1979 PLP 757 (CLC)

This second appeal is directed against an order for the ejectment of the appellant, Muhammad Hafeez from a shop owned by the first respondent Muhammad Suleman.

2. The first respondent purchased the shop from one Muhammad Ramzan. According to the first respondent the said Muhammad Ramzan leased out the shop to the second respondent, Sheikh Daulat Ali, but he (respondent No. 2) had inducted therein the appellant as a sub-tenant. It was also alleged by the first respondent that. he required the shop for his own occupation and for the purpose of reconstruction with a view to enhancing its value. The ejectment application filed by the first respondent was resisted by the appellant contending that it was collusive. He also is maintained that he got the shop on lease from Muhammad Ramzan and not from the second respondent. The averments of the first respondent that he needed the 'property in dispute for his own occupation and reconstruction were also refuted by the appellant. The Rent Controller, who heard the application, therefore, framed the following issues : 1 (1) Is this application collusive? (2) Whether respondent No. 2 has sublet the disputed property to respondent No. 1 ? (3) Whether the disputed property is required in good faith by the applicant for his personal use? (4) Whether the disputed property is bona fide required by the applicant for reconstruction and enhancement of its valuation ? (5) Is respondent No. 1 a direct tenant and not a sub-tenant under the applicant (respondent) No.

2. If so, to what effect ? (6) Relief.

3. On issue No. i, it was held by the learned Rent Controller that apparently the contention of the appellant (respondent No. 1 before the Rent Controller) was correct but the collusion of the first respondent (petitioner before the Rent Controller) with the second one (respondent No. 2 before the Rent Controller) was immaterial particularly when the appellant admitted himself to be the tenant. The learned Rent Controller answered issues Nos. 3 and 4 in the negative. As for the Issues Nos. 2 and 5, he decided them against the appellant but did not order his ejectment for the following reason (given by him during the course of discussion on issue No. 1 "So far as relationship of landlord and tenant between respondent No. 2 and the former owner is concerned, the petitioner cannot take the plea that the right to eject respondent No. 2 which was with the former owner, stands transferred to the petitioner. If at all this position is admitted to be so, even then the .petitioner cannot claim that right now as the former owner waived the exercise of that right during his ownership." Resultantly, the ejectment application was dismissed by the learned Rent Controller.

4. Feeling aggrieved by the order of the Rent Controller the first respondent went in appeal before an Additional District Judge, who reversed the finding of the learned Rent Controller on issue No.

4. As for issue No. 2 it was held by him that the respondent had sub-let the disputed shop to the appellant and then remarked :- "It may be mentioned that the learned Rent Controller decided this issue in affirmative but sill proceeded to reject the ejectment petition for the reasons not made clear in the impugned order." It seems that the learned Additional District Judge did not take care of the aforementioned reasons given by the learned Rent Controller that since the former landlord had waived his right to erect respondent No. 2 ground of subletting the first respondent, who purchased the shop in dispute from the original landlord, could not seek his ejectment on that ground. Anyhow, in view of his findings on Issues Nos. 2 and 4, the learned Additional District Judge accepted the appeal and directed the appellant to vacate the disputed shop. Hence this second appeal by him.

5. Learned counsel for the appellant has questioned the findings of the learned Additional District Judge on Issues Nos. 2 and 4 only. Issue No. 2. relates to the subletting of the disputed property by the second respondent in favour of the appellant. 'There is a concurrent finding of the two, tribunals below that the second respondent had sublet that shop in dispute in favour of the appellant. This finding is supported by the statements of Abdur Rashid (A. W. 2), Muhammad Ramzan (A. W. 3) and Sh. Daulat Ali, respondent No. 2, who appeared as his own witness. As indicated earlier, Muhammad Ramzan is the former owner of the disputed shop. In rebuttal, there is a solitary statement of the appellant to the effect that he got the shop on lease directly from Muhammad Ramzan and not from the second respondent, Sh. Daulat Ali. Muhammad Ramzan, however, did not support him. It is also the case of the first respondent that the appellant used to pay Rs. 70 of rent for the shop. in dispute to Abdur Rashi (A. W. 2) who was Munshi of the second respondent and that the second respondent, after retaining Rs. 10 himself, paid Rs. 60 to Muhammad Ramzan. Abdur Rashid made statement in support of the above plea of the first respondent. It was also conceded by the appellant that he used to pay rent to the said Munshi. In the circumstances, I find nothing wrong with the concurrent finding of the two tribunals below that it was the second respondent and not the original owner of the disputed shop who had brought the appellant into the said shop.

6. It was contended by the learned counsel for the appellant that even if the second respondent had sublet the shop in dispute to the appellant. that happened during the time when Muhammad Ramzan was the landlord of the said shop and since Muhammad Ramzan did not seek eviction of the appellant and respondent No. 2 on the ground of subletting of the shop, it could nut be pressed into service by the first respondent for ejecting the appellant from the said shop. Learned counsel for the appellant did no cite any law or authority to support his contention. According to the definition of the word "landlord" as given in clause (c) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance, the landlord includes "every person from time to time having title under a landlord." Thus, after the purchase of the shop in dispute, the first respondent replaced Muhammad Razman as a landlord of the principal tenant, namely, respondent No. 2, who had inducted the appellant into the shop as a sub-tenant. Since the first respondent stepped into the shoes of the original landlord all rights vesting in the original landlord vis-a-vis the appellant and the respondent No. 2 qua the shop in dispute became available to the first respondent and he could exercise the same just as it could be done by the original landlord. The only exception to this rule is that the new landlord, could not seek ejectment of the tenant on the ground of default without serving him with a notice under section 13-A of the said Ordinance. It would, therefore, follow that the cause of action which accrued to the original landlord on the basis of the subletting of the shop in dispute by the second respondent enured for the benefit of first respondent also and, therefore, he could ask for ejectment of the second respondent and the appellant on the score of that; cause of action. If a contrary view is taken it would amount to permitting a tenant to play havoc with the rented property on the eve of its transfer by its original owner by causing damage to the property or inducting sub-tenants therein without running the risk of being thrown out of it for ;: indulging in such acts because after the transfer of the property the original owner would not be interested in hi- ejectment and the new one would be confronted with the plea that since the said act were committed before : heir had become owner of the property he could not make use of them for' getting rid of the tenant. It was with a view to meeting such situations that the framers of the law were wise enough to incorporate the above definition of the word "landlord" in clause (c) of section 2 of the said Ordinance. I am, therefore, unable to agree with the learned counsel for the appellant that the first respondent could not seek eviction of the appellant on the ground that the second respondent had sublet the disputed shop to the appellant.

7. I also see no force in the argument of the learned Rent Controller that as the original landlord had not proceeded against the appellant and respondent No. 2 on the ground of subletting, he had waived his right to do so. There is no evidence on the record to show that the original landlord bad done anything positive to waive the said right. Mere inaction on his part does not amount to waiver specially when no period of limitation ha.., been prescribed by law for seeking ejectment of a tenant on the plea subletting. The learned Rent Controller was, therefore, not right in overlooking the subletting involved in this case by saying that it was waived by the original landlord.

8. The next issue to be considered is issue No. 4 which relates to the reconstruction of the property in dispute, It is in the town of Narowal, District Sialkot. The first respondent examined the Overseer of the Municipal Committee, Narowal, Muhammad Saleem Naeem (A. W. 1) who deposed that the first respondent had submitted a plan for the reconstruction of the disputed property and the same had been approved by the Municipal Committee. Exh. A. 1 is a copy of the site plan and Exh. A. 2 is a copy of the letter of the Municipal Committee, Narowal, permitting the first respondent to reconstruct the property in question. Muhammad Ramzan (A. W. 3) also stated that the first respondent wanted to rebuild the shop ink question with a view to enhancing its value. Appearing as his own witness ~D the first respondent, Muhammad Suleman also made a statement to the same effect. There is no rebuttal of the aforesaid evidence. It was ruled in! Haji Maula Dad Haji Syed Sardar Khan (P L D 1972 Quetta 39) that even if a building is not in a dilapidated condition the landlord can reconstruct it for the purpose of enhancing its value. No exception can, therefore, be taken to the finding recorded by the learned Additional District 'Judge that the property in dispute was, in good faith, required by the first respondent for the purpose of reconstruction.

3. In view of what has gone above the learned Additional District Judge was perfectly justified in ordering the ejectment of the appellant. His appeal, therefore, fail-, and is dismissed with costs. The appellant is, however, allowed two months' tune to vacate, the disputed shop. F. M. A. Appeal dismissed.