P L D 1967 Lahore 665 (PLP)

3. Mr. M. A. Mannan, the appellant's learned counsel assailed the order in appeal on the following grounds, namely: (i) that the Appellate Authority did not afford a proper hearing to the appellant (ii) that in any case the order of the Appellate Authority in appeal is devoid of validity; (iii) that the Appellate Authority completely ignored the evidence produced in the case to show that the shop in dispute ,t was Trust property and, therefore, vested in the Evacuee Trust Board; and (iv) that in any case, the Rent Controller was not justified in ordering appellant's ejectment on his decision on the prelimi nary issue as to the existence of relationship of landlord and tenant without framing and deciding other issue arising in the case, viz. the appellant's liability for ejectment.

4. The first ground of attack is based on the following facts which are not in dispute. Against the order of his ejectment by the Rent Controller, the appellant filed his appeal before the Appellate Authority on the 20th of January 190, and obtained a stay order. The appeal was set down for hearing on the 25th of February 1965. On this date, it appears, that Mr. M. A. Mannan, who represented the appellant before the Appellate Authority also, was taken ill and had to be admitted in the hospital for operation. Accordingly, the appellant made a formal motion requesting the Appellate Authority to adjourn the case for at least a week. On this date, it appears that the appellant was represented by another counsel who was only instructed to request for an adjournment and not to argue the appeal on merits. The learned Appellate Authority, however, refused to adjourn the case observing that the appellant was taking undue advantage of the stay order issued in his favour and, therefore, invited the appellant and his counsel to address arguments in support of the appeal. Upon their refusal to do so the appeal was dismissed after hearing arguments on behalf of the respondent. The appel lant's learned counsel in this Court urged with considerable vehemence that the Appellate Authority ought to have, in the circumstances of the case, adjourned the case. It was not, however, controverted that the appeal was actually fixed for hearing on that date and that it was entirely discretionary with the Appellate Authority whether or not to adjourn the appeal in the circum stances of the case. Merely because the Appellate Authority would have done better to have adjourned the appeal would not amount to saying that no proper opportunity was afforded to the appellant for a hearing. It is not denied that the appellant was represented by another counsel though he was instructed only to pray for an adjournment and not to argue the merits of the appeal, but then the Appellate Authority invited the appellant himself to argue the appeal which he declined to do. In these circumstances it is not possible to subscribe to the view that no proper hearing was afforded to the appellant by the Appellate Authority and that refusal to adjourn the case amounted to a denial of hearing to the appellant. It is possible to conceive of a case in which a party in appeal is not represented by any counsel in which case he will have to discharge the burden of arguing the appeal himself. Since the matter lay within the discretion of the Appellate Authority who did not incline to exercise the discretion in favour of the appellant, the matter cannot be taken in second appeal though one may sympathise with the appellant, for the refusal of his request, which on the face of it, was reasonable.

5. For the second ground of attack the appellant's learned counsel invited my attention to two orders one of which is undated and reads as follows:‑ "Due to stay being issued, the party wanted delay and applied for adjournment, due to illness of his counsel, as he was represented by another counsel, who only pressed for adjourn ment, and the appellant despite the permission to argue did not consider to do so. Arguments for opposite‑party was heard. The appeal is dismissed with costs. Pleader's fee Rs. 25." The other order is dated the 25th of February 1965 and sets out the grounds upon which the ejectment of the appellant herein was sought and the points on which the parties were at issue before the Rent Controller. The learned Appellate Authority did not find any valid reason to differ from the conclusions reached by the Rent Controller and, therefore, upheld the order of the appellant's ejectment from the shop in dispute. Learned counsel for the appellant urged that upon the refusal of the Appellate Authority to adjourn the appeal on the 25th of February 1965, the Authority summarily dismissed the appeal by the brief order set out above in extenso and that the detailed order purporting to be dated the 25th of February, 1965, was written later when the Authority had become functus officio having written and pronounced the earlier brief order though it was left undated. On these facts, it was argued that the appellate order is devoid of any validity, whatever. In its report dated the 4th of May 1965, in pursuance of the order of my learned brother Muhammad Afzal Cheema, J., dated the 26th of April 1965, the Appellate Authority explained that the order dated the 25th of February 1965, is the main order in appeal and that the undated brief order is an abstract from the order‑sheet which is separately kept on each file as a record of proceeding conducted on each hearing. The explanation appears plausible. That apart, there is a strong presumption of correctness in favour of all judicial and official acts (see section 114 of the Evidence Act) which reinforced as it is in the present case by the explanation of the Appellate Authority is not displaced by the mere allegation of the appellant. I, therefore, find no substance in this ground of attack, either.

6. In support of the third ground of attack the appellant's learned counsel argued that the appellant had produced certain evidence before the Rent Controller which tends to show that the property belonged to a cheritable Trust and not to an evacuee owner personally. It was complained that the Rent Controller did not refer to this evidence in his order which was also ignored by the Appellate Authority. The argument, in my opinion, overlooks the provisions of section 30 of the 1958 Act which, as held in a Full Bench case in Akhtar All Pervez v. Altaf‑ur Rehman (P L D 1963 Lab, 390), that upon a transfer of an evacuee property under the provisions of the Act, there is brought into existence a statutory tenancy as between the transferee of such property and its occupant. This judgment was recently followed in a Single Bench case in Mehdi Hassan v. Ghulam Muhammad (P L 13 1904 Lab, 648) in which the learned Judge observed as follows :‑ "By the fact that a P. T. O. had been issued, there came into being, by virtue of clause (1) of section 30, a statutory relation ship of landlord and tenant between the appellant and the respondents. The respondents were not required to lead any other evidence to establish this relationship." In the instant case it is not denied that the respondents had produced the P. T. O. issued in his favour and this evidence was conclusive on his title as transferee of the property under the provisions of the Act. These precedents in my opinion conclude the point against the appellant.

7. That apart, in my opinion, the point could not have been convassed before the Rent Controller who was a Tribunal of limited jurisdiction. The question was entertainable only by the Chief Settlement Commissioner under section 4 (3) of the Act. Indeed, the appellant did move the Settlement Commissioner for a declaration under section 4 (3) that shop in dispute was trust property, but his application failed. Under proviso to the subsection, this order, subject to an order in appeal to the High Court, is final.

8. On the above view of the matter, therefore, the plea taken by the appellant to oppose the ejectment petition, was not available to him in these proceedings. He did invoke the appropriate jurisdiction but his application failed and he cannot be permitted to re‑agitate it in this limited jurisdic tion.

9. In support of the last proposition, appellant's learned counsel argued, that the Rent Controller ordered ejectment of the appellant from the shop in dispute on a preliminary issue without further deciding as to the appellant's liability for ejectment. It was urged that the issue as to the subsistence of relationship of landlord and tenant was in the nature of a preliminary issue which having been found against the appellant, the Rent Controller ought to have framed further issue as to whether the appellant was, in the circumstances of the case, liable to ejectment from the shop in dispute. The argument was that of finding as to the existence of relationship of landlord and tenant coupled with non‑payment of rent, by itself, would not justify the appellant's ejectment or forfeiture of his tenancy. In support of the above argument reliance was placed upon Muhammad Ismail v. Israr Ahmad (P L D 1961 Lab. 6Ol) in which a Division Bench of this Court Inter alia observed that the West Pakistan Urban Rent Restriction Ordinance has been enacted to provide number of safeguards for tenants and restricted rights of ownership of the landlords. It was also observed that the Statute postulates that no tenant will, by falsely denying the relationship of landlord and tenant, deprive himself ,1 those safeguards. In the precedent case, however, the actual point which fell for decision by the learned Judges was whether in a case falling under the 1959 Ordinance, where the person in occupation of the premises disowns his possession as a tenant under the petitioner, can be required under section 13 (6) of the Ordinance, to make provi sional deposit of arrears of rent, or future rent without first determining the existence of the relationship of landlord and tenant between him and the petitioner? It was held that the question relating to the existence of relationship of landlord and tenant was in the nature of a preliminary issue which must be decided in the first instance and the respondent can be required under section 13 (6) of the Ordinance to deposit arrears of rent and future rent as provisionally determined only after an affirmative finding on this preliminary issue. Consequently the contrary view taken earlier in a Single Bench in Doctor Ilyas Dobash v. Muhammad Iqbal (P I, D 1960 Lah. 1112) was disproved. Incidentally this view was also affirmed in Akhtar Ali Pervez v. Altaf‑ur‑Rahman. Beyond this the precedent case relied upon by the appellant's learned counsel has no efficacy.

10. These cases were also followed in a later case in Mehdi Hassan v. Ghulam Muhammad which has already been noticed and upon which the learned counsel also relied strongly in support of his argument. The last‑mentioned case though broadly followed the dictum in the case of Muhammad Ismail is clearly distinguishable on facts. It was a case between two transferees of an evacuee property on the one hand and the person in its possession on the other. The latter, not only denied the subsistence of the relationship of landlord and tenant between himself and the transferees but questioned the rate at which the rent was demanded by the transferees. Further the applications for ejectment was made by one transferee who purported to act on behalf of the other on the basis of a power of attorney, the validity of which was also questioned by the person in possession. The Rent Controller finding the preliminary issue regarding the subsistence of the relationship of landlord and tenant between the transferees and the person in possession on the basis of the P. T. O. issued in favour of the former, immediately proceeded to make an order for the tenant's ejectment on the ground that having denied the relationship of landlord and tenant there was no question of any payment of rent due and, therefore, it was unnecessary to determine the proper rate of rent chargeable. There was no finding, either, as to the genuineness or the validity of the power of attorney filed by the petitioner purported to have been executed by the other transferee. It is clear from the above statement of facts that the Rent Controller ordered the ejectment of person in possession without any finding as to the rate of rent legally chargeable from the tenant and the validity of the power‑of‑attorney although those points were specifically taken in the written statement and a finding on these issues was necessary for an effective decision of the case. In the present case, on the other hand, as pointed out already, apart from denying the subsistence of relationship of landlord and tenant on 44 the ground that the shop in dispute being trust property was not available for transfer to the respondent herein, the appellant did not either question the rent claimed by the respondent in his notice nor did he raise any other plea in condonation of his default in the payment of the rent due. In this behalf paragraph 3 of the appellant's written statement before the Rent Controller in answer to paragraph 3 of the respondent's application must set at rest all doubts on the point. In that paragraph, the respondent inter alla claimed rent at the rate of Rs. 35 P. M. and increased rent from the 1st of January 1962, owing to increase in municipal taxes. The relevant averments in the written statement read as follows:‑ "That paragraph 3 is correct only to the extent that a notice under section 30 was served on the answering‑respondent wherein rent at the rate of Rs. 35 P. M. was claimed from 15‑8‑60 up to 15‑4‑

61. It is wrong that the respondent has become a defaulter. The property No. S‑19‑R‑16 being Evacuee Trust Property, the petitioner has no legal right to claim to be its transferee and much-less to claim any rent in respect thereof. . . . . . . . . . . . . . . . . . . . . . . . . It is only the District Evacuee Property Trust Committee, Lahore, which is competent to receive rents from the occupants of Evacuee Trust Property." It is, therefore, manifest that the appellant merely disputed the validity of the transfer of the shop in dispute in favour of the respondent and did not specifically nor by necessary implication disputed the rate at which the rent was being claimed by the respondent. Even Mehdi Hassan's case, upon which the appellant's learned counsel relied so strongly, did not lay down any principle of universal application and the dictum laid down therein must be confined to the facts of that case. Even while following the dictum in Muhammad Ismail's case, the learned Single Judge in Mehdi Hassan's was careful enough to observe as follows‑ It, however, depends on the facts and circumstances of each case whether further enquiry in a case is called for or not. If a respondent does not deny an allegation made against him that he had failed to pay the rent and allegee, on the other hand, that he was not a tenant of the petitioner, he, of course, cannot be permitted to plead the payment of rent after it is held by the Rent Controller that he is, in fact, the tenant. These pleas in their context will be destructive of each other. . . . . . . .. . . . . . . . . . . . . .

11. If I may say no with respect, I fully agree .with. the above statement of law. In the instant case, as pointed out above, the parties were at issue only on a single point, namely, so to the subsistence of the relationship of landlord and tenant. between the parties being germane to the validity of the transfer of the shop in favour of the respondent. This issue having been decided, and rightly so, in favour of the respondent nothing remained in the case to be further decided and the Rent Controller, was perfectly justified, in my opinion, to order ejectment of the appellant from the shop in dispute.

12. Learned counsel for the appellant did not refer to any provision of the 1959 Ordinance, requiring the Rent Controller to frame any specific issue as to the tenant's liability of ejectment, apart from any issue that may arise from the averments of the parties. As held by their Lordships of the Supreme Court in Khadim Mohyuddin v. Rehmal Ali (P L D 1965 S C 459) the Rent Controller has been given powers under sections 4, 10 (3) and 12 of the Ordinance to make order after holding such enquiry "as thinks fit". It was further held that for an order under section 13 (3) he is not bound, to follow any particular procedure. At the highest, the Rent Controller exercises quasi judicial jurisdiction and is not bound to follow the provisions of Code of Civil Procedure except in so far as they relate to summoning of witnesses and compelling the production of evidence. It may be true that the 1959 Ordinance was enacted to afford protection to tenants against vagaries of land lords, but it would be wrong to say that the Ordinance would also protect tenants who are recalcitrant or contumacious in the discharge of their obligations.

13. For the foregoing reasons, I see no merit in this appeal which is hereby dismissed. The appellant shall pay the respon dent's costs in this appeal. K. M. A. Appeal dismissed