1979 PLP 118 (CLC)

AFTAB HUSSAIN, J.-This judgment will dispose of S. A. Os. Nos. 602, 603, 604, 605, 606, 607, 608 of 1976 and 440 of 1978 since they involve a common question of law whether the Rent Controller in a case where the relationship of landlord and tenant is denied by the respondent can pass an order of his eviction straightaway on ground of default after deciding the above point in favour of the landlord. These cases have been referred to this Special Division Bench for consideration of this point in view of difference of opinion in Nisar Ahmad v. Nazar Muhammad (P L D 1974 Lah. 489) on one hand and Nooruddin and another v. Muhammad Qasim and others (P L D 1976 Kar. 921) on the other.

2. The first seven appeals arise out of a consolidated judgment passed by Ch. Inayat Ullah Cheema, Additional District Judge, Lahore, on 17th July, 1976, dismissing the similar number of appeals of the tenants against the order of their eviction dated 30th March, 1976, from portions of the disputed property in their possession. S. A. O. No. 440 of 1978 has been filed to challenge a similar order of Syed Muhammad Zaffar Babar, Additional District Judge, Jhang, dated 24th June, 1978.

3. Property No. S-73-R-6 known as 3-Begum Road, Lahore, was a part of Ahata Teerath Ram which had four houses bearing Nos. S-73-R-4, S-73-R-6, S-73-R-8 and S-73-R-10. There were a number of servant quarters in the Ahata which were occupied by the appellants but they were not transferred to them. They were transferred as part of house No. 73-R-6 to Syed Mohsin Shah. Since the appellants' claim was that each of them was entitled to the transfer of the servant quarter in his possession, they filed appeals and revisions before the Settlement Authorities but without any suc cess. The litigation before the Settlement Authorities `terminated with an order (Exh. P. 11) passed by Ch. Muhammad Ilyas, Settlement Commissioner. Lahore on the revision petitions of the appellants and transferees of other houses, all of whom were aggrieved against the transfer of servant quarters to Syed Mohsin Shah. All these revision petitions were dismissed by the Settlement Commissioner on the 14th February, 1966 (Exh. P. 11). The revision petitions of the appellants were dismissed on a finding that. none of the premises in their possession were separately numbered by the Corporation, or could be treated structurally as outhouses.

4. The appellants filed Writ Petition No. 49618 of 1967 to challenge the order of the Settlement Commissioner but the same was dismissed in limine by the High Court on 23rd October, 1958 (vide copy of order Exh. P. 12). In the meanwhile, P. T. D. Exh. P. 13 was issued in the name. of Syed Mohsin Shah.

5. Syed Mohsin Shah served notices under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, upon all the appellants to which replies were sent by them through Mr. Rab Nawaz Niazi. Advocate. After the death of Syed Mohsin Shah, the present respondents served notices under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, upon all the appellants and copies of these notices were also served upon Mr. Rab Nawaz Niazi, their counsel. Despite the service of these notices by the respondents no rent. was paid by the appellants. The respondents, therefore, filed seven applications for ejectment on 19th July, 1975, on ground of default in the payment of rent from 1963 to the date of application despite the service of statutory notice and also for causing wilful damage to the property which materially impaired its value and utility.

6. All the appellants contested these applications on the ground that the properties in their respective possession were part of Property No. S-73-R-8 and not of S-73-R-6 and denied the relationship of landlord and tenant between the parties. They also denied the service of notices under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959. They disputed the rate of rent but did not deny the allegation of non-payment of rent, they stated that the respondents were not entitled to claim arrears beyond three years from the date of filing the petition.

7. The following preliminary issues were framed by the learned Rent Controller :- (1) Whether the respondent was served with a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the predecessor of the petitioners ? (2) Whether the respondent was served with a notice under section 13-A of Ordinance No. VI of 1969 by the petitioners ? (3) Whether the relationship of landlord and tenant exists between the parties ? The Rent Controller found all tile three issues against the appellants and in favour of the respondents. Relying upon Nisar Ahmad v. Nazar Muhammad (P L D 1974 Lah. 489) he found it unnecessary to frame any issue on the question of default and directed the eviction of the appellants. However, he allowed them one month's time to vacate the premises.

8. The findings on all the issues were challenged before the learned Additional District Judge who maintained them by a detailed order and dismissed the appellants' appeals.

9. The facts in S. A. O. No. 440 of 1971 are that Plot No. 2691 XII M. Jhang Saddar with a Kotha over it was originally transferred to the appellants by P. T. O. dated 7th April, 1966, but this transfer was admittedly cancelled on account of their failure to deposit the price. It was then auctioned and was purchased by Sharif Ullah Khan. But the transfer in his favour was also cancelled on account of his failure to deposit the balance price of the property within time. It was, thereafter, transferred to the respondent, under Scheme No. VIII framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and a P. T. D. was issued in his name on 15th May, 1975. The respondent duly served a notice as required by section 30 of the Act (Exh. P. 6) upon the appellants. Ultimately, he filed an application for their ejectment on ground of default which was contested on the ground of misdescription of the property, and non existence of relationship of landlord and tenant. Two issues covering these pleas were framed and were found against the appellants and since no rent had admittedly been paid by them, the Rent Controller directed their ejectment on 27th February, 1978, but allowed them one month's period for vacating the premises in dispute. This order was maintained in appeal by the learned Additional District Judge on 24th June, 1978. The appellants were, however, allowed two months' time to vacate the premises.

10. The questions decided in all these appeals are concluded by findings of fact. Mr. Nawab-ud-Din Mohmood, learned counsel for the appellants, made a half-hearted attempt to challenge the findings but he was not able to point out any instance of misreading of the record or ignoring of any material evidence. It appears clear that notices under section 30 were duly served on 15th June, 1567, on all the appellants while notices under section 13-A of the Ordinance, 1959, were sent to them on 31st October, 1974, but the appellants refused to receive them. They were thus duly served. We have already referred to order (Exh. P. 11) passed by the Settlement Commissioner from which it is clear that the servant quarters in possession of the appellants were transferred to Syed Mohsin Shah, predecessor-in-interest of the respondents, as part of house No. S-73-R-6, notwithstanding the opposition of the appellants who had throughout been litigating before the Settlement Authorities and had ultimately filed Writ Petition No. 496/R of 1967 which was dismissed in limine by the High Court on 23rd October, 1968. The Permanent Transfer Deed, a copy of which is Exh. P. 13, is another proof of the transfer of Property No. S-73-R-6 in favour of Syed Mohsin Shah, along with the quarters in dispute. There can be no doubt that the appellants are statutory tenants of the quarters in their respective possession and their plea about the non-existence of relationship of landlord and tenant or that the quarters in dispute were part of House No. S-73-R-8 was false to their knowledge. It has never been the case of the appellants that they had ever paid any rent either to the respondents or their predecessor. In fact during the arguments Mr. Nawab-ud-Din Mahmood conceded that the default is there. To say the least, the default of the appellants in the payment of rent and their insistence on the plea of non-existence of relationship of landlord and tenant despite this long drawn litigation was contumacious.

11. Mr. Nawab-ud-Din Mahmood, who appeared for the appellants in S. A. O. 440 of 1978, also, did not challenge the findings of fact before us. In that case also the non-payment of rent was admitted. In fact, Mst. Hashmat Bibi one of the appellants, had conceded that the P. T. O. in favour of the appellants had been cancelled. In these circumstances, in that case also, the non-payment of rent to the respondent and insistence on denying the relationship of landlord and tenant could not be justi fied.

12. The learned counsel for the appellants, however, submitted that in all these cases the default was not wilful and in view of their circumstances the discretion under section 13(2) should have been exercised in favour of the appellants. He also submitted that the Rent Controller should first have passed an order under section 13(6) and then should have proceeded to frame issue on default, According to him the order of ejectment in the absence of this procedure was illegal. He placed reliance upon Nooruddin and another v. Muhammad Qasim and others (P L D 1976 Kar. 921), Muhammad Hussain v. Muhammad Bashir and others (P L D 1974 Lah. 446) and also referred to Chief Commissioner, Karachi v. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45) and Mehdi Hassan v Ghulam Muhammad (P L D 1964 Lah. 648).

13. The learned counsel for the respondents, on the other hand, drew our attention to Muhammad Ismail v. Israr Ahmad (P L D 1961 Lah. 601), Nisar Ahmad v. Nazar Muhammad (P L D 1974 Lah. 489), Ishrat Hussain and another v. Subedar alias Suba (1975 S C M R 11) Muhammad Siddique v. Naseer Ahmad (P L D 1976 Lah. 1078), A. G. Sikandar v. Haji Abdul Hamid (1978 S C M R 85), Aman Ullah Khan v. Chotey Khan (1978 S C M R 14), Chan Pir Shah v. Haji Muhammad Tahir (1972 S C M R 283), Ghulan: Rasool v. Din Muhammad (P L D 1967 Lah. 665) and Sikandar Khan v. Muhammad Amin (P L D 1979 Kar. 59).

14. The case of Abdul Ghafoor v. Ahmad Kunhi (P L D 1969 S C 424) is not relevant since the only point decided in that case was that an order of the Rent Controller under section 13(6) determining the rate of rent and arrears remains in force only till a final order is passed by the Rent Controller and the earlier order merges at that stage in the final order.

15. Now there are a number of authorities in favour of the view taken by the learned District Judge and the Rent Controller.

16. It is established law that if a question is raised before the Rent Controller on behalf of the respondents against existence of relationship of landlord and tenant, it is incumbent upon the Rent Controller to decide that question before proceeding to decide other issues since the Rent Controller's jurisdiction to entertain a petition under the West Pakistan Urban Rent Restriction Ordinance depends upon an adjudication of this question. It was held by a Full Bench in Akhtar Ali v. Altafur Rehman (P L D 1963 Lah. 390) approving Muhammad Ismail v. Israr Ahmad and Karam Bibi v. Mir Muhammad Hassan (P L D 1962 Quetta 67) that a distinction exists between an issue as to the vary existence of the authority to adjudicate, and those other issues which arise as between the parties and which are to be determined by the authority that has the power to resolve them. An issue concerning the very existence of the power to decide, is not an issue between the parties, though the existence of that power may be asserted by on; party and denied by the other. It is in reality, an issue between the Court itself and the party over whom the Court is asked to exercise power. Tine issues as to the right or liabilities of the parties, on the other hand, affect only the parties and arise only as between them. They leave the Court unaffected, If, on whatever ground it may be, one of the parties to a proceeding under section 13 claims that those proceedings cannot validly be sustained or proceeded with under section 13, it will be incumbent upon the Rent Controller to decide that issue before he can exercise any of the powers mentioned in that section . ... .. The determination of the issue whether the proceedings are "under this section", in the context, must precede the "framing of the issues", or passing of an order under section 13(6).

17. In Muhammad Ismail v. Israr Ahmad, a case decided by a Division Bench of the High Court of West Pakistan which, as stated above, was approved by the Full Bench it was held that the words "before issues are framed" in section 13(6) should be taken only to refer to the issues which may arise between a landlord and his tenant but cannot be said to include a question as to the very existence of the tenancy. It was, however, observed that ,.he Ordinance has been promulgated to provide a number of safeguards for the tenants and to restrict the rights of ownership of the landlord. It accordingly postulates that no tenant will by falsely denying the relation of landlord and tenant deprive himself of those safeguards and that is why there is no express provision in the Ordinance, or in any of its predecessor enactments for adjudicating upon such a controversy.

18. A note of warning was also made that the risk of adopting a false plea of this kind by a tenant is manifest. For example, in an action for eviction for non-payment of rent the tenant will be precluded from pleading and leading evidence to the effect that he was not in default as the pleas that he was not a tenant under the petitioner and that he had been paying rent to him on due dates, will be mutually destructive.

19. In Mehdi Hassan v. Ghulam Muhammad, Muhammad Iqbal, J., while agreeing with the above proposition about the risk of adopting false pleas held that each case should be decided on its own facts. It was held that if the allegation of default is not denied the tenant cannot be permitted to plead payment. The tenant's appeal was, however, allowed in that case since an issue of competence of the Attorney to file the application for ejectment was necessary to be decided. It was further pointed out that the rate of rent in that case was also disputed. It was observed that "it was for the respondents, therefore, to show that tile rent so claimed was the same which the appellant was liable to pay before the transfer or it was in accordance with the latest assessment of the Municipality or local Authority. This question needed determination and if it had been proved that the rent demanded was more than the one which the respondents were entitled to charge, the appellant could in fairness invoke the direction of the Rent Controller in his favour because the non-payment of the rent by itself does not result in the forfeiture of the tenancy. In the event he holds that a tenant is a defaulter, it does not become obligatory on the part of a Rent Controller to order his ejectment. He can, however, minimise the scope of enquiry by examining the parties under Order X, rule I by eliciting from them the circumstances which they or any one of them may put forth to justify a direction of the Rent Controller whether or not to order an ejectment. If the default is proved and there is no dispute as to the rent which the tenant is liable to pay for each month and the tenant is also not able to examine the default on reasonable grounds, the Rent Controller can proceed forthwith to order his ejectment". In Ghulam Rasul v. Din Muhammad in which the order of eviction passed after repelling the objection about relationship of landlord and tenant was held justified by the High Court, it was observed that the dictum laid down in the case of Mehdi Hassan must be confined to the facts of that case. Another case in which a different view :vas taken is Muhammad Hussain v. Muhammad Bashir and others. It was a case in which the Rent Controller had dismissed the application on a finding that no relationship of landlord and tenant existed. The learned District Judge set aside the finding on appeal and ordered ejectment of the tenant. he was held by the High Court that "There was no justification in law for him to have ordered the ejectment of the appellants. The petitions for ejectment could be decided by the Rent Controller, who was required to pass an order in the first instance under subsection (61 of section 13 directing the petitioners to pay the arrears of rent and the future rent and then to decide the case on merits." Reference was made to the case of Abdul Ghafoor v. Ahmad Kunhi and it was held that according to that case the Supreme Court had held that such an order could be passed only by the original Court. In Nisar Ahmad v. Nazar Muhammad however, a different view was taken by one of us. It was held that a person who does not acknowledge the relationship of landlord and tenant between the parties has no right to plead after finding in this regard is given against him for any further inquiry, under the said provision. He is estopped by his conduct to plead that since he has been found to be a tenant, he should be allowed to prove the payment of rent. Passing of any order under section 13k6) of Ordinance VI of 1959 in such a case will be a futile exercise of the jurisdiction vesting in the Rent Controller. It may further prolong the agony of unnecessary litigation because the ultimate result will be the ejectment of the tenant for non-payment of the due rent. In Muhammad Siddique v. Naseer Ahmad it was held that the principle of forfeiture of tenancy on account of false and contumacious denial of certain established and admitted facts qua relationship of landlord and tenant had correctly been applied by the Court below . The tenant's appeal was therefore, dismissed. Another case which, as stated above, was relied upon by the learned counsel for the appellants, is Nooruddin and another v. Muhammad Qasim and others. The learned Judge observed in that case that

"The question of the propriety of recording evidence on the question of a tenant's failure to pay rent must always depend 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 the arrears of rent, evidence has to be recorded unless the quantum of rent due has been admitted, there could be cases in which the failure to pay rent was justified ; therefore, in such cases it would be the duty of the Rent Controller to record evidence, and it was so in both the instant cases." The learned Judge, however, disagreed with the dictum in Nisar Ahmad v. Nazar Muhammad though the case before him was entirely different. It was a case where the title of the respondents landlords had been under the cloud and it was, therefore, held that the appellants were justified in withholding the payment of rent until the respondents had proved their title. But in another case the High Court of Sind acted upon the principle decided in the case of Nisar Ahmad v. Nazar Muhammad and cited that case with approval Sikandar Khan v. Muhammad Amin. In view of the frivolous and deliberate denial of the title of the landlord the order of ejectment without framing an issue of default was held to be justified in that case.

20. The learned counsel for the respondents as stated above, referred to several cases of the Supreme Court of Pakistan. It may, however, be clarified that the case of Chan Pir Shah v. Hafiz Muhammad Tahir and A. G. Sikandar v. Haji Abdul Hamid are not relevant. The facts are not clear from the Supreme Court judgment in the case of Chan Pir Shah. We have, however, checked the file of the High Court in S. A. O. No. 456 of 1970. It appears from the judgment in that case that after deciding the question of relationship of landlord and tenant in favour of the landlord the Rent Controller had framed an issue about default and had answered it against the tenant. This case is not, therefore, of any assistance.

21. In the case of A. CT. Sikandar also after deciding the question of the title of the respondent as a landlord the Rent Controller had passed an order under section 13(6) and had ultimately struck off the defence of the tenant under that provision of law. That case also is not helpful.

22. There are, however, two cases Amanullah Khan v. Chhotey Khan and Ishrat Hussain and others v. Subedar alias Suba (1) which are helpful. The facts in the latter case are that after deciding the issue of relationship of landlord and tenant in favour of the landlord, the Rent Controller held the service of notice under section 30 to be irrelevant in view of the allegation of sub-letting and of causing damage to the property. He further held that the question of validity of the notice would be considered on merits while dealing with the point of default. He, thereafter, passed an order under section 13(61, directing the tenant to deposit arrears of rent as well as the future monthly rent. In an appeal filed by the tenant against the order of deposit, the learned District Judge held that the notice served by the landlord under section 30 was legal and it was not necessary for the Rent Controller to frame a separate issue on the question of default as it was an admitted position on behalf of the tenant that he had not paid any rent to the landlord since the transfer of the property to him. The tenant fled a second appeal in the High Court but before this appeal was decided the Rent Controller had struck off the defence of the tenant for non-compliance with the order of the Rent Controller under section 13(6). The second appeal from the interim order was allowed in the High Court and the case was remanded to the Rent Controller for determining the validity of the notice and for fresh calculation of arrears of rent. Since the tenant had been dispossessed from the property in execution of the final order passed during the pendency of the appeal, it was further directed that the possession should be restituted. In an appeal against this order, the Supreme Court held that the only question in the case was about the validity of the notice which was challenged on the ground that excessive rent was demanded. The notice was accordingly held to be valid and to this extent they order of remand was found to be untenable. Since the tenant had not paid any rent after the service of the notice it was found that "no occasion arose for remanding the case` to the Rent Controller for determining whether there had been default on the part of the tenant". The order of remand was, therefore, set aside. It appears from the judgment that though the non-compliance with the order passed under section 13(6) of the Ordinance also one of the grounds for setting aside the order of remand, but equal emphasis was laid on the point that the tenant had not paid any rent from the time of service of notice of transfer and demand of rent. In the other case of Amanullah Khan v. Chhotey Khan the Rent Controller had held that the relationship of landlord and tenant' did exist between the parties but he found against the landlord on the question of service of notice under section

30. The Additional District Judge, in appeal, held that a valid notice had been served and remanded the case to the Rent Controller for further proceedings. That order was assailed by a second appeal in the High Court which maintained-the finding of service of a valid notice and further held that since the tenant had disputed the relationship of landlord and tenant and had not paid the rent, it would be, an exercise in futility to allow the Rent Controller to proceed with the case when the petitioner was estopped from proving that he had not committed default in the payment of rent. The Supreme Court refused to grant permission to appeal, in view of the admitted position that the petitioner before their Lordships had defaulted in the payment of rent for he did not accept the respondent as his landlord. It was held that on this view of the matter it would not have served any purpose to remand the case for the issue of default could not have been disputed. The attention of their Lordships was drawn to the divergence of opinion in these three cases, i.e. Muhammad Hussain v. Muhammad Bashir and others, Nisar Ahmad v. Nazar Muhammad and Nooruddin and another v. Muhammad Qasim and others. It was observed that it will not be necessary to examine the validity of the reasons given for and against the view.

23. It is clear that opinion is almost uniform at least on the point that' where the relationship of landlord and tenant is disputed contumaciously) and a frivolous objection is taken to the landlord's title. it is not necessary to take any further proceedings once the default is admitted. In the case of Mehdi Hassan v. Ghulam Muhammad the said proposition set up in Muhammad Ismail v. Israr Ahmad was agreed upon. In Nuruddin and another v. Muhammad Qasim and others it was pointed out that if for example in order to justify the admitted non-payment of rent a tenant raises a frivolous objection to the landlord's title the Rent Controller may be justified in ordering the eviction of the tenant because of his admission about -the non. payment of a part of the rent. The only example is the Case of Muhammad Hussain where it was held that it was still necessary for the Rent Controller to pass an order under section 136). In that case the Rent Controller had dismissed the application for ejectment on the ground that no relationship of landlord and tenant existed but the District Judge set aside the finding and ordered ejectment on the ground of default, It was, however, held that it was necessary to pass an order under section 13(6) which could have been passed only by the Rent Controller. We would, however, respectfully follow the preponderant view.

24. In this case we have already held that the appellants had unjustifiably raised the issue of existence of relationship of landlord and tenant and their default was contumacious. In the seven cases of 1976 the dispute about the validity of the transfer in favour of Syed Mohsin Shah had been settled up to the year 1968 between the appellants and Syed Mohsin Shah. The appellants had also been served with notice under section 30 in 1967 but they did not pay any rent. After the death of. Syed Mohsin Shah, they were served with notice, under section 13-A of the Ordinance of 1959 and yet they did not pay any rent. In these circumstances, their objection that the property in their possession was different from the property transferred to Syed Mohsin Shah was frivolous and contumacious and was raised only to escape ejectment, for sc long as possible. The, case is, therefore, covered by the Supreme Court authorities as well as by the preponderant view. .

25. In the same manner, one of the appellants in the case of 1978 had admitted that the transfer in favour of the appellants had been cancelled. It was established that the property had been transferred later to the respon dent and he had also served a notice under section

30. If despite this the appellants raised the objection about the title of the landlord on the ground that they were themselves transferees of the property, the only inference would be that they had raised this plea unscrupulously to escape, for so long as possible, The consequences of their default. In these circumstances, all these appeals are governed by almost uniform principle which was also acted upon by the Supreme Court. All the appeals are, therefore, liable to be dismissed.

26. Faced with this situation, the learned counsel for the appellants submitted that the appellants had not really denied the relationship of landlord and tenant. What they meant to say was that this relationship could not come into existence in the absence of service of statutory notice as required by section 30 and in these circumstances the appellants had not wilfully defaulted but had throughout been acting bona fide.

27. This argument is untenable. The appellants had disputed the description of their property only to plead that the property had not been transferred to Syed Mohsin Shah and as such no relationship of landlord and tenant existed. Section 30 in its first subsection declared a person in possession of the property to be tenant of the transferee thereof. The provisions about notice were introduced either for the purpose of determining default in the payment of rent or the point of time from which six years' guaranteed period of tenancy would start. The service of notice was not made a condition precedent for creation of the relationship of landlord and tenant. It is not, therefore, correct to say that the plea of non-service of notice was the prime reason of the denial of relationship of landlord and tenant.

28. We may now consider the correctness of some principles laid down in the cases relied upon by the learned counsel for the appellants. Apart from certain observations, the case of Mehdi Hassan v. Ghulam Muhammad and Nooruddin and another v. Muhammad Qasim and others are clearly distinguishable. In the first case, the question of maintainability of the petition at the instance of a person who claimed to be an Attorney raised a serious issue between the parties. It was rightly held that an order of ejectment could not be passed without decision of that issue. Similarly, in the second case the cloud on the title of landlord justified non-payment of rent and a case for exercise of discretion in favour of tenants was made out. But, there are some observations that the principle, enunciated in the case of Muhammad Ismail v. Israr Ahmad or in the case of Nisar Ahmad v. Nazar Muhammad will not apply to cases where there is a dispute of rate of rent. There are also observations about the legal requirement of passing order under section 13(6).

29. We do not agree that where excessive rent is demanded and the question of rate of rent is raised, it would be necessary in spite of the admission about the non-payment of rent to determine the rent actually payable and then consider whether the default was wilful or not. There are several authorities in which it has been held that a notice under section 30 is not invalidated merely by demand of excessive rent. [Mian Rehmat Ali v. Khadeja Hakeem (P L D 1967 Lah. 29), Mazhar Ali Azhar v. Inzarul Islam (P L D 1971 Lah. 104) and Ishrat Hussain v. Subedar alias Suba (1975 S C M R119)]. The demand of excessive rent cannot absolve a tenant of the consequences of default too, since it is incumbent upon him to pay to the landlord at least whatever, rent he was paying or bound to pay to the Settlement and Rehabilitation Department before the transfer of the property to the landlord. If a person does not pay even that rent, he can neither plead that he was not a defaulter nor that non-payment of rent was, bona fide. We cannot agree with the proposition that in every case in which the plea of rate of rent is denied, issue of default or any other issue should be framed by the Court in order to determine whether the discretion' should be exercised against the tenant or against the landlord.

30. In the case of Muhammad Hussain v. Muhammad Bashir and others it was held that it was necessary to pass an order under section 13(6) and since such an order could be passed only by the Rent Controller as held in Abdul Ghafoor v. Ahmad Kunhi the order of the District Judge was not justified.

31. We are also not in agreement that the order under section 13(6) must be passed even in a case where no issue arises. Section 13(6) provides that on the first date and before framing of issues an order may be passed by the Rent Controller provisionally assessing the rent if the same be disputed and direct the tenant to deposit the same. The language of the subsection shows that this provision would apply where issues arise between the parties and it is necessary to frame these issues. Where no issue arises, we do not see how this principle would apply. Supposing in a case the tenant appears in Court and admits that he is liable to eviction, is it necessary to first pass an order under section 13(6) 7 The answer would obviously be in the negative. Similarly, if in such a case he disputes the amount of rent but agrees to the passing of an order of eviction, it is clear that in such a case it would not be necessary to pass an order under section 13(6) and an order of ejectment can be passed straightaway.

32. The abovementioned are the instances of direct admission. There can be no different; in principle if there is an implied admission to this effect.

33. Though the term `issue' not defined in the Ordinance of 1959, but it arises (Vide Order XIV, rule 1, C. P. C.) when a material proposition of fact and law is affirmed by one party and denied by the other. If there is no denial, no issue would arise. Though the definition of `issue' in Order XIV, rule 1, C. P. C. is not applicable to the Ordinance of 1959 but the use of the word `issue' proves that it is in the ordinary sense that it has been used section 13(6). Thus where no issue arises, the matter can be decided on admission whether express or implied. It would, therefore, follow that if any matter is admitted no issue would require to be framed on that matter.

34. Similarly, if a case for decree is made out in the plaint and there is no denial of the allegations therein, the suit may be decreed (vide order XII, rule 6). It is on this principle that it has now been provided that if summons have been duly served and the defendant does not appear the court may pass a decree without recording evidence (Order IX, rule 9, C.P.C.) Similarly, it has been provided in Order VIII, rule 10, C. P. C. rule. that where any party from whom a written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him. One reason for this is that if the defendant was inclined to deny any allegation he would have contested the suit and filed the written statement. This is treated to be analogous to tacit admission.

35. This principle may be applied with advantage to cases under section 13 of the Ordinance of 1959 also. In these circumstances, when the party does' appear before the Court and does not deny any allegation which may) necessitate framing of an issue between him and the applicant, no issue can arise and consequently the provisions of section 13(6) would not be' attracted. We are of the view that Nisar Ahmad v Nazar Muhammad laid down the correct law.

36. We may, however, enter a caveat. There maybe cases where on the one hand the relationship of landlord and tenant is denied and on the other there is unimpeachable documentary evidence of payment of tender of rent as distinguished from mere oral evidence. In such cases, the principle of approbate and reprobate may not apply since on a better statement of the respondent the Rent Controller may be able to determine the matter of relationship of landlord and tenant and proceed to pass an order under section 13(6) and frame an issue of default. There may therefore be exceptions to the rule decided in the present case and each case should, therefore, be decided in its own merits. We may also explain that in some cases reference has been made to the forfeiture of tenancy by denial of landlord's title which in general law is good ground for eviction of the tenant. But this is not a ground of ejectment under section 13 of the Ordinance of 1959. The rule enunciated in the cases referred in this judgment is not based upon forfeiture but on the principle of estoppel against proof of payment of rent or principle of simultaneous approbate and reprobate.

37. These appeals are without force and are dismissed with costs. Appeal dismissed.