1983 PLP 2328 (CLC)

The appellants are the legal representatives of deceased Gul Muhammad who was occupant of house bearing C. S. No. C/244, Chittal Chari, Hyderabad and who had been transferred the house in question by the Settlement Department. Respondent had issued notice dated 7th September, 1966 against appellants 1 and 3 and had filed Rent Application No. 4 of 1967 for their eviction from the house which was however dismissed by the Joint Civil Judge and Rent Controller, Hyderabad vide his order dated 22nd February, 1969 holding that there existed no relationship of landlord and tenant between the parties. Having come to know that the respondent had practised fraud on deceased Gul Muhammad for obtaining the transfer of the disputed house the appellants made representation to the Deputy Settlement Commissioner, Hyderabad who vide his order dated 28th September, 1969 cancelled the transfer documents of the respondent. The respondent bad however, challenged the aforesad order of the Deputy Settlement Commissioner in appeal which 'was dismissed on 2nd July, 1968 by the Additional Settlement Commissioner, Hyderabad. The respon dent challenged the orders of the Deputy Settlement Commissioner and the Additional Settlement Commissioner, before the Settlement Commis sioner Karachi who accepted the Revision Petition of the respondent vide his order dated 17th February, 1969 and restored the transfer documents in respect of the house in favour of the respondent. Appellant No. 1 had challenged the order of the Settlement Commis sioner in constitutional Petition No. 411 of 1969 but the same was dis missed on 25th September, 1973 by this Court. On 10th January, 1974 however the appellants had filed First Class Civil Suit No. 33 of 1974 against the respondent and the Settlement Authorities for getting declara tion that the transfer documents of the disputed house were obtained by the respondent .through fraud and misrepresentation and should therefore be cancelled. The suit however was dismissed by the First Senior Civil Judge, Hyderabad by his judgment and decree dated 30th November, 1976. The appellants went in First Civil Appeal No. 73 of 1977 which was eventually‑ dismissed by the First Additional . District Judge, Hyderabad vide his judgment dated 12th February, 1980. It is the case of the appellants that they are taking steps to challenge the aforesaid judgment in second Civil Appeal before this Court. During the pendency of the appellants First Class Suit No. 33 of 1974 the respondent in February, 1975 filed application for ejectment of the appellants who filed their joint written statement inter alia denying relationship of landlord and tenant between the parties on the plea that the question with regard to title to the property was sub judice. They further took the plea that there was no proper service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned Rent Controller Hyderabad by his impugned Judgment dated 27th July, 1977 ordered the eviction of the appellants from the disputed house and in appeal the learned First Additional District Judge, Hyderabad vide his judgment dated 12th February, 1980 confirmed the order of ejectment passed by the Rent Controller and hence this Second Appeal. The main grounds of appeal are as under :‑ That neither any issue on the point of default was framed nor the appellants were given opportunity to prove that they are not wilful defaulters.

2. That the appellants were yet pursuing their litigation with regard to the title to the property which was under a cloud till 12th February, 1980, and even now they are pursuing their remedy by taking steps to file Second Civil Appeal before the High Court.

3. That no proper notice under section 30 of the Act was served' on them.

4. That the impugned judgments are bad on the face of the record as the respondent had not pressed ejectment against appellant No.

2. With regard to ground No. 1 above, it is quite clear from a perusal of the record that, although the respondent in his application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 in para. 6 thereof contended that the appellants had made wilful default in the payment of rent after service of notice under section 30 of the Act on or about March, 1969, after the Settlement Commissioner, Hyderabad 'had upheld the transfer of house No. C/244 in favour of the respondent, and finally when the writ petition filed by the appellants was dismissed on 15th September, 1973 he did not claim any specified amount as arrears of "rent. During the arguments before this Court Mr. Kamaluddin Advocate for the respondent also made a statement from the bar that ,the claim, if any, towards rent is being given up. In Nisar Ahmed v. Nazar Muhammad (P L D 1974 Lah. 489), a decision of the Lahore High Court where ejectment application by the landlord against the tenant on the ground of default in payment of rent had been filed, but the tenant had denied relationship of landlord and tenant, the Controller, gave a finding that the relationship of landlord and tenant did exist, it was held that the Controller could thereafter straightaway order of ejectment without passing. any order under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The aforesaid decision was based on the reasoning that person denying relationship of landlord and tenant is estopped and precluded from pleading that since he has been found to be a tenant, he should be allowed to prove payment of rent. Mr. Khurshid Aiam Khan, learned counsel for the appellants however has drawn the attention of this Court to the decision in Nooruddin and another v. Muhammad Kassim and 6 others (P L D 1976 Kar. 921) in pointing out that the decision in Nisar Ahmed v. Nazar Muhammad of‑the Lahore High Court was dissented from. In the decision of this Court referred to Dorab Patel, J. (as he then was) while considering the aforesaid decision in Nisar Ahmed v. Nazar Muhammad regretted his inability to agree with the prin ciple laid down in that decision. It was observed as under :‑ "The question of the propriety of recording evidence on the question of a tenant's failure to pay rent must always depends on the facts and circumstances of a case. Thus, for example, if, in order to justify his admitted non‑payment of rent, a tenant raises a frivolous objection to the landlord's title, then the Rent Controller may be justified in ordering the eviction of the tenant because of his admission about the non‑payment of rent without recording evidence provided that the landlord drops his claim to the arrears of rent, but if the landlord does not drop his claim for arrears of rent evidence has to be recorded unless the quantum of rent has been admitted." In the instant case not only, as already stated, no specific arrears of rent were claimed but there is further the statement of the learned counsel for the respondent that the claim, if any, with regard to rent has been dropped. In view of the fact that the appellants never claimed to have paid as rent any amount to the respondent and further, in view of the fact that it is not necessary for awarding relief in the case to consider the rate and amount of rent payable, the impugned orders and judgments of the learned Rent Controller and the Additional District Judge cannot be taken exception to ? With regard lo ground No. 2, a reference is invited to the definition of ,landlord' as appearing in section 2 (c) of the Sind Urban Rent Restriction. Ordinance, 1959 which reads as under :‑ "(c) "landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who subjects any building or rented land in the manner hereinafter authorised and every person from time to time deriving title under a landlord." The aforesaid definition would indicate that it is not only the owner of the property but a person who is entitled to receive rent who could be considered as the landlord. The respondent produced the P. T. D. and other documents issued in his favour by the Settlement Authorities, and therefore it was for the appellants to show that he was in fact not entitled to receive the rent of the premises specially when, as will be discussed hereafter, the respondent had given legal notice about acquiring the ownership of the premises under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Incidentally, all the efforts so far made in the litigation, including the First Civil Appeal have gone against the appellants and the position remains the same as it was when the learned Rent Controller gave decision about the existence of the relationship of landlord and tenant between the parties. Under the circumstances at this stage, although the Memo. of Appeal mentions that a Second Civil Appeal is being filed on the point of title to the property, it cannot be said that the respondent is not entitled to receive the rent specially when, as already stated, a valid and proper notice about the transfer of ownership was given to the appellants by the respondent who claimed rent for the premises. If as stated they had filed second appeal in the matter concerning ownership of the premises they should have obtained order of stay with regard to the claim of rent by the respon dent. With regard to grounds Nos. 3 and 4, the same were raised before the learned Rent Controller as well as the learned Additional District Judge. It is a matter of fact whether notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was served on the appellants. It may here be stated that ground No. 4 is based on the fact that no such notice was served upon respondent No. 2 who is the daughter of deceased Gul Muhammad. However, a reference to section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 would show that such notice is to be given to any person in possession of the property, and there is evidence on record to show that respondent No. 2, though a legal representative of Gul Muhammad deceased, is a married daughter who was residing elsewhere with her husband and therefore was not in occupation of the premises. I, therefore, do not find any substance in this appeal which is accordingly dismissed, but under the circumstances no order is being passed with regard to costs. The, appellants are directed to hand over vacant possession of the premises o the respondent within two months from the date of this Judgment. K.M.A. Appeal dismissed.