1990 PLP 1659 (CLC)

7. It seems that the first petitioner did not stop here and aggrieved by the decision of the learned Single Judge in the High Court preferred petition for leave to appeal before the Supreme Court of Pakistan wherein he incorporated the following questions of law for soliciting the findings of the august Court:‑ (i) Whether in a case of creation of sub‑dealership for he sale of petroleum products, the relationship inter se the dealer and sub‑dealer is that of a landlord and tenant within the meaning of sections 2 (c) and 2 (i) of the Punjab Urban Rent Restriction Ordinance, 1959? (ii) Whether letting out of business of a petrol pump would give rise to the relationship of landlord and tenant in respect of a non‑residential building or rented land? (iii) Whether the lease of a petrol pump can be termed as a lease of non residential building or rented land and not that of machinery? (iv) Whether in an ejectment case a person who is neither a landlord nor a tenant is a necessary or proper party? (v) Whether the lease of machinery, in order to oust the jurisdiction of Rent Controller, must necessarily qualify to process or manufacture something to convert the premises into a factory?

8. During the course of narration of the facts and other circumstances of the case it was also complained that the learned Judge in the High Court, while dealing with the remand order, had finally recorded findings on merits, thereby substituting his own findings for those recorded by the learned Rent Controller and this course having foreclosed the fate of the case, there was nothing left for the Rent Controller to decide in the post‑remand proceedings.

9. The Supreme Court, vide order dated 14‑1‑1986, was pleased to dismiss the C.P.L.A. No.265‑R of 1985 in the following terms and this brought an end to the first round of litigation between the parties:‑ "After hearing the learned counsel we are satisfied that the remand order is neither illegal nor improper. Refusal of the High Court to interfere in such matter in its discretionary jurisdiction was fully justified. If the petitioner participated in the original ejectment proceedings as also during the appeal proceedings he should not have challenged the remand order and should have waited for the final orders after remand which could if need be challenged in accordance with law. With these observations, we find no force in this petition and the same is dismissed

9. In the second round of litigation the Rent Controller, in compliance with the remand order of the learned Additional District Judge, got impleaded the Pakistan State Oil as respondent No.2 in the ejectment petition. The added respondent in its written reply, after raising a preliminary objection regarding the jurisdiction of the Rent Controller to adjudicate upon the ejectment petition, took up the position that the petrol pump in question was being run by Malik Jehangir Khan as its dealer and Syed Sibtul Hassan had no concern with its building, installations and business. On the basis of the preliminary objection the learned Rent Controller framed the following additional issue:‑‑ 1‑A. Whether this Court has got no jurisdiction to try the ejectment petition

10. The parties adduced further evidence and the learned Rent Controller, vide his order, dated 12‑1‑1987, accepted the ejectment petition and directed Malik Jehangir khan to deliver the vacant possession of the disputed petrol pump to his opponent within a period of two months, after coming to the conclusion that the relationship of landlord and tenant existed between them and he had the jurisdiction to try the ejectment petition. Feeling aggrieved, Malik Jehangir Khan as well as the Pakistan State Oil respondent No.2 (hereinafter to be referred to as the second petitioner both filed separate appeals and the Additional District Judge, vide his consolidated judgment, dated 12‑5‑1988, dismissed both of them. Dissatisfied with his decision, both of them preferred separate writ petitions before this Court.

11. Ch. Khurshid Ahmad Advocate, the learned counsel for the first petitioner, called in question the findings of the Courts below on both the issues, one relating to the relationship of landlord and tenant, and the other concerning jurisdiction of‑the Rent Controller. With regard to the first issue he submitted that if the contents of the ejectment petition be read alongwith those of the agreement, dated 4‑2‑1971 (Exh.A‑1) and the statement of Syed Sibtul Hassan Shah, respondent No.3, who had appeared as AW.1, it became crystal clear that there was no relationship of landlord and tenant between the first petitioner and respondent No.3. Elaborating his contention, he submitted that in paragraph No.l of the ejectment petition it was alleged by respondent No.3 that the first petitioner was his tenant under him "for running the business of sale of petroleum products" while in the agreement, dated 4‑2‑1971 (Exh.A‑1) it was stated that respondent No.3 had appointed the first petitioner as sub‑dealer for sale of petroleum products at D.P.L. filling station Texila‑Kot Najeeb Ullah Road" and the latter "shall pay a sum of Rs.150 per month in advance before the 15th day of every month as consideration for sub‑dealership, "and the former appearing as (AW.1) had in the opening sentence of his statement deposed that "he was owner of the business of the disputed petrol pump:" According to the learned counsel, since the subject‑matter of the tenancy was business, the parties did not fall within the definition of `landlord' and `tenant' as given in the Urban Rent Restriction Ordinance, 1959. He argued that the petrol pump belonged to the second petitioner (PSO) together with its fittings and fixtures as also the petroleum products and it was given to the first petitioner by it under an agreement (Exh. R.W.6/2) executed by both the parties and the latter had been operating the petrol pump as a dealer under the former ever since 1970 and repair bills (Exhs.R.l to R.7) a writing indicating stock position (Exh.R.8), and income tax statements/decisions (Exhs. R.9 and R.10) brought by the first petitioner on the record go a long way to establish that there was no intermediary between him and the second petitioner. He complained that these documents, which had an important bearing on the case of first petitioner, were not considered by the Courts below and for that reason too their findings on the question of relationship of landlord and tenant suffered from serious legal infirmity. With reference to the statement of Mr. Javaid Hassan Lodhi, Divisional Manager, P.S.O. who was exmained twice, once' as (R.W. 1) and then as (R.W.2), the learned counsel maintained that pursuant to the letter (Exh.R.W.6/1) and the agreement (Exh. R.W. 6/2) which were proved by this witness as an employee of the second petitioner, the first petitioner was appointed as a dealer of the disputed pump and his statement coupled with the documents proved by him clearly established the fact that the first petitioner was a dealer under the second petitioner and respondent No. 3 and his father Syed Nazam‑ud‑Din Shah did not figure in any capacity and their claim of landlordship stood amply refuted.

12. Commenting on certain observations of the learned Judge of the High Court in the decision of Writ Petition No. 97 of 1984, he convassed that the observations so made were neither relevant nor they operated as res judicata because the matter in issue was the validity of the remand order passed by the learned Additional District Judge and not the question of relationship of landlord and tenant between the parties. In this connection he referred to Muhammad Anwar v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore and three others (PLD 1975 Lah. 1463). In his opinion, both the Courts below erred in considering themselves bound by those observations and this Court is at liberty to make fresh assessment after taking into consideration the relevant facts and circumstances of the case and the evidence adduced by the parties, including the documents which were ignored by the Courts below.

13. Similarly, with regard to the leave refusing order in C.P.LA.No.265‑R of 1985, the learned counsel is of the view that by no stretch of imagination it could be interpreted to have approved certain observations of the learned Judge in the High Court in Writ Petition No. 97 of 1984, concerning the relationship of landlord and tenant between the first petitioner and respondent No.3 and the question of jurisdiction, which had also influenced the findings of the learned Rent Controller on both the issues as also of the learned Additional District Judge, and this Court is expected not to interpret the observations of the Supreme Court in that tenor because they had remained confined only to the remand order. 14. " Mirza Anwar Baig Advocate, the learned counsel for the second petitioner, supplementing the arguments of the learned counsel for the first petitioner, contended that his client was not a party to pre‑remand proceedings nor it was a party before the High Court in Writ Petition No.97 of 1984, therefore, the observations made by the learned Judge in the High Court disposing of this writ petition were not binding on his client. According to him the ejectment order passed by the learned Rent Controller and affirmed by the learned Additional District Judge, indirectly operated against his client and in fact it virtually entailed his ouster from the disputed premises which was not the intention of the rent laws.

15. Raja Aziz‑ud‑Din Ahmad Advocate, the learned counsel for respondent No‑3, besides supporting the impugned orders, including the order passed by the High Court in writ petition No.97 of 1984, raised a question of maintainability of writ petitions with reference to the concurrent findings of the Courts below on the relationship of landlord and tenant. He pointed out that the learned Additional District Judge in the remand order, dated 20‑3‑1984, had simply asked the learned Rent Controller to determine the origin of dealership and the stand of the petrol company, by impleading it as an added respondent because the first petitioner as well as respondent No. 3 both were claiming dealership of the disputed petrol pump under it, but the first petitioner, with a view to delay the decision of the ejectment petition and unnecessarily complicate a simple question, took the matter to the High Court by invoking its writ jurisdiction and his counsel Mirza Anwar Baig Advocate, who now represented the second petitioner (PSO), besides challenging the remand order, specifically raised the question of relationship of landlord and tenant between the parties as also that of lack of jurisdiction of the Rent Controller. He asserted that since these questions were specifically raised before the learned Judge in the High Court, he had no option but to determine them and in the order dated 4‑3‑1985 he actually did so and his findings were even approved by the Hon'ble Supreme Court in the leave refusing order passed in C.P.L.A.No. 265‑R of 1985. According to the learned counsel, the observations of the learned Judge in the High Court in writ petition No. 97 of 1984, which had the implied approval of the Hon'ble Supreme Court, were binding on the Rent Controller as also on the learned Additional District Judge and even this Court cannot express different view nor the writ petitioners, particularly the first petitioner, can now wriggle out of them because those findings operated as res judicata for all intents and purposes. In support of this contention, he placed reliance on Muhammad Ashraf and others v. Settlement Commissioner, Bahawalpur and others (1981 SCMR 1048), Asif Jah Siddiqi v. Government of Sindh and others (1983 SCMR 46), Ghiaz‑ud‑Din and others v. Falak Sher and others (1988 S C M R 136) and Ali Muzaffar v. Mst. Amtul Begum and three others (1989 S C M R 678).

16. Commenting on the factual aspect of the matter, the learned counsel for respondent No.3 contended that paragraph No.l of the ejectment petition; the contents of agreement dated 4‑2‑1971 (Exh.A.l) which were denied by the first petitioner during the course of his statement before the Rent Controller but reluctantly admitted only his signature thereon; and the statement of respondent No.3 as his own witness, if read as a whole, clearly spelt out that respondent No.3 had sublet the disputed premises to the first petitioner after its dealership had devolved on him by the process of inheritance from his father Syed Nazam‑ud Din Shah and the latter continued to operate the petrol pump as a tenant under the landlordship of the former until he stopped paying the monthy rent of Rs.150 to him and in collusion with Javaid Hassan Lodhi, a senior employee of P.S.O. claimed the so‑called direct dealership under it (second petitioner).

17. Tracing the history of the dealership, the learned counsel submitted that Dawood Petroleum Company, the predecessor company of the PSO (second petitioner), had appointed Syed Nazam‑ud‑Din Shah as dealer of the disputed petrol pump vide appointment letter (Exh.R.l) as far back as 16‑2‑1970 and he sublet it to Muhammad Jaffar (R.W.2) but he could not operate it for a longer period and terminating his sub‑dealership, returned the petrol pump to Syed Nazam‑ud‑Din Shah. He, however, died after some time and the dealership devolved on his son, respondent No.3, who sublet it to the first petitioner but the latter, changed his mind and in collusion with Javaid Ahsan Lodhi, a senior employee of P.S.O. incharge of the area, started claiming direct dealership under it. He argued that when the first petitioner turned traitor to respondent No.3 the latter instituted the ejectment petition against him on 22‑4‑1981 and during its r pendency he in league with Javaid Ahsan Lodhi (R.W.6), fabricated the so‑called agreement of dealership (Exh.R.W.6/2) with a view to make out a false defence in the ejectment proceedings. Commenting on the contents of this document, he submitted that Javaid Ahsan Lodhi was the author of this forged document and in his statement as (R.W.6) he admitted in the cross‑examination that the year of the date mentioned in this document was removed by using a chemical called blanko. In his opinion, this witness was not only guilty of fabricating this document but also made a false statement during the course of judicial proceedings and committed the offence of perjury as well.

18. After going through the record in the light of various contentions of the learned counsel representing the parties, first of all I take up the question of maintainability of the writ petitions. Learned counsel for the first petitioner, with reference to certain documents, has tried to make out a case of non‑reading while his opposing counsel has endeavoured to establish it a case of concurrent findings of facts by the Courts below. The documents which were not considered by either of the Courts below are repair bills (Exh.R.l to Exh.R.7), a writing f indicating stock position (Exh.R.8), and the statements of income‑tax (Exh.R.9 and Exh.R.10). These documents were prepared by the first petitioner himself and being an admission in his own favour, have no bearing on the merits of the case, nor on the question of relationship of landlord and tenant. Therefore, the omission on the part of the Rent Controller as also on the part of the Additional! District Judge to consider these documents during the course of their respective orders, does not make out a case of non‑reading and I see no force in the contention of the learned counsel for the first petitioner in this regard.

19. The next point which is relevant to the question of maintainability is that of res judicata and it has been pressed into service by the learned counsel for respondent No.3 with the help of case law. The question of relationship of landlord and tenant between the first petitioner and respondent No.3 was agitated before the High Court in writ petition 97 of 1984 by the learned counsel representing the former and after considering it the learned Judge while disposing of this petition came to the conclusion that such a relationship existed B L_ between them. His findings, which, in my opinion had the implied approval of the Hon'ble Supreme Court; as it appears from the tenor of its leave refusing order in C.P.L.A. No.265‑R of 1985, were binding on the Rent Controller as well as the learned Appellate Court and it is not legally permissible even for me to subject them to any adverse criticism. Those findings, in view of the law laid down in various authorities referred to and relied upon by the learned counsel for respondent No.3, constitute res judicata and the same matter cannot be reagitated by the writ petitioners before this Court.

20. Anyhow, irrespective of my findings on the question of maintainability of writ petitions in view of the concurrent findings of facts of the Courts below and the principle of res judicata, the evidence adduced by respondent No.3 on the issue relating to the relationship of landlord and tenant between him and the first petitioner go a long way to prove the existence of such relationship between them. The averments in paragraph No.l of the ejectment petition read as a whole, C amply spell out the assertion of respondent No.3 in support of his claim as landlord and the status of his opponent as tenant under him. Similarly, the' contents of agreement (Exh.A.l) and the opening sentence of the statement of respondent No.3 as his own witness substantially prove the fact of his being landlord and the first petitioner as his tenant in the context of definition of `landlord' and `tenant' as given in the definition clause of the Urban Rent Restriction Ordinance, 1959, which permits the existence of that kind of relationship even between the tenant and the sublessee or sub‑tenant as in this case. On the death of Syed Nizam Din Shah, his son respondent No.3 inherited his rights in the disputed property as a dealer with the tacit consent of the predecessor company of the second petitioner and then by the second petitioner itself because the dealership of Syed Nizam Din Shah was never cancelled or terminated and the security amount of Rs.2900 deposited by him in 1970 is still in the hands of the second petitioner, and the first petitioner during all these years never deposited any security with the second petitioner. In these circumstances respondent No.3 was legally competent to sublet the disputed premises to the first petitioner, of course without prejudice to the rights of the second petitioner therein, and the first petitioner after the execution of agreement (Exh.A.t) in favour of respondent No.3 became a tenant under him and could not deny his landlordship by attorning to the second petitioner directly. There is ample case law on this point. It may be mentioned here that the first petitioner, while appearing as his own witness (R.W. 5), denied the execution of agreement (Exh. A. 1) as also its contents but reluctantly admitted his signatures thereon and alleged that it was a blank paper. This was a crude attempt on his part to wriggle out of his liability under this agreement. Muhammad Jaffar, while appearing as (R.W. 2), had also admitted his signatures on this document (Exh.A.l) but claimed himself as dealer of the petrol pump directly under Dawood Petroleum Ltd. In the cross‑examination he admitted that the company had not given him any licence of dealership and that the security for the petroleum products had been deposited by Syed Nizam Din Shah, though he did not know him. If the statement of this witness be read in its entirety, it becomes clear that he had been working the petrol pump as a sub‑lessee or sub‑dealer under Syed Nizam Din Shah but he could not operate it for a longer period and terminating his sub‑lease or sub‑dealership, returned the same to him and after his death when his son respondent No.3 sublet the petrol pump to the first petitioner vide agreement (Exh. A.1), he also signed it as a marginal witness. He seems to have adopted a false posture that he was dealer of the petrol pump and after running it for some time handed it over to the first petitioner with the intervention of Malik Muhammad Nawaz (R.W. 1) who was an employee of the company at that time. Similarly, Muhammad Nawaz (R.W.1) appears to have made a tutored statement at the instance of the first petitioner by saying that he had got delivered the possession of the filling station in question from Muhammad Jaffar (R.W. 2) to the first petitioner though at the same time he also admitted that the appointment letter (Exh.R.l) under the signatures of Syed Sajjad Ahmad, General Manager of Dawood Petroleum Limited, had been issued to Syed Nizam Din Shah and he had also deposited the security amount for the petroleum products.

21. Thus it will be seen that during the period between 1970, when the letter for appointment of dealership was issued in favour of Syed Nizam Din Shah, and the year 1985, when the second petitioner (PSO) acting through Javaid Ahsan Lodhi, its Divisional Manager (R.W. 6), entered into a dealership with the first petitioner vide agreement (Exh. R.W. 6/2) persuant to appointment letter (Exh. 6/1), no dealership agreement was ever executed by the second petitioner (PSO) or its predecessor company with any person. 1t appears that the first petitioner, after obtaining the possession of the disputed petrol pump from respondent No.3 persuant to the agreement (Exh. A.1), with the collusion of the employees of the second petitioner, started operating the petrol pump by establishing direct dealings with it through its local employees and when the petitioner eventually brought ejectment proceedings against him in 1981, he, under an appointment letter (Exh. R.W. 6/1), the date of which was altered or tampered with by psing blanko, as per statement of Javaid Ahsan Lodhi (R.W. 6) himself, entered into the so‑called agreement of dealership (Exh. R. W. 6/2) with the second petitioner with the good offices of Javaid Ahsan Lodhi (R.W. 6), who signed it on behalf of the second petitioner (PSO) on 12‑12‑1985. This document as well as the appointment letter (Exh. R.W.6/1) both were obviously written during the pendency of the ejectment proceedings brought by respondent No.3 and being hit by the principle of lis pendens, they did not take effect at all. It appears that these documents were fabricated by the first petitioner and Javaid Ahsan Lodhi (R.W. 6) and the appointment letter (Exh. R.W.6/1) was even forged by tampering with its date by using a chemical called blanko and they did so with a view to set up a false defence in the ejectment proceedings.

22. Thus it will be noted that independent of insurmountable observations of binding nature recorded by the learned Judge in the High Court in the decision of the Writ Petition No. 97 of 1984, respondent No.3 had fairly succeeded in proving the existence of the relationship of the landlord and tenant between him and the first petitioner as embodied in issue No.1 and no fault can be found in the conclusion so reached by the learned Rent Controller as also by the learned Additional District Judge. It may be mentioned here that this issue was relevant only between respondent No.3 and the first petitioner and its decision did not affect the right or interest of the second petitioner (PSO) which was admittedly the owner of the fittings, fixtures and the petroleum products besides the structure, and the lessee of the land underneath which allegedly belonged to P.W.D. 1n other words, the position or status of the first petitioner under respondent No.3 is the same or similar as the latter had vis‑a‑vis the second petitioner which in relation to the land underneath was, in turn, a tenant or lessee under the P.W.D.

23. As regards issue No.l‑A concerning jurisdiction, the learned counsel representing the writ petitioners first tried to argue that the learned Rent Controller had no jurisdiction to adjudicate upon the ejectment petition of respondent No.3 because with the existence of the machinery of petrol pump on the disputed premises it was neither a `building' nor a `rented land' within the meaning of 1959 Ordinance and its operation being a manufacturing process, the Ordinance did not apply. They then tried to convass that since the business of the sale of petroleum products was let out by respondent No.3 to the first petitioner, as per averment in the ejectment petition, contents of agreement (Exh. A‑1) and the deposition of respondent No.3, and no site had been sublet to him, for that reason too the Ordinance did not apply and the Rent Controller had no jurisdiction. The learned counsel, after dilating upon these points for quite sometime, when realised that in view of the observation of the learned Judge of High Court on these points in the previous writ petition, their arguments might not cut much ice, they switched over to the third and the last contention. They asserted that respondent No.3 was, at the most, a licensee under the second petitioner and the first petitioner was sub‑licensee under him and their rights and liabilities could be determined only by a Civil Court and not by the Rent Controller and as such neither the ejectment petition was maintainable nor the Rent Controller had the jurisdiction to try it.

24. There seems to be no force in this argument either. This ground was not taken up before either of the lower forums, and it cannot be taken for the first time before this Court in the writ jurisdiction. But if at all they are competent to E raise it, even then they cannot succeed. The relationship between the second petitioner (P.S.O.) and respondent No.3 may be that of the licensor and licensee, though in the absence of any written agreement between them as yet it is difficult to determine even this relationship in precise terms, but the relationship between respondent No.3 and the first petitioner essentially remains that of landlord and F tenant, as already discussed and held, and the Rent Controller had the jurisdiction to entertain and decide the ejectment petition brought by respondent No.3. Therefore, issue No. 1‑A was also correctly decided by the Courts below.

25. In view of what has been said above, there being no substance in the writ petitions, the same are dismissed with costs. First petitioner is, however, allowed two months time to deliver possession of the disputed premises to respondent No.3 who shall occupy it as a dealer under the second petitioner (P.S.O.) and their inter se relationship shall be regulated accordingly. M.B.A./J‑80/L Petitions dismissed.