1980 PLP 1141 (CLC)

Ch. Muhammad Abdullah for Respondents. Date of hearing : 20th October, 1979, This second appeal has been filed by a tenant, namely, Abdul Rashid. His ejectment from a house was sought by the respondents, Muhammad Akhtar Siddiqi and another, on the ground that the house was needed by the first respondent, Muhammad Akhtar Siddiqui for his own occupa tion. According to the respondents, the first respondent is the owner of the house. The second respondent, namely, Abdul Ghafoor Siddiqui joined the first respondent in making the ejectment application because, accord ing to the respondents, the former had been realising rent from the appellant on behalf of the latter. The appellant resisted the ejectment application inter alia on the ground that the relationship of landlord and tenant did not exist between him and the first respondent. It, was also maintained by the appellant that the said respondent did not need the house for himself. On this, the Rent Controller framed a preliminary issue to find out if the appellant was in possession of the house as a tenant under the first respondent and, after recording the parties' evidence thereon, held that the relationship of landlord and tenant did exist bet ween them. He, then, without going into the question of personal need, ordered the appellant to vacate the house. On this, the appellant went in appeal before the District .fudge but without success. Hence this second appeal.

2. Learned counsel for the appellant contended that after his objec tion that the relationship of landlord and tenant did not exist between the appellant and the first respondent had been repelled, the Rent Con troller should have enquired into the plea of personal requirement raised by the landlord and as that was not done, the order of ejectment passed against the appellant was not sustainable.

3. On the other hand, learned counsel for the respondents maintain ed that after the appellant was' found to be in possession of the disputed premises as a tenant, which fact had been denied by him, the Rent Controller could straightaway order the ejectment of the appellant without holding a probe into the question of the personal need of the first respondent. According to the learned counsel for the respondents, the denial of tenancy by the appellant had entailed forfeiture of the tenancy in his favour and, therefore, he could not claim inquiry into the question of personal need. In this connection, he placed reliance on section 114 of the Transfer of Property Act, 1882, and a number of cases reported as Nisar Ahmed v. Nazar Muhammad (P L D 1974 Lah. 489), Hafiz Muzafar Ahmed Khan v. Dr. Habibul Haq and another (1968 S C M R 793) and Amanullah Khan v. Chotey Khan (1978 S C M R 14).

4. While commenting on the arguments advanced by the learned counsel for the respondents, learned counsel for the appellant submitted that the precedent cases cited by the former involved the plea of default and therefore, they had no bearing on the present case in which ejectment has been ordered on the ground of personal requirement. As regards the provisions of section 114 of the Transfer of Property Act, it was argued by the learned counsel for the appellant that the said provisions were not applicable to rent cases because according to subsection (1) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, such cases are to be decided in the light of the provisions of the Ordinance only without reference to any other law. He relied on Ghulam Muhammad Khan Lundkhor v. Safdar Ali (P L D 1967 S C 530), Abdul Khaliq Qureshi v. Saeed Hassan Shah and 3 others (1979 C L C 118), Major Feroze Din Khan and others v. Sheikh Muhammad Amin (P L D 1967 Lah, 966), Malik Muhammad Salim and another v. Mst. Ruqaya Begum and 3 others (1978 S C M R 348) to support his contention.

5. As for the authorities relied upon by the learned counsel for the parties, in the case of Haji Muzaffar Ahmad Khan it was observed by their Lordships of the Supreme Court, while dealing with an appeal against an order passed by the erstwhile High Court of West Pakistan, Karachi Bench, Karachi, that the High Court was justified in upholding the finding of the Courts below that the denial of relationship of landlord and tenant by the tenant resulted in the forfeiture of the tenancy. It is not known whether in the case under report the ejectment of the tenant was sought on the ground of default or on any other ground. Also, the said authority relates to a civil suit decided by a Subordinate Judge and not an applica tion under the Ordinance. It is, therefore, not possible to follow the view expressed in the case of Haji Muzaffar Ahmed Khan while deciding the case in hand.

6. In a subsequent case of Ghulam Muhammad Khan Lundkhor, which was a second appeal against an order of ejectment on the ground of default. It was clearly observed by their Lordships of the Supreme Court that the provisions or the principle of section 114 of the Transfer of Property Act could not be invoked in an ejectment case under the Ordinance. The relevant observations of their Lordships are as follows :

. ....the appellant has in the facts of the present case been shown to be in default. There is no further scope, therefore, of granting him any relief. The provisions of the Transfer of Property Act do not in terms apply nor can the principle of section 114 thereof be invoked on equitable principles, for, equity cannot override the law. This is not a case of forfeiture at all but of granting to a tenant a relief which goes beyond what the meaning of the words in the statute strictly import. This obviously cannot be done."

7. It was also observed in the case of Major Feroze Din Khan and others that a case falling under section 13 (2) (i) of the Ordinance is to be decided on the basis of the provisions of section 13 (2) of the Ordinance and the tenant cannot rely on the provisions of section 114 of the Transfer of Property Act.

8. As for the cases of Nisar Ahmed and Amon Ullah Khan, they are distinguishable on facts inasmuch as they relate to ejectment orders made on the ground of default. The respondents before me had, however, sought ejectment of the appellant not on that ground but on the plea of personal need. Moreover, even in the said two cited cases the orders of ejectment were not made on the basis of section 114 of the Transfer of Property Act. This view of mine is supported by the following observations appearing in the case of Abdul Khaliq Qureshi in which the said two cases were also discussed :

' 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."

9. There is a good reason behind the rule laid down in the cases of Nisar Ahmed, Aman Ullah Khan and Abdul Khaliq Qureshi that where the ejectment of a tenant is sought on the ground of default but he denies the relationship of landlord and tenant between the parties, the moment the said relationship is established his ejectment can be ordered without hold ing any other inquiry. A perusal of the definition of the word "tenant" as given in clause (1) of subsection (2) of section 13 of the Ordinance would show that any person paying rent to another for the premises occupied by the former would be treated as a tenant under the latter. In view of these provisions, the plea of the denial of tenancy and that of the payment of rent are mutually destructive inasmuch as if a person is not a tenant he need not pay any rent, and if he pays the rent he cannot be heard to say that he is not a tenant under the person to whom the rent is paid. Therefore, in ejectment proceedings based on the plea of default if the respondent denies the tenancy, the Rent Controller would be perfectly justified in passing an order of ejectment on the ground of default as soon as the tenancy is established. Such an order cannot, however, be made by him in a case in which ejectment is sought on the ground of personal need.

10. It has been laid down in subsection (3) of section 13 of the Ordnance that where ejectment of a tenant is prayed for on the ground of personal need his ejectment can be ordered by the Rent Controller if he is satisfied that the landlord, in good faith, needs the premises in dispute. According to subsection (2) of section 13 of the Ordinance, even when the ejectment is sought on the ground of default, before the tenant can be directed to vacate the premises let out to him the Rent Controller has to satisfy himself that the tenant had not paid or tendered rent which is alleged to have become due. In the latter case, the Rent Controller would be satisfied about the default as soon as the tenant denying the tenancy, without alleging the payment or tender of rent in respect of which he is alleged to have committed default, would be found to be a tenant because by not pleading payment or tender of rent the tenant had, by implication, admitted his default. In the former case, however, the mere tact that the tenant had made an unsuccessful attempt to deny that tenancy would not warrant a conclusion that the premises in dispute, were needed by the landlord, in good faith, for his own occupation in such a cafe therefore., after holding that the relationship oil landlord and tenant existed between the parties, the Rent Controller will have to record the evidence of the landlord to satisfy himself about the genuineness of his need. This is a requirement of law, namely sub section (3) of section 13 of the Ordinance, and unless that is fulfilled then ejectment of the tenant cannot be ordered with reference to the provisions of any other law, including the Transfer of Property Act, because according to subsection (1) of section 13 of the Ordinance, the ejectment of a tenant cannot be ordered except in accordance with the provisions of the. Ordinance.

11. One more reason for which the provisions of section 114 of the Transfer of Property Act are of no avail to the appellant is that they have nothing to do with an ejectment case involving the plea of personal need on the landlord. That section runs as follows :

"Where a lease of immovable property has been determined by for feiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may; in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture ; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred." A bear reading of these provisions would reveal that they are appli cable only to those cases in which the tenant has committed default in the payment of rent. Since the ejectment of the tenant in the instant case was prayed for not on the ground of default but on that of personal need, section 114 has no bearing on the case in hand.

12. The upshot of the foregoing discussion is that in a case where eviction of a tenant is sought on the ground of personal need, the provi sions of section 114 of the Transfer of Property Act or the principle thereof cannot be invoked. In such a case therefore, if relationship of landlord and tenant between the parties is denied by the tenant but is eventually found to be there, the Rent Controller cannot, after recording the finding in respect of the existence of such relationship, straightaway order his ejectment. He is obliged to hold an inquiry into the plea of personal requirement and will direct the tenant to vacate the premises only if the landlord is able to satisfy him, by producing evidence in support of his aforesaid plea, that the premises are in good faith requir ed by him for his own occupation.

13. Since, in the instant case, the learned Rent Controller ordered the ejectment of the appellant without requiring the first respondent to establish his personal need, the order of ejectment cannot be maintained.

14. I, therefore, accept the appeal with costs, set aside the order of ejectment made against the appellant and remand the case to the learned Rent Controller with the direction that he shall decide it afresh, in the light of the aforesaid observations and. according to law, within the shortest possible time. M.Y.M Appeal accepted.