P L D 1984 Karachi 441 (PLP)

This appeal is directed against the order dated 25-11-1979 passed by the learned Rent Controller, Mirpurkhas, in Rent Application No. 14/77. The brief facts leading to the filing of the above rent application are that the respondent filed the above rent application on 17-8-1977 against the appellant for ejectment in respect of a house comprised of one room on the ground of default in payment of rent for the period commencing from May, 1976. The above application was resisted by the present appellant and inter alia it was averred in his objections to the above rent application that the respondent was a worker of People Party and got allotted some plots in Thomesabad (Hussainabad), fraudulently and under undue influence of the Peoples Party and that these plots belonged to Co-parceners of Ramchand Manjimal Family, who were non-evacuee and that the plots had been illegally allotted to the applicant. It was further averred that factually the appellant had constructed the house over the plot of Ramchand Manjimal Family in the year 1953 and that he was in possession to the knowledge of Ramchand Manjimal Family who were non-evacuee and that the room which he had taken on rent from the respondent was vacated by him after 2 years in or about April 1973, and that the aforesaid house was in possession of Nathi Qassab. The learned Rent Controller in view of the denial of the relationship framed a preliminary issue and recorded evidence. The respondent examined himself as P. W. 2, P. W. I Jawaid an Inspector from the Settlement Depart­ment Exh. 19 and P. W. 3 Munir Ahmed a shopkeeper. He also produced a number of documents including a detch issued by the Settlement Department Exh.

20. The Deputy Settlement Commissioner's order, dated 22-9-1976 was passed upon the miscellaneous application filed by the appellant against the respondent. Whereas the appellant examined himself as D. W. 1 Exh. 33, D. W. 2 Haji Bundu and D. W. 3 Muhammad Hasbim Exh. 36 and produced rent deed Exh.

34. The learned Rent Controller after hearing the parties by his order dated 18-8-1979 held that there was relationship of landlord and tenant and directed the appellant to deposit the arrears of rent for the period commencing from May, 1976 to July, 1979 at the rate of Rs. 20 per month amounting to Rs. 780 before 15th of September, 1979 and likewise the future rent at the same rate before 5th of every succeeding month. It seems that the appellant did not comply with the above rent order. The learned Rent Controller upon an application of the respondent by his order dated 25-11-1979 ordered the striking off the appellant's defence and directed him to hand over the possession within 8 months. The appellant being aggrieved by the above,order has filed the present appeal. 2. (a) Mr. M. Sharif, learned counsel for the appellant in support of the above appeal has urged as follows :- "(i) That the evidence as to the period of possession of the appellant was not properly considered by the learned Rent Controller and, therefore, the finding of the learned Rent Controller on the question of relationship is not sustainable. (ii) That on the proved facts, the transfer of the plots in favour of the respondent by the Settlement Department is void. (iii) That even if it is to be held that the tenancy agreement Exh. 28 was executed by the appellant in favour of the respondent, it was void as it was executed under a mistaken view of the fact. (iV) That since the title of the respondent was under dispute and doubtful, it would have been proper on the part of the learned Rent Controller either to have dismissed the rent application or to have stayed the hearing till the adjudication of the question of title by a competent Court." (b) On the other hand Mr. S. S. Hamid, learned counsel for the respondent has contended as follows :- "(i) That since the appellant is against the order of striking off the appellant's defence, the appellant cannot re-agitate the question of relationship. (ii) That there was ample evidence on record to prove that the appellant was the respondent's tenant in respect of the disputed premises. (iii) That the question of validity of the transfer of the plots of land could not have been agitated by the appellant before tile learned Rent Controller. (iv) That even otherwise, there was sufficient material before the learned Rent Controller to show prima facie the transfer of the plots in favour of the respondent by the Settlement Department was legal. (v) That the tenancy agreement was not executed by the appellant on the basis of any alleged mistaken view of the fact. (vi) That since the appellant failed to show a bona tide dispute as to the title of the respondent, the learned Rent Controller has acted in accordance with law in deciding the question of relationship." 3. (a) Adverting to the question, whether the appellant is entitled to agitate the question of relationship in the .present appeal, which has been filed by the appellant against the order striking off his defence, it may be observed that Mr. S. S. Hamid has relied upon the case of Mst. Alchtar Jehan Begum and 4 others v. Muhammad Azam Khan (P L D 1983 S C 1), in which the Honourable Supreme Court of Pakistan was pleased to hold that a Rent Controller for the purpose of passing an order under subsection (6) of section 13 of the late West Pakistan Urban Rent Restriction Ordinance, 1959 is not required to determine the quantum or rate of rent finally if the same are in dispute, but is required to determine such amount "approximately" and that the consequence of non-compliance of an order under section 13(6) of the late Ordinance is a summary disposal of the case without taking any further proceeding ipso facto on the basis of such non-compliance by striking off defence and passing order of ejectment. (b) Mr. M. Sharif, learned counsel for .the appellant has addressed elaborate argument tenaciously on the above question and has contended that the above Supreme Court case has no application to the present case as in the above case, the question before the Honourable Supreme Court was not, whether an appellate Court in an appeal arising out of an order of striking off defence for non-compliance of a tentative rent order can examine the question of relationship decided by the learned Rent Controller against the appellant tenant. He has referred to the following cases in support of his contention that since the present appeal is an appeal against the final order of ejectment, the appellant is entitled to press into service the ground that the question of relationship was not correctly decided by the learned Rent Controller, and, therefore, the order of striking off defence is not sustainable. (i) Akhtar Ali Pervez v. Altafur Rehman (P L D 1963 (W. P.) Lah. 390), in which a Full Bench of the erstwhile High Court of West Pakistan at Lahore held that in case a tenant objects to the jurisdiction of the learned Rent Controller on account of non-existence of relationship, !he learned Rent Controller should not pass the order for depositing of the arrears of rent without first deciding the question of relationship. (ii). Messrs Kandawala & Co. Ltd., Lahore v. Sh. Rashiduddin and others (1969 S C M R 720). The question in the above case was, whether an appeal was competent under section 15 of the late West Pakistan Urban Rent Restriction Ordinance, 1959 against the finding of the learned Rent Controller on the question of relationship of that of landlord and tenant. It was held that no appeal is provided against such a finding and in fact no appeal lies even in a civil matter when a civil Court decides a preliminary issue as to jurisdiction. (iii) Ibrahim v. Muhammad Hussain (P L D 1961 S C 119), in which it was held by the Honourable Supreme Court that there is a sharp contrast between a right to sue and a right to file an appeal and that a suit of civil nature can be instituted independently of any statute unless it is specifically barred by some statute but the right of appeal is a creation of statute not to be assumed unless expressly given by the statute. It was further held that under section 15 of the late W. P. U. R. R. Ordinance, 1959 an appeal is competent against the orders falling under sections 4, 10, 12 and 13 of the aforesaid Ordinance and not against an interlocutory order of provisional character. It was also held that fragmentary decisions are not warranted and that there is no appeal against the finding on the question of relationship between the parties. (iv) Abdul Qayyum v. Muhammad Ishaq (P L D 1967 Lah. 1025). In the above case the facts were that the tenant had raised a plea in an ejectment proceedings filed under the late W. P. U. R. R. Ordinance, 1959 that he was not served with a requisite notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The above preliminary point was decided by the learned Rent Controller against the tenant, who filed an appeal in the High Court against the above finding. While the above appeal was pending in the High Court, the learned Rent Controller ordered striking off defence of the tenant for non-compliance of the tentative rent order. The question arose, whether the tenant was obliged to file another appeal against the above order or whether the setting aside of the order, by the High Court on the question of notice had nullified the subsequent order for striking off defence. In that context a learned Single Judge of the erstwhile High Court of West Pakistan at Lahore observed as follows "10.-I may mention that I heard this appeal on the 22nd of February 1967, and had indicated that I would accept the appeal and remand the case back to the Rent Controller for striking a preliminary issue regarding the service of notice. However, while dictating the judgment I discovered that subsequent to the passing of the impugned order, the Rent Controller had, on the 8th of April, 1964 ordered the ejectment of the appellant for his failure to deposit the rent for the month of April, 1964 before the 5th of March, 1964. The appellant deposited the rent one day later, i.e., on the 6th of March, 1964. This fact was not brought to my notice during the arguments and, there­fore, I fixed this case for rehearing on the 28th of February, 1967, in order to find out as to what would be the effect of my order of remand on the subsequent order against which no appeal has been preferred. The learned counsel for the appellant submitted that since the order from which the subsequent order flowed had been found to be without jurisdiction, the subsequent order itself will be rendered a nullity and there was no need for the appellant to take any formal proceedings to have it set aside. He in this connection, referred to the case of Yousaf Ali v. Muhammad Aslam Zia, where the Supreme Court has observed that if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders together with superstructure of rights and obligations built upon them, must fall to the ground, because such orders have as little legal foundation as the void order on which they are founded." (v) Mrs. Feroze Aslam v. Muhammad Akhtar (P L D 1978 Lah. 488). The facts in the above case were that a landlord filed a writ petition against .an order passed by a learned Rent Controller, whereby he set aside his earlier an ex parte ejectment order and decided to proceed with the matter on merits. It was contended before the Lahore High Court that since there was no appeal against an interlocutory order under the late W. P. U. R. R. Ordi­nance, 1959, a writ petition was competent. Muhammad Afzal Zullah, J., (as he then was) while dismissing above petition in limine observed that the petitioner would have the right to challenge the above interlocutory order in appeal against the final order. (vi) Abdur Rehman v. Haji Mir Ahmad Khan and another (P L D 1983.S. C 21), in which the facts were that an ejectment case was filed against the petitioner before a learned Rent Controller by the landlord. The tenant resisted the same and inter alia raised the plea that there was no relationship of landlord and tenant and, therefore, the rent proceedings were not competent. The learned Rent Controller decided the above preliminary point against the petitioner/ tenant, who filed a writ petition challenging the above finding. The writ petition was dismissed by a Division Bench of this Court. The petitioner filed a petition for special leave to appeal in the Honourable Supreme Court, which was dismissed. While dismissing the above petition it was observed that writ jurisdiction of a High Court could be exercised only on proof of non-availability of adequate remedy. It was further held that since the appeal was competent against the final order, the writ petition was rightly dismissed. It was also observed that piecemeal decision on pleas of jurisdictional nature and similar nature is not warranted. (vii) Mr. Sharif has also referred to the case of Muhammad Azam Khan v. Akhtar Jehan Begum and S others (1981 C L C 1251), the case of Syed Khadim Hussain Abedr v. Mst. Geti Ara Begum (1984 C L C 68), in which it was held by a learned Single Judge of this Court sitting singly, that a tentative rent order passed by a Rent Controller without taking inta consideration the version of the tenant was not in accordance with law and the order of striking off defence would not be sustainable in appeal. In my view the above two cases have no direct bearing on the point in issue. (c) The ratio decidendi of some of the above-cited cases seems to be that if no appeal is provided against an order on a preliminary point/issue, an aggrieved party may agitate the question of correctness in an appeal filed against a final order. I am inclined to hold that a tenant in an appeal against an order for striking off his defence can agitate the question that the preliminary issue on the question of relationship was not correctly decided by the Rent Controller as it involves jurisdictional fact and as no appeal is provided against a finding on the question of relationship.

4. Having decided the above question now I intend to deal with the merits of the contentions raised by Mr. M. Sharif, learned counsel for the appellant. It was vehemently urged by M. Sharif that the evidence on record clearly proves that the appellant was in possession of the premises in question several years prior to the date of the alleged tenancy agreement between the appellant and the respondent. In this regard he has referred to the testimony of P. W. 3 Munir Ahmed, who was examined by the respondent in order to prove Exh. 28, the tenancy agreement, executed by the appellant to which he was a witness, particularly to his statement in his cross-examination that the appellant was residing in the disputed quarter 5 years before the occupa­tion by him the shop of the respondent as a tenant i.e. about 1 S years from the date of recording of the statement (i.e. statement was recorded on 16-10-1978). He has also referred to the statement of D. W. 2 Haji Bundu and D. W . 3 Muhammad Hashim. The former has deposed that when he came at the premises in 1,,54, the appellant was already to possession of the house in dispute, whereas the latter has stated that he was residing in Hussainabad since 1908 and that the appellant was already there before his coming to Hussainabad. It may be observed that the case set up by the appellant in his written statement was that he had taken a quarter on rent from the respondent only for about two years which he vacated in or about April, 1973 and that the house in dispute was constructed by him in 1953 on the plot of Ramchand Manjimal Family. The appellant has not produced any documentary evidence to indicate that factually he bad constructed the above house. On the contrary the evidence brought on record by the respondent in the form of testimony of P. W. 1 Jawaid an Inspector of the Settlement Department Exh. 20, the sketch prepared by the Settlement Department and proved by the above witness, the Deputy Settlement Commissioner's order, dated 20-9-1976 holding that the room in dispute i.e. house is part of the property of the respondent, the rent-deed dated 16-10-1972 Exh. 28 executed, belie the version of the appellant. The appellant has failed to bring on record any convincing evidence to prove the fact that factually he vacated the house in or about April, 1973, which he admittedly had taken on rent from the respondent. I am, therefore, in agreement with the learned Rent Controller that factually the house in dispute was let out by the respondent to the appellant and, therefore, there were relationship of landlord and tenant.

5. As regards the second contention of Mr. Sharif that the transfer of the plots by the Settlement Department in favour of the respondent was void, it may be observed that he has referred to the statement of P. W. I Jawaid, the Inspector of the Settlement Department, who has inter alia stated that "I have dealt with the cases of Ramchand Manjimal only to the extent of Naraindass. Without record I can't say it I have dealt with the files of other members of Ramchand Manjimal family. It is a fact that Ramchand Manjimal is a non-evacuee family, but since their properties have not been excluded from compensation pool the transfer was made". On the basis of the above statement of the above witness it was vehemently urged by Mr. Shard, learned counsel for the appellant that since Ramchand Manjimal family was non-evacuee, the plots to question could not have been transferred to the respondent by the Settlement Department. It is an admitted position that Ramchand Manjimal or anybody from his family has not come forward to challenge the transfer in favour of the respondent, nor anybody from the above family appeared in the above rent case to support the appellant's above assertion nor it is the case of the appellant that he has been approached by the above Ramchand Maniimal family for the payment of rent. The permanent transfer in favour of the respondent issued by the Settlement Department has not been cancelled. I am, therefore, of the view that merely on the basis of the above statement of P. W. 1 Jawaid, the learned Rent Controller could not have held that the transfer in favour of the respondent was void. Even otherwise, once the appellant was inducted into the premises by the respondent as his tenant prima facie it was not open to him to dispute the title of the respondent before the Rent Controller and that too without producing any cogent evidence. Furthermore, I am inclined to hold that the learned Rent Controller could not have decided the question of legality of the transfer.

6. Reverting to the 3rd contention of Mr. Sharif that the above tenancy agreement Exh. 28 was executed under a mistaken question of fact, it will suffice to observe that nothing has been brought on record to indicate that there was any such mistaken question of fact as to vitiate the above tenancy agreement. The above contention of the learned counsel for the appellant is in contradicting to the appellant's plea in his objections before the learned Rent Controller that he had constructed this room on the plot of Ramchand Maujimal family in 1953. There could not have been any mistaken view of fact which could have vitiated tenancy agreement in presence of the above averment. .

7. Adverting to the last contention, it may be observed that since there was a dispute as to We title of the respondent, the proper course for the learned Rent Controller would have been to dismiss the rent application or to have stayed the above rent proceeding particularly since the appellant had filed Suit No. 351/79 for challenging the title of the respondent, which is pending, it may be observed that he has referred to the judgment of Rehmatullah V. Ali Muhammad and another (1983 S C M R 1064), in which the Honourable Supreme Court has inter alia observed as follows :- "What is permissible for Courts of general jurisdiction in the field of fairplay, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and leave the landlord to a remedy in a civil Court, first and then again approach to the Controller. Even when tenant has not succeed before the Controller to create the required `reasonable' doubt but has convinced him that his plea is not frivolous and/or vexatious, but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher. Court can do the same." In my view, the above observations of the Honourable Supreme Court are not applicable to the present case so the appellant has failed to bring on record sufficient material, which could have created a reasonable doubt as to the title of the respondent as to warrant dismissal of the rent application or staying of the rent proceeding. I am also inclined to hold that mere filing of a civil suit by a tenant to challenge the title of his landlord will not divest the jurisdiction of a Rent Controller to proceed with a rent case or to decide the question of relationship in favour of the landlord.

8. The appellant had committed the default of the aforesaid tentative rent order dated 18-8-1979 inasmuch as no rent was deposited in compliance with the above order. It is an admitted position that till today no rent has been deposited by the appellant in compliance of the above order. The learned Rent Controller, therefore, had no option but to order the striking off defence of the appellant. The order under appeal seems to be in consonance with law. No infirmity in the above order has been pointed out by the learned counsel for the appellant. The above appeal has no merits and, hence, it is dismissed with no order as to, costs. However, I allow to the appellant two months time from today to vacate the premises in question. M. Z. M. Appeal dismissed.