1989 PLP 4240 (MLD)

Date of hearing: 31st January, 1989. Petitioner, by virtue of a suit for partition decreed on 20-9-1980 (Exh. A 4), became the sole owner of the suit shop, which was rented out to the respondent vide rent note dated 22-2-1981 (Exh. A-l) at the rate of Rs. 300 p.m. in pursuance whereto Rs. 900 were deposited as advance, out of which, Rs. 1110 p.m. was to be adjusted towards the rent, and in July' 1982, the rent was enhanced by Rs. 45 P.M. Subsequently, on 3-7-1983, petitioner sought ejectment of the respondent from the suit shop on the grounds of subletting, personal need and closure of the shop for 6/7 years, resulting into disconnection of supply of energy, wherein the respondent dented relationship of landlord and tenant; consequently, the learned Rent Controller framed the solitary issue other than the relief as to whether the relationship of landlord and tenant exists between the parties?

2. The petitioner appeared as AW-5 and supported the contents of the plaint, on which count he was fully corroborated by Muhammad Khalid AW-4, General Secretary, Gaddafi Market, where the suit shop was situated, while the remaining three witnesses were of formal nature, namely Ch. Rasid Ahmad, Advocate AW-1 stated to have issued notice within the contemplation of section 13-A of the Punjab Urban Rent Restriction Ordinance, 1959, Mansoor Hafeez AW-2, petition writer, deposed to have drawn up the rent note Exh. A-1 and Nazir Hussain Butt, AW-3, testified having signed the same as marginal witness, while the respondent preferred not to lead any evidence, whereupon the learned Rent Controller, allowed the ejectment petition on 4-2-1985, which on appeal, was set aside by-the learned Additional District Judge, vide the impugned judgment dated 28-11-1985 and remanded the case for fresh adjudication on merits with a direction to frame all the remaining issues, against which the present petition has been directed.

3. Learned counsel for the petitioner contended that since the respondent contumaciously denied the relationship of landlord and tenant, despite the proved written tenancy, therefore, the learned Rent Controller was justified in forfeiting the tenancy, consequent upon deciding the solitary issue and in- this regard, has placed reliance on Amanullah Khan v. Chotey Khan (1978 S.C.M.R. 14) and Nisar Ahmad v. Nazar Muhammad (PLD 1974 Lah. 489); whereas, on the other hand, learned counsel for the respondent has supported the impugned judgment by placing reliance on Muhammad Yosauf v. Muhammad Hassan etc. 1980 CLC 1414 and Abdul Rashid v. Muhammad Akhtar and another .1980 CLC 11-11, wherein second appeals were allowed and the cases were remanded to the learned Rent Controller in similar situation.

4. Having considered the arguments advanced by the learned counsel fort' the parties, I am of the view that consequent upon written tenancy having bee in proved through unimpeachable evidence of five witnesses, whose testimonies remained unrebutted when visualised in the perspective of contumacious denial by the respondent of the very factum of relationship, he was estopped from joining issue with petitioner's requirement of personal need, to which he had become an utter alien by his own stance; therefore, the question of any further inquiry on any other issue would be an uncalled for futile exercise. A useful analogical reference can be made in this behalf to the observations made in the case of Nisar Ahmad v. Nazar Muhammad (PLD 197-1 Lah. 489), that "A person who does not acknowledge the relationship of landlord and tenant between the parties has no right to plead after finding in this regard against him for any further inquiry, under the said provision. 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. Consequently, with due respect, I could not persuade myself to contribute to the views expressed by my learned brother in the cases referred to by the respondent. As a result of aforegoing, this petition is allowed; the impugned judgment is set aside and the ejectment order passed by the learned Rent Controller is restored; leaving the parties to bear their own costs. H.B.T./M-1507/L Petition allowed.