2010 PLP 561 (CLC)

FAISAL ARAB, J.

P.K. Shahani, the predecessor-in-interest of the respondent No.1 let out Shop bearing No.A/3, 2762, Market Garden Buildings, Market Quarters, Hyderabad on monthly rent to one Abdullah Badaruddin, the predecessor-in-interest of the petitioners. P.K. Shahani died on 19-11-2002 and after his death, notice under section 18 of Sindh Rented Premises Ordinance, 1979 was dispatched by his legal heirs to the petitioners intimating that P.K. Shahani has died and they have become the new owners. In spite of such notice the petitioners continued to deposit rent in Court in the name of P.K. Shahani and did not tender rent directly to his successors. This led to the filing of eviction application bearing Rent Case No.74 of 2005 in 2005 by the respondent, who is one of the heirs of P.K. Shahani. In the eviction application, the only ground that was taken was that the petitioners have paid monthly rent only upto 31-7-1987 and thereafter have committed default. The petitioners contested the rent application and filed their written statement, wherein they took the plea that P.K. Shahani received rent upto 31-7-1987 and thereafter as he refused to accept the same therefore the rent from August, 1987 onwards is being deposited in Court in Rent Application No.277 of 1988. The receipt of notice under section 18 of Sindh Rented Premises Ordinance, 1979 was denied.

3. The Rent Controller after taking note of the admissions of petitioners' witness Abdul Habib ordered eviction of the petitioners holding that despite knowledge about the death of P.K. Shahani and devolution of ownership in favour of his heirs, the petitioners failed to tender rent to them.

4. The petitioners filed appeal bearing No.F.R.A. No.36 of 2008, which also met the same fate, hence this petition.

5. The learned counsel for the petitioners has contended that the rent application was not maintainable as there were three heirs of P.K. Shahani, but the eviction application was filed by only one of them and therefore eviction application was not maintainable and liable to be dismissed on this score alone. With regard to the question of default, the learned counsel for the petitioners contended that the entire rent since August, 1987 is being deposited in Court after P.K. Shahani refused to receive the same. It was therefore contended that no default in the payment of rent has been committed. The learned counsel for the petitioners has further submitted that the respondent claims to be the owner on the basis of mutation of his name in the city survey record but the mutation by itself is not sufficient proof of ownership as mutation lies not create any right, title or interest and therefore the petitioners do not recognize the heirs of P.K. Shahani as owners of the premises in question.

6. With regard to the first contention, it is now well-settled that any one of the several co-owners of a rented premises can institute proceedings under the rent laws. In the case of Muhammad Hanif v. Muhammad Jamil Turk reported in 2002 SCMR 429, it was held that a co-sharer can file ejectment proceedings against a tenant without impleading other co-sharers. The wisdom behind such principle is that -a co-sharer of rented premises can represent the interest of all other co-sharers. Therefore when the present proceedings were initiated by the respondent, it suffered from no legal infirmity. The other objection that notice under section 18 of Sindh Rented Premises Ordinance, 1979 was not received by the petitioners and therefore no default has been committed has equally no force. It is also now well established principle that even when the notice sent under section 18 of Sindh Rented Premises Ordinance is not dispatched or if dispatched is not actually received by the tenant, the initiation of rent proceedings in Court become sufficient notice to the tenant with regard to the change of ownership and the tenant is liable to tender rent directly to, the new landlord within 30 days of the receipt of the notice of the legal proceedings. In the case of Muhammad Yousuf v. Mairajuddin reported in 1986 SCMR 951, it was held that if the notice with regard to the change of ownership was not served this by itself would not amount to absence of relationship of landlord and tenant. The eviction application itself is to be treated, as notice and if rent is not tendered directly to the new landlord within the statutory 30 days of the knowledge of change in ownership then the tenant becomes liable for eviction. In the case of Habib Bank Limited v. Sultan Ahmed reported in 2001 SCMR 678 the tenant acquired knowledge about transfer of ownership in favour of the new landlord on two occasions i.e. when application under Order. I, rule 10, C.P.C. was filed and secondly when the landlord instituted ejectment application against the tenant and despite knowledge of change of ownership through-such proceedings, rent was not tendered to the new landlord and in such circumstances, it was held that it was a case of wilful default in the payment of rent making tenant liable for eviction.

7. In the present case the petitioners' witness in his cross-examination has admitted that after coming to know about the change of ownership, they have never attempted to tender rent to the new owners. The petitioners in this petition have also denied relationship of landlord and tenant. This is quite surprising because at no stage before the Rent Controller, the petitioners had challenged the claim of the respondent that he is one of the heirs of P.K. Shahani and after his death he has become one of the owners of the premises in question. This plea of denial of relationship has been agitated after the order of eviction passed against the petitioners. This 'grounds is not only without any lawful basis but has been taken before this Court in spite of the fact that one of the petitioners who was examined as a witness has acknowledged in his cross-examination that respondent is one of the heirs of P.K. Shahani. In this background denial by the petitioners warrants eviction of petitioners summarily without considering evidence on record. In the case of Rehmatullah v. Ali Muhammad and another reported in 1983 SCMR 1064, the Honourable Supreme Court held that where the landlord fails to establish relationship of landlord and tenant beyond reasonable doubt only then he cannot be allowed the benefit of affirmative finding on the issue as the Rent Controller need not have to go into disputed "question of title". Leading evidence by parties before Rent Controller on issue of disputed title is not desired and proper course for the Rent Controller would be to decide issue against the landlord and advise the landlord to get his title established from a Court of general jurisdiction before seeking ejectment. Such a finding is to be specifically recorded by the Rent Controller and after such decision by the Rent Controller or in the same hierarchy by the Appellate Court, the High Court or the Supreme Court is not to operate as a bar to the suit to be filed by landlord in order to establish his title. Once title of the landlord is established in civil proceedings, the landlord can re-agitate the matter before Rent Controller again and decision of the Rent Controller or any other Court in the same hierarchy taken earlier would not constitute res judicata or preclude the landlord from re-agitating matter before the Rent Controller once again. The bar contained in section 12(2), C.P.C. and the general principle of res judicata would not be attracted in such a situation. However, this course is to be taken by the Rent Controller only when landlord fails to establish relationship beyond reasonable doubt. In the present case the respondent became owner after the death of his father P.K. Shahani who was admittedly owner of the premises in question. It was P.K. Shahani who inducted the predecessor-in-interest of the petitioners as his tenant. In the case of Province of Punjab v. Abdul Ghani reported in PLD 1985 SC 1 it was held that where a person claims to 6e a landlord and bases his claim on the right to receive rent on account of ownership of property then he has to satisfy the Rent Controller about his title. Once he so satisfies, the Rent Controller would adjudge him as landlord. Such satisfaction has to be beyond reasonable doubt and once the Rent Controller is so satisfied then he will proceed with the matter otherwise he may ask the person claiming to be the landlord to establish his right before the Civil Court. The Honourable Supreme Court has further held that in every case of denial of title, the Rent Controller has to make distinction between genuine and well founded dispute about title and that which is vexatious i.e. the claims' of the tenant that are designated to achieve delay. Where the Rent Controller do not find the objection of tenant to be genuine then he is duty bound not to permit the tenant to challenge title of the landlord and the Rent Controller ignoring such very vital considerations might be deemed to be failing in performing an important duty. In the cited case i.e. PLD 1985 SC 1 it was also held that under section 116 of Evidence Act tenant under the general rule, during subsistence of tenancy, cannot question title of the landlord as it stood at commencement of tenancy. If tenant desires to question the title of the landlord he must surrender possession to the landlord and then he may dispute title. If he fails to observe such a rule, his tenancy right would stand forfeited under section 111(g)(2) of Transfer of Property Act, 1882. The essential condition of avoidance of estoppel on denial of title in all ordinary cases is that if a tenant questions title of a person with whose permission he or his predecessor-in-interest has obtained possession as tenant, then the tenant or his successor must surrender possession before questioning the title of the landlord or his successor. Exceptions to such general rule could be there, but there can be no doubt about the initial impact of such rule.

8. In the case of Ghularn Samdani v. Abdul Harneed reported in 1992 SCMR 1170, it was held that if a tenant denies the relationship of landlord and tenant without any lawful justification, then he is liable for eviction straightaway without recording of evidence on the other allegations of default, damage to property and personal need etc. because while denying the relationship of landlord and tenant default in payment of rent is naturally conceded by the tenant himself. In this case it was also held that even where a tenant alleges deposit of rent in Court in the name of previous landlord but obviously there was no justification for him to resort to such a mode when he comes to know that someone else has become landlord. The tenant is obligated to attorn to the new landlord and tender rent directly to him. In case the new landlord refuses to receive the rent, only then the tenant should deposit the rent in Court in the name of the new landlord but not otherwise.

9. Thus in a case if there is sufficient material on record to establish that a person is a landlord whose such status is unnecessarily denied by the tenant, then as held in the case of Malik Safdar Hussain v. Lutuf Ahmad Khan and others reported in 1997 SCMR 567 denying existence of relationship of landlord amounts to contumacious denial and tenant becomes liable for ejectment without recording any further evidence in the matter. Admittedly Abdullah Badaruddin who was father of petitioners Nos.1 to 3 and husband of petitioners No.4 was inducted as tenant by P.K. Shahani and after the death of P.K. Shahani his heirs including the respondent became owners of the premises in question. The denial of relationship of landlord and tenant with the heirs of P.K. Shahani amounts to contumacious denial of such relationship making the petitioners liable for eviction straight away as in such circumstances it is obvious that rent was not tendered to the new landlords when they become owners. Even otherwise rent from August, 1987 to October, 1988 was deposited in Court on 12-11-1988 hence clear default of 12 months was already committed when rent was deposited in Court. Therefore, this Court in its constitutional jurisdiction finds no legal justification to interfere in the concurrent findings of both the Courts below. This petition, is therefore, dismissed in limine. M.H./H-1/K Petition dismissed.