1990 PLP 1146 (CLC)

Firstly, that the Respondents Nos.1 to 4 earlier tiled four ejectment petitions against the sons of the petitioner, namely Akhtar Mahmood, Nasim Mahmood, Abdul Waheed and Muhammad Mahmood. The said respondents denied the relationship and after some proceedings the landlords proceeded to pray for withdrawal of these petitions with permission to file fresh applications. The necessary permission was allowed by the learned Rent Controller vide orders dated 11‑11‑1984 and 25‑11‑1984 subject to payment of Rs.100 as cost. However, the present petition was filed against the petitioner alone. It is added that the institution of the ejectment petition was kept top secret and the landlords did their best to have an ex parte ejectment order; Secondly, that the petitioner has filed a suit for declaration, therefore, it is desirable to suspend the ejectment proceedings till the decision of the suit. It was added that the petitioner has already concluded his evidence while the defendants are yet to conclude their evidence. In this behalf reliance has been placed on the cases reported as Province of Punjab v. Abdul Ghani P L D 1985 SC 1, Rehmatullah v. Ali Muhammad and another 1983 S C M R 1064; Thirdly, that to establish relationship of landlord and tenant evidence of ' very high order is required while in the present case there is no cogent evidence and the Courts below have based their orders on the copies of PTI, which are irrelevant documents; Fourthly, that the purpose of Rent Restriction Ordinance was to provide a special forum and to restrict the ejectment of the tenants. It being a special enactment, therefore, it will cover only those matters, which are clearly and specifically provided for. It is added that since neither the petitioner was `tenant' nor respondents were `landlord', as per definitions of these terms as incorporated in the Rent Restriction Ordinance, therefore, all the proceedings were coram non judice; and Lastly, that the application of petitioner to produce additional evidence was illegally and wrongly rejected by Respondent No.6.

5. On the other hand the learned counsel for contesting respondents has argued that the landlords purchased this property through registered sale‑deed from Syed Iqtidar Haider Shah and Shaheena Jabcen and thereafter proceeded to serve the petitioner and his sons with notices under section 13‑A of the Rent Restriction Ordinance but as they did not pay any rent, therefore, the respondents were constrained to initiate the ejectment proceedings. The learned counsel for contesting respondents, in reply to the argument advanced on behalf of the petitioner that earlier four petitions were initiated has submitted that in fact earlier five petitions were filed. The fifth petition was against the present petitioner as is clear from Annexure `A' with the writ petition. It is added that since the sons of the petitioner denied their possession in their own name and right, therefore, this time petition was filed against the present petitioner alone. It is added that the allegations as to the alleged efforts of his clients to secure ex parte ejectment order are without basis and substance. The reply, to the argument that ejectment proceedings are liable to be stayed in view of the pendency of the suit for declaration in the Civil Court, is that the proceedings in the civil suit have no bearing on the proceedings in the ejectment petition. Moreso when the ejectment is sought on the basis of a registered sale‑deed. Reliance in this behalf is placed on the cases reported as Ghulam Muhammad v. Mst. Rashida Hamid and others 1989 S C M R 1763, Bashir Ahmad v. District Judge, Faisalabad 1988 S C M R 1241, Abdul Razzaq and another v. Shukria Parveen and 11 others 1988 S C M R 1343 and Mst. Aurangzeb Bibi v. Akhtar Hussain 1988 S C M R 1350.

6. The learned counsel for contesting respondents on merits has argued that his clients in order to prove the issue, in addition to the documentary evidence has examined A.W.1 Syed Ghayur Hussain, who was the general attorney of the vendors and clearly deposed as to payment of rent by the petitioner. Similarly, A.W.2 Muhammad Faazil, who was the Munshi (Clerk) of A.W.1 stated that he has been collecting rent from the petitioner and other tenants of the building from 1958 to 1978. He further referred to the statement of A.W.4 as to the payment of rent and statement of R.W.1 Abdur Rashid to show that Muhammad Faazil A.W.2 was serving as Munshi. It is added that even if the copies of PTI are excluded from consideration still this evidence was sufficient to answer the issue in favour of the landlords. The learned counsel for the contesting respondents argued that copies of PTI are admissible in evidence per se and have a presumptive value at least as to the entries made therein. In this behalf reliance is placed on the case reported as Muhammad Aslam and another v. Sardar Begum 1989 S C M R 704 and Abdul Rehman and 7 others v. Board of Revenue 1989 S C M R

384. In the end it is submitted that the appraisal of the evidence is not possible in Constitutional jurisdiction. In this behalf reliance is placed on the cases of Taj Muhammad and others v. Muhammad Iqbal and others 1986 S C M R 276, Mannoo Industries Ltd. v. Addl. Secy. and others 1987 S C M R 1910 and Muhammad Ali v. Mumtaz Hussain Lali P L D 1989 Lah. 187. 7. 1n the end it was argued, that the application of the petitioner for production of additional evidence was rightly rejected by Respondent No.6 because it was only an effort to delay the proceedings otherwise the documents sought to be produced were just duplication of the record. It is submitted that the plaint in the suit was just repetition of the plea in the written reply to the ejectment petition while written statement submitted by landlords was practically copy of the ejectment petition. It is added that the statements of the said witnesses having already been recorded independently in the ejectment petition, there was no occasion for bringing the statements recorded in the civil suit on the file of the ejectment petition. The statements even otherwise were not admissible. It is concluded with the submission that even the statements of the witnesses were just repetition of their statements in the ejectment petition.

8. Replying to the other point raised by the learned counsel for the petitioner, the learned counsel for the respondents submitted that object of Rent Restriction Ordinance is not to do away or bar the institution of the ejectment petitions against the tenants. It is only to restrict the same. The argument is clarified with the submission that now a tenant can only be ejected as per grounds specified in section 13 of Urban Rent Restriction Ordinance whereas previously, the ejectment could be effected just after serving notice under section 106 of Transfer of Property Act. 1t is concluded with the argument that so long the tenant behaves well he can stay and on the other hand the interest of the landlord has also been properly protected by the legislature while enumerating the grounds of ejectment. 1t is, therefore, clear that the Rent Restriction Ordinance is meant to safeguard the rights of both landlord and tenant and it cannot be presumed even for argument's sake that legislature wanted to prefer one set of citizens over the others at their cost.

9. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record. Now I proceed to deal with the arguments of the learned counsel for the petitioner with reference to the counter‑arguments of the learned counsel for contesting respondents.

10. The first point argued in support of the petition was that ejectment petition for whole of the premises was filed against the petitioner alone while earlier petitions were filed against four sons of the petitioner in respect of the same premises. The reply on behalf of the respondent was that since the sons of the petitioner denied independent possession, therefore, petition was filed only against the head of the family, the petitioner. 1t was added that 5 ejectment petitions were filed which included a petition against the petitioner. The learned counsel in support of the arguments has referred to Annexures to F/3. The objection advanced on behalf of the petitioner is falsified by the record. It is without any merit.

11. In the second place it was argued that since civil suit for declaration is pending, therefore, it is desirable to stay the ejectment proceedings. In this behalf learned counsel for the petitioner has referred to two judgments, which do not support the arguments advanced on behalf of the petitioner.

12. In the case of Mufti Abdul Ghani, the Hon'ble Supreme Court held that Rent Controller has to make distinction between genuine, well founded, vexatious, frivoluous and without foundation disputes about the title. The present dispute, as per record of the ejectment petition, is without foundation. Even the exact nature of the alleged transfer in the name of the petitioner is not clear. Similarly, the case of Rehmat Ullah is not applicable because the petitioner on the one hand has failed to create the required reasonable doubt before the Rent Controller as to the title of the property and on the other hand he has proceeded to file an independent civil suit. Now whatever is the result of the civil suit the parties will be bound by the same.

13. On the other hand learned counsel for the landlords have argued that pendency of civil suit does not warrant automatic stay of the ejectment proceedings. It is added that the ejectment petition is to succeed on its own merits and to be decided on the basis of the evidence produced by the parties. The arguments are concluded with the submission that the petitioner did not make such prayer before the Rent Controller. The same is mala fide. In any case, he could have moved the Civil Court for injunction restraining the landlords from ejecting him. This having not been done, it is too late in the day to delay the ejectment proceedings. The cases relied on by the learned counsel for the petitioner are not relevant because in both the cases the Honourable Supreme Court held that question of title was not clear and the landlord should get the same clarified from the Civil Court and then initiate ejectment proceedings. The learned counsel for contesting respondents, on the other hand, referred to the cases as noted above. In the case of Bashir Ahmad, Hon'ble Supreme Court declined the request of the learned counsel for the tenant for making observation that the suit of the petitioner regarding title shall not be affected by the orders passed in the litigation on rent side while in the case of Abdur Razzaq and others, the petition was dismissed with the observation that the statement of counsel of the petitioner was without prejudice to his clients' right to pursue the other remedy now pending. 1n the case of Mst. Aurangzaib in spite of the pendency of the civil suit in respect of the title of the property the ejectment proceedings were not stayed and Civil Petition for Leave to Appeal by the tenant was dismissed by Honourable Supreme Court. It is, therefore, clear that there is no hard and fast rule. The proceedings in ejectment petition cannot be stayed the moment there is a civil suit.

14. The previous ejectment petitions were filed on 30‑7‑1981 while the present petition was filed on 11‑2‑1985 whereas suit for declaration was filed by the petitioner on 18‑3‑1985. The petitioner in spite of the cloud on his alleged title did not proceed promptly to establish his claim. The plea of the petitioner, as already noted is that part of the property in his possession was orally gifted to him by Aslam Ali Shah, its owner more than 30 years back. There is nothing on record to support this assertion. If the ejectment proceedings or ejectment petitions are stayed on such a prima facie weak challenge then with the present moral fiber it is easily conceivable that ejectment proceedings will come to a stand still position everywhere. There is no merit in the argument that ejectment proceedings are liable to be stayed in view of the pendency of the civil suit.

15. The other argument of the learned counsel for the petitioner was that to establish the relationship of landlord and tenant evidence of very high order was required and copies of PTI were not relevant. On the other hand, it was argued by the learned counsel for contesting respondents that for argument's sake, if it is held that copies of P T I were not relevant still there was clear and strong evidence on record to prove the issue. The learned counsel in this behalf has rightly referred to the statements of A.W. Syed Ghayur Hussain who appeared as. A.W.1. He was general attorney of the vendors and he has stated that he used to receive the rent from the petitioner as well as‑the other tenants of the building. He is not related to the present landlords and they have failed to shake his credit in the cross‑evidence. Then comes the statement of Muhammad Faazil who was the Munshi (Clerk) of the previous owners. He has categorically stated that he had been receiving rent from the petitioner as well as other tenants for a period from 1958 to end of 1978. He has no connection whatsoever with the contesting respondents. The fact that he was working as a Munshi is admitted by Abdur Rashid R.W.1. A.W.4 Sh. Noor Ahmad was also a tenant of a portion of the same house from 1970 to 1980. He also clearly deposed that the petitioner was a tenant and they have been paying rent to Muhammad Faazil A.W.2. These are all independent and natural witnesses and their statements were sufficient to decide r the issue in favour of the landlords.

16. The petitioner has tendered in evidence Annexure R 10 (copy of assessment for the year 1951‑52 by L.M.C.), a copy of the same has been placed as Annexure LL on the file of this writ petition. The name of the petitioner is clearly mentioned as one of the occupants and not owner whereas according to the stafement of R.W.1 Abdur Rashid the original owner Aslam Ali Shah died in 1951 while R.W.2 Abdul Hafeez has stated that petitioner was living as owner and Aslam Shah never received rent from him. The main witness produced by the petitioner to prove the gift is Nasir Ali Shah R.W.3. He deposed that Aslam Shah gave the property to the petitioner at the instance of his brother taking pity on the petitioner. He has not said a word as to gift. He has however, stated that Aslam Shah was his relative and died 2/3 years after the partition of the Sub‑continent. The payment of rent after death of Aslam Shah was denied for want of knowledge. Similarly, the payment of rent to Aslam Ali Shah was also denied for want of knowledge. All these depositions were made by the witnesses of the petitioner in examination‑in‑chief. It is also admitted by R.W.7 Nacem Mahmood attorney and son of the petitioner that neither any property tax was paid by the petitioner all these years nor ownership was got entered in the official record nor he challenged the ownership of the vendors namely, Syed Iqtidar Hussain Shah and Shaheena Jabeen. It is relevant to mention here that Aslam Ali Shah died issueless, therefore, son and daughter of his brother became the owners of the property. They got their names incorporated in the Excise and Taxation record. The petitioner even has not impleaded these persons as defendants in his civil suit. The evidence of the petitioner does not inspire any confidence. It is too weak, vague and bristles with inherent contradictions and was rightly brushed aside by the Courts below. The issue was rightly held proved.

17. The learned counsel for the respondent‑landlords submitted that the petitioner did not enter witness‑box and this should heavily weigh against him. It is submitted that the petitioner was the best witness of the alleged gift in his favour and also of his status in the premises. He referred to the case of Feroze Khan and another v. Mst. Waziran Bibi 1987 S C M R

164. The Honourable Supreme Court held that the High Court was justified in drawing adverse inference against Adalat Khan and Feroze Khan for pot appearing in the witness box in support of their assertions. The petitioner instead of entering the witness box produced his son Naeem Mahmood who is only 41 years' old. It means that he was not even born when the petitioner occupied the house and was infant at the time of alleged gift. The argument of the learned counsel has merit

18. It is true that copies of PTI all alone are not sufficient to establish the relationship of landlord and tenant but they are good piece of corroborative F evidence especially when the same pertains to a period before the dispute arose between the parties. Copies of PTI are admissible per se. The learned Rent Controller was, therefore, wrong to exclude them from evidence. The same should have been exhibited. In the present case the learned Rent Controller adopted two different standards for both the parties. Copy of PTI tendered by the petitioner was exhibit marked as R 10 while the same copy when tendered by the landlords was placed on record as mark `A' while the other copies were also placed as mark 'B' & `C'. 19: Now coming to the last point that the purpose of Rent Restriction Ordinance is to restrict the ejectment of tenants of Urban Immovable Property in the Province. The argument is clearly misconceived and without any merit. The legislature has only regulated the relationship of landlord and tenant and provided for a machinery for ejectment of the tenants and other allied matters. IG The legislature by promulgation of the Rent Restriction Ordinance on the one hand has permitted the ejectment of a tenant only on the specified grounds, on the other hand it has also kept in view the interest of the landlord. The grounds of ejectment as specified in section 13 clearly support this view. The Ordinance is meant for the safeguard of the rights of both landlord and tenant.

20. The result is that there is no force in this petition. The same is dismissed with costs. A.A./K‑243/L Petition dismissed