1993 PLP 277 (CLC)

2. The land in dispute belongs to one Khuda Bakhsh, who leased it out to Mirza Ejaz Ahmad, respondent No.3, who after raising construction thereon sublet three shops to the petitioners in these three petitions. On the failure to pay rent, three separate applications under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, were filed by respondent No.3 against the petitioners. The petitioners contested these petitions, pleading that although the petitioners were tenants under respondent No.3, but that tenancy had ceased to exist w.e.f. 31‑3-1985. The Rent 'Controller, after framing the issues, recorded the evidence of the parties and found no force in the plea set up by the petitioners. Consequently, he, after holding that the petitioners were tenants under respondent No.3, directed their eviction from the shops in questions on 20‑10‑1987. Aggrieved by that order of the Rent Controller the petitioners went in appeal but their appeals were dismissed on 10‑5‑1988. Hence these petitions. 2 Learned counsel for the petitioners has contended that Khuda Bakhsh the holder of paramount title had filed an ejectment petition against respondent No.3 and the three petitioners for their eviction from the property in question on the ground of subletting. However, before the Rent Controller, an agreement was arrived at between the parties on 11‑3‑1980, according to which respondent No.3 undertook to vacate the premises on or before 31‑3‑1985. It is stated by learned counsel for the petitioners that on the failure of respondent No.3 to abide by this undertaking, an application for taking action under the Contempt of Court Act was filed by Khuda Bakhsh, in which the petitioners were also impleaded as parties. On having been summoned by the trial Court, the petitioners, under the threat of imminent eviction, attorned in favour of Khuda Bakhsh and as such ceased to be the tenants under the petitioners w.e.f. 31‑3‑1985.

3. Leaned counsel for the respondents, apart from controverting the arguments of learned counsel for the petitioners, has also pointed out that an objection petition was filed by Khuda Bakhsh to whom the petitioners claim to have attorned before the learned Executing Court, but that objection petition was dismissed on 10‑1‑1990 on the finding that Khuda Bakhsh was not the landlord of the petitioners. This order of the learned Rent Controller is stated to have become final as it was not challenged any further by Khuda Bakhsh. On these premises, it is argued that as Khuda Bakhsh under whom the petitioners claim tenancy, has lost the battle, the petitioners cannot claim any right in the land in dispute under him.

4. There is no dispute that Khuda Bakhsh was the owner of the land in dispute, which was leased out by him to respondent No.3, who raised the construction thereon. It is also admitted that an ejectment petition was filed by Khuda Bakhsh against Mirza Ejaz Ahmad, respondent No.3, in which the petitioners were also impleaded as parties. That ejectment petition ended in a compromise on 11‑3‑1980, when it was dismissed on the basis of the statements made by respondent No.3 and Khuda Bakhsh. These statements are of relevance and may be reproduced as under: On the basis of these statements, the effective order which was passed by the learned Rent Controller was dismissal of the ejectment petition; the only direction given being that the rent of the premises shall be Rs.700 per month. There is nothing in the order of the learned Rent Controller from which it could be assumed that after 31‑3‑1985, the petitioners would cease to be the tenants of respondent No.3, Mirza Ejaz Ahmad. Only an undertaking given by respondent No.3 was to vacate the premises by 31‑3‑1985. If he failed to abide by it, the petitioners could have filed an ejectment petition, seeking his eviction from the shop in question, if there were some grounds available, but this order did not operate to destroy the tenancy between the petitioners and respondent No.3. In fact, respondent No.3 was a No.l party to the compromise as no statement was made by him. It is also worthy of notice that the operative order passed by Rent Controller on 11th March, 1980 was of dismissal of the ejectment petition. Reverting now to the argument of learned counsel for the petitioner that as Khuda Bakhsh was holder of the paramount title, the attornment made by the petitioner in his favour is legal and valid and has the effect of terminating the tenancy between the petitioner and respondent No.3, the same is without any merit. Admittedly, the petitioner was inducted into possession of the shop of respondent No.3 after constructing the same and he cannot deny his tenancy under respondent.

6. As regards attornment in favour of the holder of the paramount title, the law is well‑settled that a tenant cannot put an end to the tenancy under his A landlord by attorning in favour of holder of paramount title except that when it becomes necessary in order to save himself from ejectment from the premises. In such a case, it must be shown that the tenant has acted under compulsion and imminent threat of eviction. In absence of such a circumstance, the voluntary attornment by him in favour of the holder of paramount title cannot destroy the tenancy between him and his landlord. This aspect need not be dilated upon as it was considered in detail by this Court in Mansur Raza and 4 others v. Mst. Surria Begum (PLD 1966 Lahore 1059), in which it was observed that:‑‑ "Under section 116 of the Evidence Act, no tenant of immovable property during the continuance of the tenancy can be permitted to deny that the landlord of such tenant had at the beginning of the tenancy title to such immovable property. It is indeed open to a tenant to prove subsequent ceaser of the landlord's title by ouster by the holder of a paramount title and his attqrnment to the latter without actually going out of possession. In order that an eviction by a person with a title paramount may constitute a good defence, the party evicting must have a good title and the tenant should have been forced to adopt the course of attorning himself to a person of ‑paramount title. It can happen only when the person armed with an authority to eject has actually ejected the tenant and he subsequent to his ejectment may become the tenant of such a person. It can also happen in a case where the tenant is in the imminent danger of ejectment at the hand of a person who has established his paramount title. In such a case the tenant, if he attorns, it will be against his will."

7. In the present case, nothing has been placed on the record to show that there was any such imminent threat of ejectment, which had compelled the petitioner to attorn in favour of Khuda Bakhsh, as otherwise he would have been evicted from the shop in question. Admittedy, in the earlier proceedings, no executable order of ejectment‑had been passed against the petitioner or respondent No.3 in favour of Khuda Bakhsh. There was not even an execution application pending before the Rent Controller at the time when the petitioner attorned to Khuda Bakhsh, nor any process for ejectment had been issued. Pendency of an application for taking an action against respondent No.3 under the Contempt of Court Act, did not constitute sufficient basis for enabling the petitioner to enter into an agreement of tenancy with Khuda Bakhsh directly.

8. Be that as it may, there is another weighty reason as to why the petitioner cannot succeed in this plea. During course of proceedings for execution of the impugned order, Khuda Bakhsh had filed an objection petition, claiming that he was the landlord of the premises and the petitioner was tenant under him. This objection petition was rejected by the Rent Controller on 10th January, 1990 on merits. That order, according to learned counsel for respondent No.3, has attained finality having not been challenged by Khuda Bakhsh. That being so, it is not open to the petitioner to reagitate the same question in the present proceedings. As a result of what has been stated above, this petition has found no merit and is dismissed, leaving the parties to bear their own costs. AA./G‑99/L Petition dismissed.