1999 PLP 1809 (YLR)

(vii) The telephone in the name of Arshad was installed in the year 1982 while the ejectment proceedings were previously pending adjudication against the respondent. This attempt or telegram produced by Muhammad Bashir R.W.1, cannot create tenancy in the name of Arshad. Similar is the position with Exhs.R.1 to R.3. (viii) The respondent is an untrustworthy witness. His statement is full of glaring contradictions, even about his own address. He lied on oath with regard to the name of Arshad having been got recorded in his reply to the ejectment petition and about payment of rent by his brothers in his presence."

8. As the rent petition was pending ever since 10‑12‑1980 the learned First Appellate Court issued certain directions to the Rent Controller which are reflected in paragraph 9 of his judgment and these two are being reproduced below in extenso: "Since the petition is pending ever since 10‑12‑1980, therefore, the Rent Controller is directed as under: (a) On 10‑2‑1991, he shall pass a tentative order under the first part of subsection (6) of section 13 of the Ordinance directing the respondent to deposit the arrears of rent in hard cash in lumpsum for the period from 1‑1‑1979 up to 30‑1‑1991 by 28‑2‑1991 at the rate of Rs.600 per month, with a further direction to deposit the future rent at the said rate before 15th of each succeeding month, pending decision of the ejectment petition. (b) On the said date, he shall frame issues in the light of the pleadings of the parties already on the record, including the one to ascertain the actual/fixed rate of rent directing the parties to furnish their respective schedules of witnesses within seven days, fixing the matter for recording of the petitioner's evidence in the affirmative for 20‑2‑1991. (c) He shall adjourn the matter for any purpose for more than a week and shall decide the petition in any case by 31‑3‑1991. (d) He shall finally determine the rent due under second hart of subsection (6) of section 3 of the Ordinance."

9. In paragraph 3 of the grounds for the second appeal it has been said by the respondent that when the case was remanded the learned Rent Controller ordered the appellant to deposit Rs.81,000 as arrears of rent under subsection (6) of the Urban Rent Restriction Ordinance.

10. According to the learned counsel for the respondent the appellant has not deposited this amount and was prolonging litigation without carrying on his obligations.

11. This is a classical case wherein a rent matter has already taken about 19 years and still the case is not where at the stage of closing. When the First Appellate Court decided the question of relationship and asked for decision on merits this order was again challenged through this second appeal and, thus, the decision of the case on merits was held in abeyance.

12. It seems that the very purpose of bringing a special statute for expeditious disposal of rent cases is being defeated and every one should be concerned about it and looking towards curative measures so that the very purpose of the law is not defeated. Any way, the question before the First Appellate Court was whether the relationship existed inter se the parties and this he has determined on the basis of the evidence which he has pointed out in paragraph 6 of his judgment referred to above.

13. The learned counsel for the appellant did not say a word whether the evidence relied upon by the First Appellate Court was outside the record. Nor did he point out any material irregularity committed by the First Appellate Court.

14. In this connection, this Court ordered for the production of the original record for affording an opportunity to the learned counsel for the appellant to point out the irregularities, if any, while keeping the record available.

15. It appears that from the very beginning the present appellant was trying to confuse the issue with respect to the relationship when initially he just mentioned that a brother of his was a tenant without giving his name and which name he introduced subsequently at his convenience.

16. This Court asked the learned counsel for the appellant as to why he was contesting this case when he was not a tenant. To which his reply was unsatisfactory.

17. In the previous round of litigation he had taken the case up to the Supreme Court of Pakistan. This Court has been further informed that Muhammad Arshad, the brother whose name he was advancing as a tenant has expired.

18. Since this was an old case this Court proposed to the parties if they wished to settle their dispute instead of continuing the litigation. Both the parties agreed but the terms advanced by the appellant's side were unacceptable to the respondent. In this way this Court had the opportunity of observing the conduct of the parties.

19. The learned First Appellate Court after deciding that the relationship of landlord and tenant existed between the parties did not decide the matter there and then. But proceeded to remand the case and left it for the Rent Controller to exercise such powers. It appears that the First Appellate Court was confused on this legal aspect and had two thoughts about it.

20. The relationship of a landlord and tenant implies acceptance of a title of landlord as such and whenever a tenant denies this title and it is established that he is a tenant he forfeits his tenancy having become a trespasser and is to be ejected forthwith. In this connection reference may be made to the following cases:

21. In the case of Nisar Ahmad v. Nazar Muhammad (PLD 1974 Lahore 489) it was observed: "The main question is as to whether in the circumstances of the case, as discussed above, any such order under section 13(6), Urban Rent Restriction Ordinance was at all necessary to be passed. I am of the view that since the appellant had admitted to have not paid any amount of rent to the respondent, therefore, after he was held to be the tenant of the respondent, no further inquiry was necessary to be made and ejectment order against him could be passed. He could not be allowed to plead differently after having pleaded that he was not the tenant of the respondent. The provisions as contained in section 13(6) of the Ordinance applies to the tenant and not to the persons occupying the property otherwise. A person who does not acknowledge the relationship of landlord and tenant between the parties has no right to plead after finding in this regard against him for any further inquiry, under the said provision. He is estopped by his conduct to plead that since he has been found to be a tenant, therefore, he should be allowed to prove the payment of rent."

22. In the case of Muhammad Bux and another v. Ghulam Rasool (PLD 1982 Karachi 28) Mr. Ajmal Mian (as his lordship was then) had observed: "(iii) As regards PLD 1976 Lah. 1078, it may be observed that the facts of the above case were that there was denial of the relationship and also denial of the service of a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by the tenant. The learned Rent Controller after framing the preliminary issues and after having decided the same against the tenant passed an ejectment order without recording further evidence on the question of default. The above order was maintained in the first appeal. The tenant went in second appeal, but the same was also dismissed by the High Court, while dismissing the above appeal it was observed by Muhammad Afzal Zullah, J. (as he then was) that the principle of forfeiture of tenancy on account of false and contumacious denial of certain established and admitted facts qua relationship of landlord and tenant has correctly been applied. (iv) With reference to the above‑cited Supreme Court case, reported in 1978 SCMR 14, it will suffice to observe, that the Supreme Court maintained the order of ejectment passed by the learned Rent Controller without recording evidence on the question of default after having decided the issue of relationship in favour of landlord. In this connection it may be pertinent to reproduce hereinbelow the last but one para. of the judgment, which reads as follows: It was next contended that there was divergence of opinion on the point as to whether the ejectment application could be allowed straightaway in case the tenant disputed the relationship of landlord and tenant. In support of the proposition that the ejectment application could not be allowed, the learned counsel placed reliance on Muhammad Hussain v. Muhammad Bashir and others (PLD 1974 Lah. 447). However, a different view was taken by another learned Single Judge of the same High Court in Nisar Ahmad v. Nazar Muhammad at page 489 of the same Report. But a learned Single Judge. of the erstwhile High Court of Sindh and Baluchistan in Nooruddin and another v. Muhammad Qasim and others (PLD 1976 Kar. 921) dissented from this view. The learned Single Judge in the High Court placed reliance on the case of Nisar Ahmad v. Nazar Muhammad in declining to remand the case to the Rent Controller. However, it will not be necessary to examine the validity of the reasons given for and against the view for the case as it stands, it is an admitted position that the petitioner has defaulted in the payment of rent as he did not account the respondent as his landlord. On this view of the matter it would not have served any purpose to remand the case, for, the issue of default could not have been disputed. (b) From the cited and discussed cases, it is evident that if a tenant raises a frivolous plea and denies the title of his landlord or the relationship and if the Rent Controller on the basis of the evidence arrives at the conclusion that the plea raised by the tenant was unfounded, in that event, the Rent Controller may not record any evidence on the question of default and may pass an order of ejectment straightaway on the above ground. It may be observed that Dorab Patel, J. (as he then was) in the aforesaid Karachi case, reported in PLD 1976 Karachi 921, took somewhat a different view than what was found favour with Zakiuddin Pal, J. in the above‑cited Lahore case, reported in PLD 1974 Lah. 489, inasmuch as it was held by Dorab Patel, J. that not in every case the Rent Controller is entitled to pass an order of ejectment straightaway without recording evidence on the question of default for the reason that in some cases denial of the relationship or the non payment of rent may be justified on some cogent reason and in such a case, the Rent Controller had the discretion under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 not to pass an ejectment order on the ground of default. However, there is no divergence in the view of the Lahore and Sindh High Courts on the question that if a tenant raises a frivolous objection about the title or the relationship, in that event, the learned Rent Controller may pass an order of ejectment on the ground of default straightaway without recording any evidence on the above question. I am inclined to subscribe to the view found favour with Dorab Patel. J. in the above‑cited Karachi case."

23. In this case, the tenant was raising a frivolous objection about the title or the relationship. The learned First Appellate Court had also come to this conclusion. Whereafter such a rebellious tenant was liable to be ejected straightaway without recording of any further evidence in this case.

24. This Court is, therefore, remanding the case to the learned First Appellate Court decide the fate of the case immediately on the basis of this finding without leaving anything for the Rent Controller and continuation of its judgment impugned in the second appeal.

25. The case is remanded to the learned District Judge, Lahore for hearing it himself or for entrusting it to any other Additional District Judge and for giving effect to the findings of this Court. The parties are directed to appear before the learned District Judge, Lahore on 30‑6‑1999. In case they fail to appear, they shall be summoned. The learned First Appellate Court shall dispose of the matter without delay and by 30th of July, 1999.

26. The S.A.O. is dismissed with costs. H.B.T./A‑130/L Appeal dismissed.