2013 PLP 2823 (YLR)

IRFAN SAADAT KHAN, J.

This constitutional petition has been filed against the judgment dated 28-4-2010 passed by the Additional District Judge, Tando Adam in Rent Appeal No. 11 of 2009, with the following prayers:-- (1) Declare the judgment dated 28-4-2010 of the Additional District Judge, Tando Adam in Rent Appeal No. 11 of 2009 is illegal without lawful authority, ab initio, null, void, of no legal effect and is set aside. (2) Declare the order dated 7-10-2009 of the Rent Controller, Tando Adam in Rent Application No. 24 is stood restored and exists on record with full legal force to implement the same in accordance with law. (3) Cost of the petition be borne by the respondents. (4) Any other relief this honourable Court deems fit and proper in the circumstances of the case."

2. Briefly stated the facts of the case are that Property bearing No. IV-A, 583, City Sitrey No. A-149, situated at Amarsingh Street, Tando Adam, originally belonged to the late father of the petitioner, namely, Muhammad Yaqoob and after his death the same was inherited by the petitioner namely Mr. Abdul Rauf and other legal heirs of late Muhammad Yaqoob. This property was let out on rent by Ayaz Ali, brother of the petitioner, to respondent No.3 in the year 1968-1969 at a monthly rent of Rs.50. The respondent No.3, thereafter, opened a girls primary school, in the name and style of "Zeenatun Nisa. Government Girls Primary School" and since then the school is running on the said premises. However, somewhere in 1987 the relationship between the petitioner and the respondent No. 3 strained and as per the petitioner, the respondent No.3 stopped making payment of the rent in the year 1987. The petitioner served a legal notice on the respondent No.3 on 28-8-2004 stating therein that since they were neither paying the rent nor vacating the premises hence they were liable to be ejected from the said premises. No reply for the same was filed by the respondent. Thereafter, the petitioner filed the Rent Application bearing No.24 of 2004 against the respondents by agitating that since they had wilfully defaulted in payment of rent hence they were liable to be ejected. The matter thereafter proceeded before the Rent Controller, Tando Adam, who, after examining the parties in detail vide judgment dated 26-3-2007 allowed the said Rent Application and found the respondent No.3 to have committed default in payment of rent from July, 1987 and was directed to vacate the premises within 90 days from the date of the said order. The respondent challenged this order in Rent Appeal No. 1 of 2007 and the Additional District Judge, Tando Adam, vide his order dated 22-7-2009 remanded the matter back to the Rent Controller with the directions to decide the matter afresh after giving opportunity to the appellant to produce their witnesses for cross-examination. The matter, thereafter, proceeded and Rent Controller this time, vide his order dated 7-10-2009 came to the conclusion that the respondents have committed default in payment of rent from July, 1987 onwards and directed them to vacate the premises within 60 days of the order. Being aggrieved with the above order, the respondent filed Rent Appeal No. 10 of 2009, which was allowed by the Additional District Judge, Tando Adam, by making the following observations:-- "

14. It is also observed that Aijaz Ali never claimed for rent or even issued any receipt of payment of rent or file application for ejectment of Government School during a period of about 20 years. The applicant has not explained the reasons as to how during life time of his father, Aijaz Ali let out premises to School and as to why rent was being offered to his brother in 1987 though original owner Haji Yakoob was alive at that time as per his death certificate and has also not explained the reasons for not claiming rent or ejectment on the ground of default for last about 17 years which sufficiently establish and compel me to believe the version of the appellants that the premises in question was donated by the deceased father of the respondent to the School and there exists no relationship of landlord and tenant between the parties, therefore while answering above point in negative, I allow this appeal and set aside the impugned order and consequently dismiss the rent application filed by the respondent with no order as to costs." It is against this Judgment that the present petition has been filed.

3. Mr. Hassan Shaikh, learned senior counsel has appeared on behalf of the petitioner and stated that the impugned order is not in accordance with law, since, the learned appellate Court has failed to consider that the respondents have failed to produce any evidence in support of their contention that the said plot was donated by the late father of the petitioner namely Mr. Muhammad Yaqoob to them. He states that not only once but twice the matter was heard by the Rent Controller and on each time the Rent Controller decided the matter in favour of the present petitioner, hence, there was no justification available with the learned appellate Court for not considering the findings, evidences of witnesses recorded and other material produced before the Rent Controller. Learned counsel states that the observations made by the learned appellate Court are totally incorrect and have no bearing with the facts of the case. He states that the learned appellate Court has no jurisdiction while deciding the case to decide the issue of title of the property, which was not a disputed matter before him. According to him the appellate Court thus has transgressed its jurisdiction by allowing the appeal on an issue which was not the subject-matter of the appeal. Learned counsel submitted that there was no dispute with regard to the title of the property and by allowing the appeal on this aspect the learned appellate Court has passed an order which is not warranted under the law. He states that no cogent reasons were given by the appellate Court while rejecting the order of the Rent Controller. He vehemently submitted that the learned appellate Court has not considered the evidences available on the record and has passed the order on the basis of verbal submissions made by the respondents. He further states that the ownership of the property vest with the petitioner, hence, he is fully authorized under the law to get the respondents ejected from the property on the basis of non-payment of the due rent. He also submits that Martial Law Regulations (MLR) have nothing to do with the ownership of the property. He further submits that the principle of estoppel applies to the present case, since the respondents have accepted the petitioner as landlord of the property and legally speaking the respondents were estopped from agitating the issue regarding the ownership of the subject property. He submits that the principles of res judicata and estoppel by principle fully applies to the present case, as the material facts regarding ownership of the property had never been disputed by the respondents; hence, the learned appellate Court was not justified in allowing the appeal on this issue. Learned counsel also submitted that P.T-1 Form is in favour of the petitioner. In support of his above contentions the learned counsel has relied upon the following decisions:-- (1) Abdul Rahseed v. Maqbool Ahmed (2011 SCMR 320) (2) Mst. Roshan Akhtar v. Muhammad Bota (2000 SCMR 1845) (3) Province of Punjab v. Kh. Muhammad Ilyas (2000 SCMR 893) (4) Province of Punjab v. Ch. Khan Muhammad (1989 SCMR 558) (5) Board of Foreign Mission v. Govt. of Punjab (1987 SCMR 1197) (6) Muhammad Hayat v. Sh. Bashir Ahmed (1988 SCMR 193) (7) A.C.E. Enterprises v. Addl. Dist. Judge, Lahore (1987 SCMR 1174) (8) Muhammad Anwar v. Abdul Shakoor (1982 SCMR 1120) (9) Muhammad Ismail and Bros. v. Muhammad Tahir (1981 SCMR 139) (10) Pir Buksh v. Chairman Allotment Committee (PLD 1987 Supreme Court 145) (11) Mst. Khair-un-Nisa v. Malik Muhammad Ishaque (PLD 1972 Supreme Court 25) (12) Deputy Director (Nationalization) Hyd. v. Syed Zahoor-ur Hassan (1982 CLC 1640)

4. Learned A.A.-G., on the other hand, has supported the order of the learned appellate Court and at the very outset stated that no relationship of landlord and tenant exists between the petitioner and the respondent No.3. He stated that Muhammad Yaqoob Ansari, the late father of the petitioner, in his lifetime donated the said property for formation of a primary school for girls without any compensation and consideration in the year 1968-1969. He submitted that thereafter in the year 1972, as per President's Order No.6 of 1983, the said school was taken over by virtue of "Privately Managed Schools and Colleges (Taking over) Amendment Order, (1983) and since then the school is being successfully run by District Education Department, hence, the question of payment of any rent does not arise and the stand taken by the petitioner is totally incorrect. He submitted that if for argument's sake it is assumed that the respondent stopped making payment of rent in the year 1987 then how come the application for ejectment was filed as late as in 2004 i.e. after a lapse of 17 years. He submitted that the school was built by the mohallah people and the petitioner is not the owner of the property. He submitted that the decisions, relied upon by the counsel for the petitioner, are distinguishable. In the end he submitted that the present petition may be dismissed as the petitioner has approached the Court with unclean hands and with mala fide intention.

5. I have heard both the learned counsel at considerable length and have perused the record, relevant law and the decisions relied upon.

6. As per the averments of the petitioner the school was given on rent by the brother of the petitioner in the year 1968-1969 to the respondents, whereas it is an admitted fact that no rent agreement in this regard available with him. Though the petitioner produced a rent receipt of Rs.50 showing that the said property was let out to the respondents but the learned appellate Court found the said receipt to be dubious. It is also an admitted fact that except producing a receipt of Rs.50, no receipt of receiving the rent from the year 1968-1969 till the year 1987, up-till which period according to the petitioner the respondents were paying the rent, was produced. Learned appellate Court has made a categorical observation in this regard that no receipt for the period between 1968-1969 to 1987-1988 i.e. 20 years was produced by the petitioner during the trial to prove his case that the respondents were his tenant though it has been averred by the petitioner that after the year 1987 the respondent No.3 had stopped making the payment of rent to them. Be that as it may, even assuming for argument's sake that after 1987 the respondent No.3 had stopped the making of payment of the rent to the petitioner, it is beyond comprehension that no receipt of rent for the period prior to 1987 is available with the petitioner. It is also seen from the record that the petitioner claims himself to be a legal heir of the deceased Muhammad Yaqoob, being his father, and claims that the property was given on rent by his brother to the respondents, however, it is nowhere stated that when his father expired in the year 1989 how it is possible that the said property was given on rent by his brother in the year 1968-1969 when his father was alive and such property was not even devolved either upon him or upon his brother. As per the, record it is clear that the respondent No.3 has categorically denied the relationship of landlord and tenant on the ground that the said place was donated to the school by the late Muhammad Yaqoob and hence payment of rent does not arise and when there was no question of payment of rent, the question of default in paying such rent hardly arises. Respondent No.3 pleaded before the appellate Court that even for argument's sake if it is accepted that no rent receipt is available, with the petitioner, a copy thereof should be available in the office of the respondent No.4. However, no such rent receipt was either available or issued, which also proves that the claim of the petitioner that he is the owner of the property is also incorrect as had there been a relationship of landlord and tenant between the petitioner and the respondents there should have been a proper record available in the office of the respondent No.4, which is a government department. It is also seen from the record that the petitioner produced certain receipts regarding payment of rent but the learned appellate Court after discussing the matter in detail found that firstly those receipts were either not bearing proper signatures and secondly from the receipts it appears that the payment has been made through cash, which payment cannot be made as the government payments are usually made by way of cross cheque etc. and hence payment of the alleged rent by way of cash hardly carries any weight. It is also an important aspect that all the proceedings have been initiated by the petitioner by stating that the property was rented out by his brother Ejaz Ali but it is strange to note that at no stage of proceedings the said Ejaz Ali had claim about either giving the said property on rent or issuing any receipt in this regard. It is also strange to note that the proceedings of ejectment have been filed by the petitioner and not Ejaz Ali, who admittedly had been alleged to have given the said property on rent to the respondent No.3.

7. Apropos the submissions of the learned counsel regarding M.L.R it is observed that the said School was taken over through a valid legislation and the then school management had never challenged the same. Hence the petitioner could not agitate the same at this belated stage. So far application of principles of estoppel and res judicata are concerned suffice to say that the respondents never accepted the petitioner to be the landlord or owner of the premises hence these principles, in my view, had no bearing to the present petition.

8. So far as the contention raised by the learned counsel for the petitioner that PT-1 Form is in his name, suffice to say that mere entries in the Excise and Taxation Register in respect of premises would be of little value for the purpose of establishing relationship of landlord and tenant. Reference, in this regard, may be made the decision given in the case of Fateh Gul v. Anwar-ul-Haq Huda, reported as 1987 CLC 635.

9. In view of the explicit findings made above and by considering the observations made by the appellate Court in its exhaustive and elaborate judgment, I am of the view that no case either of ejectment or that of default in payment of rent is made out by the petitioner. In the instant petition the petitioner has failed to establish on the basis of facts and material available on record that firstly there exists any rent agreement between him and the respondent, secondly whether there was a default of respondent in paying the said rent and thirdly whether he has any locus standi to claim such rent. The decisions relied upon by the learned counsel for the petitioner have also been considered and are found to be distinguishable.

10. In view of the facts noted above, this petition is found to be devoid of any merits and is hereby dismissed. AG/A-64/K Petition dismissed.