1989 PLP 511 (SCMR)

NAIMUDDIN, J.‑‑Respondent filed an application under section 17 of the Cantonment Rent Restriction Act, 1963, in the Court of Additional Controller of Rent, Peshawar Cantt. for eviction of the petitioners from quarter (katcha kotha), situated on a plot bearing No.173‑A, near 25 Mall Road, Peshawar Cantt, on the grounds of default in the payment of rent and reconstruction claiming himself to be the owner of the property and the petitioners as tenants. He also filed similar application in respect of two quarters against two other tenants, namely, Muhammad Siddique and Qaim Din who are also petitioners before us. All the petitioners in their separate written replies denied that the respondent was the owner of the quarters or that they were his tenants. They clamed therein that the owner of the property was Mst. Khurshid Jehan Begum and they were paying rent to her and no rent was outstanding against them. On the pleadings of the parties the Controller framed the following preliminary issues: "(1) Whether the relationship of landlord and tenant exists between the parties? (2) Whether the petitioner (respondent) is owner of the property in dispute? (3) Relief." The Rent Controller by three similar orders, all dated 2nd July, 1987, allowed all the three applications holding that the respondent is the owner and the petitioners are his tenants, and directing them to vacate the quarters and deliver their possession to the respondent within 60 days. Aggrieved by the said orders the petitioners filed three separate appeals in the Peshawar High Court, which were dismissed by the orders all dated 7th September, 1988, giving rise to this petition and two other petitions, being C. Ps. Nos.414‑R/1988 and 415‑R/1988. We have heard Mr. Atiq‑ur‑Rehman Oazi, Advocate, in support of all these petitions. Learned counsel submitted that the quarters in question form part of Bungalow No.25, Mall Road, Peshawar and that they permanently transferred to Mst. Khurshid Begum wife of Mir Ajam Khan, retaining the rear portion comprising of three quarters occupied by petitioners and that Abdul Hanan and others who sold and transferred the property to the respondent by registered sale‑deed dated 25th August, 1986, had no right to so‑sell and transfer the quarters. He further submitted that no notice of transfer of the property was given by him to the petitioners nor did he ever ask them to pay the rent. Ire also submitted that the Controller should have decided the cases on merits. Taking up the first submission we find that the Rent Controller in his order has dealt with it in great detail and his finding after discussing the evidence produced before him is that the three quarters in dispute are not included within the area of Bungalow No.25 and, therefore, Mst. Khurshid Jehan Begum is not the owner thereof. He has referred to the evidence regarding the suit instituted by Mst. Khurshid Jehan Begum in the following words:‑‑ "The petitioner further states that the respondent in connivance with Mst. Khurshid Jehan has instituted suits in respect of the above property in Civil Court one such Suit No.159 was dismissed by the Civil Court on 24‑11‑1979 against Mst. Khurshid Jehan. Its appeal was also dismissed on 9‑11‑1981, the same are exhibited as P.W.2/2 and P.W.2/3. The judgment of the learned Additional District Judge, Peshawar exhibited as P.W.2/3 needs consideration and the para. 4 of its judgment clearly proves that the area of the servants quarters was not to be included within the plinth area of Bungalow No.25. The learned Judge further gave verdict that Khurshid Jehan did not have any right to said property, therefore, the learned Judge dismissed the suit filed by Mst. Khurshid Jehan and also agreed that her previous suit was also rightly dismissed. The petitioner further stated that one suit was also filed by Khurshid Jehan Begum against him and the respondent in the Court of Senior Civil Judge, Peshawar which was dismissed as withdrawn on 30th November, 1986. The same is exhibited as P.W.2/4, Exh.P.W.2/5 and Exh.P.W.2/6 but the statement of the respondent denies that any such suit was filed by Khurshid Jehan against the petitioner and him. This is the contradiction of facts and documents which are placed on file." Learned High Court also dealt with this submission and found against the petitioners. With regard to the next submission as to non‑service of notice it may be stated that there is no provision in the Act that the transferee of a property should give a written notice to the tenant of the transfer of the property in his favour. The respondent in his evidence has stated that he orally informed the petitioners about the transfer and claimed rent from him. The two Courts below believed this evidence. Even otherwise, the petitioners in their written replies or at any subsequent stage offered or expressed their willingness to pay the rent to the respondent. Indeed, they persisted in denying the title of the respondent to the property and setting up the same in Mst. Khurshid Jehan Begum. Coming to the submission that the application should have been decided on merits, it may be observed that once the tenant denies the relationship of landlord and tenant between the parties and does not plead at all that he ever paid or offered to pay rent it is not necessary for the: Rent Controller to go into the merits of the case instituted for his eviction on the ground of default in payment of the rent as the tenant impliedly admits the default. Reliance is placed on Amanullah Khan v. Chotey Khan (1978 S C M R 14), Muhammad Yusuf v. Khalifa Asghar Hussain (1980 S C M R 886), Feroze Din v. Mst. Meraj Begum and others (1;)82 S C M R 11171 and Syed Mehboob Ali and other, v. Ghulam Rabbani and others 1985 S C M R

938. It may also be stated that by denying the relationship of landlord and tenant he does not forfeit the tenancy under the provisions of the Transfer of Property Act but his denial of landlord's title is relevant for the purpose of granting or refusing him an equitable discretionary relief when such denial is coupled with a manifest breach of his statutory duty for payment of rent under the Act or, as the case may be, under the Ordinance, (See Muhammad Aslam Shah v. Abdul Ghafoor (1979 S C M R 443) and Makhan Bano v. Abdul Ghani (P L D 1984 S C 17). Lastly, the eviction application was filed on two grounds if the respondent could succeed on the first ground it was not necessary for the Rent Controller to go into the second ground of requirement of the premises of the quarters for reconstruction. We, therefore, find no merits in these petitions and accordingly dismiss them. A.A./M‑675/S Leave to appeal refused.