personal use and occupation. The respondents admitted that the shops in question were owned by her late husband. However, claimed that the rent of the shops was being collected with the consent of the petitioner by Muhammad Sadiq one of the brothers of the deceased.

3. The learned Rent Controller treated the averments made in the reply to the petition as denial of tenancy and, therefore, on 11-6-1997 framed only one issue with regard to the relationship of landlord and tenant between the parties. After recording the evidence and hearing the parties the learned Rent Controller concluded that the denial of relationship on the part of the tenants was contumacious. Also that the ownership of the shops in question in favour of the deceased husband of the petitioner having been admitted they were not entitled to refuse to pay her rent at least the extent of her legal share in the shops. Accordingly the ejectment petition was accepted and the respondents/present petitioners were directed to vacate the possession of the disputed property forthwith. Also the petitioners as tenants were required to pay arrears of rent accumulated in the meanwhile.

4. Learned First Appellate Authority/Additional District Judge, Kasur by way of the impugned order maintained the findings of the Rent Controller as far the issue of relationship between the parties was concerned. However, as far direction for payment of arrears of rent was concerned, .the learned first authority found that the petitioner before the Rent Controller could receive them only through a civil suit as she was one of the several legal heirs of deceased Muhammad Ismail.

5. Heard the learned counsel for the parties. According to the learned counsel for the appellant the denial of relationship was bona fide and it was based on documentary evidence which was duly brought on record but was not considered by the Courts below. It is stated that after the death of late Muhammad Ismail his legal heirs including the present respondent, his widow, brothers and mother of late Muhammad Ismail entered into an agreement dated 28-7-1994 for appointment of arbitrators. The arbitrators recorded their award on 11-10-1994 and it was made Rule of Court on 10-10-1998. According to the respondents, as per settlement between the legal heirs of the deceased even prior to the award the petitioner was receiving a sum of Rs.400 out of the rent collected by the legal heirs of the deceased in respect of 5 shops owned by the deceased and fetching total rent of Rs.1,600 p.m. It is further stated that the petitioner accepted this fact before the trial Court during proceedings under section 14(2) of the Arbitration Act (X of 1940) for making the award as Rule of the Court.

6. Learned counsel for the respondent, however, relies upon a judgment of the Honourable Supreme Court of Pakistan in re. Haji Abbullah Jan v. Anwar Khan PLD 2000 SC 787 to contend that a co-owner being a landlord within the scope of definition of "landlord" as defined in section 2(c) of the Punjab Urban Rent Restriction Ordinance, 1959 can seek vacation of a tenant without making the co -owners as petitioners.

7. After hearing the learned counsel for the parties I am persuaded to agree that the denial of relationship was qualified. In fact the respondents in the reply wanted to state that the eviction petition was not maintainable as there was no default on their part. They claimed that the petitioner was receiving four hundred rupees as rent out of total rent of Rs.1,600 for 5 shops collected by one of the other legal heirs of the deceased for the benefit of all. That fact was admitted by her before the trial Court in the said proceedings under the Arbitration Act. It is also not disputed that the tenants/appellants are paying rent to legal heirs of the deceased through one of them. Accordingly it appears established that one of the respondents/legal heirs used to collect rent on behalf of rest of them. As far the petitioners are concerned, therefore, there was no default on their part. To my mind learned Rent Controller in view of the pleadings of the parties ought to have framed the issue of default in payment of rent instead of denial of relationship between the parties.

8. It needs to mention that in C.R. 1862 of 2000 re. Mst. Mehran Bibi etc. v. Mst. Shakila Fatima etc. which was filed by the legal heirs of the deceased Muhammad Ismail against the judgment and decree of the learned Additional District Judge, Kasur dated 16-5-2000. I have accepted the submissions made by them. Accordingly the order of the learned trial Court wherein the award dated 11-10-1994 was made Rule of Court was maintained. In that award the respondent was given 1/4th of the total property, of her late husband. Therefore, since that award was disputed by the respondent herself and apparently it has not been implemented so far, therefore, it is yet to be ascertained as to the exact portion of the house or the shop to which she will be entitled to after demarcation of the property. Till then her status as a landlord is similar to those of other legal heirs of the deceased.

9. Be that as it may, since the respondent admitted to be in receipt of part of the rent collected through one of the legal heirs of her deceased husband, the denial of relationship based on such ground does not amount .to forfeiture of tenancy.

10. Therefore, these appeals are accepted and the orders of the two forums below are set aside.

11. It goes without say that this order will not bar any proceedings which the respondent may bring against any tenant of the shop which falls to her share after implementation of the award on any ground that accrues to her thereafter.

12. Appeal accepted. S.A.K./L-77/L Appeal accepted.