2018 PLP 109 (CLCN)

MOHAMMAD IBRAHIM KHAN, J.

The sons of Muhammad Sherin Khan by the names of Taimur Khan, Atta Ullah, Ikram Ullah Khan and Rafi Ullah Khan have joined hands by filing their application for ejectment of Rahmat Ullah and Wazir sons of Abdul Qadir of a house the boundaries of which are given in Para 'Alif' of the plaint and there is a recovery prayer 'Bay' for an amount of Rs. 3,600/- on account of rent due from January 2009 to December 2009 @ Rs. 300/- per month and onwards from January 2010 till vacation of the suit house by the Defendants (herein is one of, the Petitioner). The parties hail from District Malakand where this house is situated. It was given on rent by father of the Plaintiffs (herein the Respondents Nos. 1 to 4) by the name of Muhammad Sherin Khan whose soul has since been departed. The period for which the recovery of rent is required the Defendants (herein is one of, the Petitioner) have defaulted. The Defendants (herein is one of, the Petitioner) have also carried out the construction/improvements in the suit house due to which its value has been considerably decreased. In fact this act is nothing but to keep the Plaintiffs (herein the Respondents Nos. 1 to 4) to deprive them of their ownership rights as well as it tentamounts to denial of their relationship as landlords and tenants. Many times notices have been issued for vacation of the premises (suit house) but altogether the Defendants (herein is one of, the Petitioner) never paid any heed to it, thus, they be ejected from the premises of the house and recovery of rent be also effected from them.

2. This claim was hotly resisted by the Defendants (herein is one of, the Petitioner) on many legal and factual grounds. The learned Rent Controller on the basis of averments taken in the pleadings of the parties framed the following sole issue:-

3. Then the parties were given opportunity to adduce their respective evidence, which was accordingly led on behalf of both the sides. Earlier, the Court of learned Civil Judge- II/Illaqa Qazi Malakand at Batkhela with powers of Rent Controller was pleased to pass an ejectment order by granting a decree dated 23.12.2011 to the extent of ejectment of the Defendants (herein is one of the Petitioner) from the house in question.

4. Next off, the matter was taken up before the learned appellate Court through Rent Appeal No. 1 of 2012 preferred by the Appellant Rahmat Ghani, which was allowed by the learned District Judge/Izafi Zila Qazi Malakand at Batkhela vide the judgment dated 06.06.2012 and the matter was remitted back to the learned Rent Controller for delivery of findings on the additional issues Nos. 1 and 2 framed by the learned appellate Court with further direction to appoint a commission for assessment of the improvements made by the Defendants (herein is one of the Petitioner) in the house in question.

5. Feeling aggrieved from the remand order, the Plaintiffs (herein the Respondents Nos. 1 to 4) preferred Writ Petition bearing No. 344-M of 2012 before this Court which was later on converted into Regular Second Appeal bearing No.21-M of 2014 and on 22.01.2015 it was decided in the following manner:- "Upshot of the above discussion is that the impugned judgment of the learned lower appellate Court is not legal, therefore, this Regular Second Appeal is accepted and the impugned judgment is set aside. Consequently, the case is sent back to the learned lower appellate Court to decide the respondents' appeal on merit in terms mentioned above." Consequent to the above-referred directives of this Court, the learned District Judge/Zila Qazi Malakand at Batkhela upon delivery of detailed findings on merits dismissed the appeal bearing No. 1/RA Neem of 2015 vide the impugned judgment dated 21.6.2016.

6. This is a Writ Petition bearing 477-M of 2016 preferred by the tenant Rahmat Ghani against his landlords Taimur Khan and others in utter denial of the relationship inter-se existed in between the parties with the following perspective prayer:- "It is therefore, humbly prayed that on accepting of this writ petition the impugned orders, judgments and decrees of both the lower Courts dated 23.12.2011 and 21.6.2016 may kindly be set aside and suit of Respondents Nos.1 to 4 may please be dismissed with cost."

7. Having heard arguments of learned counsel for the parties, the available record placed on file perused with their able assistance.

8. Learned counsel for the Petitioner referred to 1991 SCMR 1376 "Abdul Hameed Naz and 7 others v. Mst. Razia Begum Awan and 4 others", 1983 SCMR 1064 "Rehmatullah v. Ali Muhammad and another", 1991 SCMR 215 "Shaukat Javed v. Sh. Abdul Khaliq and 2 others", 1991 CLC 1364 (Lahore) "Abdul Hafiz Khan v. Muhammad Anwar and others", 1994 SCMR 572 "Umar Hayat Khan v. Inyatullah Butt and others", 1997 MLD 2262 (Karachi) "Afzal Ali v. Azhar Iqbal" and 1989 CLC 106 "Wazeeruddin v. Khalid Masood". In the light of wisdom contained in these verdicts of the Hon'ble superior Courts prayed for acceptance of the writ petition with specific and loud claim that in between the parties there is no relationship of landlords and tenant ever existed. On the other hand, learned counsel for the Respondents placed reliance on 2000 SCMR 556 "Barkat Ali v. Muhammad Ehsan and another", 2002 SCMR 429 "Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others", 2000 CLC 1841 (Karachi) "Saifullah and another v. Ch. Ghulam Ghous" and thereby prayed for utter dismissal of the petition in hand, as all the learned fora below have unanimously dismissed the claim of Defendants (herein is one of the Petitioner) being tenant under the Respondents Nos. 1 to 4 (hereinbefore called the Plaintiffs).

9. Before the evidence of the parties is to be appreciated in the light of relationship of landlord and tenant, its refusal on the part of Petitioner (hereinbefore called as one of the Defendants), let it be more clear in terms of definition of landlord. According to the West Pakistan Urban Rent Restriction Rent Ordinance, 1959 the term "landlord" has been defined:- "Any person for the time being entitled to receive rent in respect of any building or rented land whether of his own account or on behalf or for the benefit of any other person, or as trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant, who sublets any building or rented land in the manner hereinafter authorized and every person from time to time deriving title under a landlord." In this case the actual landlord was Muhammad Sherin Khan deceased, the present Respondents Nos. 1 to 4 (hereinbefore the Plaintiffs) are his sons. The successors-in- interest of original landlord enjoys the status of landlord, in this regard reference can be had of 1991 CLC Note 9 (P-6). This relationship in between the parties has been established by way of the rent agreements in between the deceased Muhammad Sherin Khan through Ex. PW-1/2 and Ex. PW-1/3. On execution of these deeds, it has been candidly put as condition that while the rent was fixed Rs. 30/- per month it initiated from 01/01/1986 and later on the rent was increased @ Rs. 100/-. The terms and conditions would further reveal that if for any personal requirement this house is required to the said Muhammad Sherin Khan (since deceased) the landlord, it will be vacated in his favour after a notice of one month is served upon the tenants and this house will never be sublet to any other person without permission of the landlord (Late Muhammad Sherin Khan). True, this relationship has been denied by the Petitioner (hereinbefore called one of the Defendants). It was the requirement by the learned Rent Controller to have framed only one issue with regard to the existence or otherwise of the relationship of landlord and tenant between the parties, which sole issue could resolve the controversy in between the parties. This judicial consideration for framing of this issue has finally been resolved in this case by the judgment as contained in Regular Second Appeal No. 21-M of 2014. So, there can be no further objection in this behalf.

10. Searching for the evidence besides the Plaintiffs (herein the Respondents Nos. 1 to 4), the brothers have been represented by Taimur Khan the elder brother of the other three (3) brothers by the names of Atta Ullah, Ikram Ullah Khan and Rafi Ullah Khan examined as PW-1 and in his support PW-2 Pervaiz and PW -5 Wisal Muhammad recorded their statements as PW-3 and PW-4 have been abandoned. When the statements of the Defendants (herein is one of the Petitioner) DW-1 Rahmat Ghani, DW-2 Umar Ghani and DW-3 Gul Muhammad are appreciated. All the witnesses in support of the Defendants (herein is one of the Petitioner) have admitted that this house belongs to Muhammad Sherin Khan and even the surrounding lands are also owned by him. Where such like admissions are available on the file then mere denial of relationship of the landlord and tenant in between the parties would only to deprive the Plaintiffs (herein the Respondents Nos. 1 to 4) from the legacy of their father. The successors-in-interest have stepped into the shoes of their father Muhammad Sherin Khan (deceased) and thereby this relationship of landlord and tenant from the time of the rent agreements, which have been proved by its marginal witnesses stand established.

11. Learned counsel for the Petitioner (hereinbefore called one of the Defendants) has come up with an objection that the petition for ejectment is bad for non-joinder of the necessary parties and that the present Plaintiffs (herein the Respondents Nos. 1 to 4) have no right to ask for ejectment of the premises of the house or for the recovery of rent of Rs. 3600/- from 1st January 2009 to December 2009 which comes @ Rs. 300/- per month. This aspect requires consideration. Indeed in the statement of PW-1 Taimur Khan, he has in his cross- examination admitted:- This suit could be bad for non-joining of the mother and sisters of the Plaintiffs (herein the Respondents Nos. 1 to 4) but where one of the legal heir of the deceased Muhammad Sherin Khan being a successor-in- interest has established to be the lawful owner under the legacy of his father and the house was rented to the Petitioner (hereinbefore one of the Defendants) then the Hon'ble Supreme Court of Pakistan in 2002 SCMR 429 "Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others" has clarified the filing of an ejectment application by the sole co-sharer in the following manner:- "Co-sharer can file ejectment petition against the tenant without impleading other co-sharers as one co-sharer acts on behalf of all the co-sharers of the property and represent their interest". This view has further been adopted by the Hon'ble Sindh High Court at Karachi in 2000 CLC 1841 "Saifullah and another v. Ch. Ghulam Ghous", wherein the relevant citation speaks of:- "S.

15. Entitlement of co-sharer to file ejectment application. Co-sharer was perfectly entitled to file ejectment proceedings without impleading other co-sharers".

12. The law on the subject is that for smooth administration of justice legal formalities and technicalities, its principle object behind all legal formalities is to safeguard the paramount interest of justice. Legal precepts were devised with a view to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and mala fide. The wisdom contained herein also reflects that where such like proceedings are carried out under the West Pakistan Urban Rent Restriction Ordinance (VI) of 1959 these are not stricto in judicial sense. It is only the satisfaction of the Rent Controller alone on the basis of material available on the record to decide whether or not an order of the eviction is to be passed in the given case. In the case in hand, the learned Rent Controller has properly appreciated the evidence. Admittedly the suit premises was the ownership of Muhammad Sherin Khan (deceased) father of the present Plaintiffs (herein the Respondents Nos. 1 to 4). In no way the present Petitioner has ever established as to why this relationship is denied. Father of the Respondents Nos. 1 to 4 (hereinbefore called the Plaintiffs) properly executed rent agreements to this effect and the same are available on record. Thus, the relationship of landlord and tenant between the parties cannot be denied.

13. It is expressly given in 1991 SCMR 1376 in "Abdul Hameed Naz and 7 others v. Mst. Razia Begum Awan and 4 others" that where the denial of relationship of landlord and tenant exist between the parties and where such relationship is at stake, thereby the landlord's failure to establish his title of property in question then the jurisdiction would not rest with the Rent Controller rather it is for the Civil Court to be approached for the establishment of the title. In order to inculcate the true spirit of this legal principle the relevant citation of ibid judgment is reproduced as under:- "Rent Controller could not decide question of relationship of landlord and tenant against tenant when landlord had failed to establish his position as landlord beyond reasonable doubt. Rent Controller would be required to decide the issue of such relationship against the landlord and advise him to first get his title established before seeking ejectment." With all due respect and admirations for the ratio decidendi settled in the above referred judgment, this is not a case here as the Plaintiffs (herein the Respondents Nos. 1 to 4) have duly proved their ownership, the rent deeds have been executed and here these facts have been admitted in the statements of Defendants (herein one of the Petitioner) and their witnesses. The Petitioner (hereinbefore one of the Defendants) and witnesses statements which are sufficient, besides the execution of rent deeds as referred to for acceptance of the petition before the learned Rent Controller for ejectment of the Petitioner (hereinbefore called the one of Defendants) and of course for the recovery of the rent at the same rate as given in head-note "Bay" of the ejectment petition which on account of denial of this relationship has never been paid. The learned Rent Controller's judgment in this behalf is silent in respect of recovery of the due rent which order is also carried out accordingly. Resultantly, this petition has no force before this Court, which is hereby dismissed with cost. ZC/261/P Petition dismissed.