1994 PLP 1782 (CLC)

This is a Second Appeal from the Order of the Rent Controller, Lahore dated 11‑7‑1993 which was maintained in' appeal by the Additional District Judge, Lahore on 21‑12‑1993, directing eviction of the petitioner from the property bearing No. S‑90‑R‑10 situate at Urdu Bazar, Lahore.

2. The appeal arises out of an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 filed by Muhammad‑ Rafiq Chaudhary, respondent herein, as attorney of his wife, Mst. Balqees Rafiq against the appellant on the grounds of default in payment of rent and personal need. In the written statement filed by the appellant, he denied that he was tenant under the respondent but instead pleaded that his landlady was wife of the respondent. The allegation regarding default was specifically disputed. It was stated that the rent was being duly deposited with the Rent Controller and stood paid up to date.

3. The learned Rent Controller framed the following issues:‑‑ (1) Whether the relationship of landlord and that of the tenant exists between the parties? OPA (2) Whether the petition is false, frivolous and, therefore, the respondent is entitled to compensatory costs? OPR (3) Relief.

4. Issue No.l was answered in favour of the respondent No.l by the Rent Controller on 11‑7‑1993 who. took the view that the respondent No.l, as attorney of his wife, is entitled to receive rent and, was, therefore, a landlord within the meaning of section 2(c) of the Punjab Urban Rent Restriction Ordinance. It was further observed that denial of existence of relationship of landlord and tenant between the parties on the part of appellant was contumacious and he had forfeited the tenancy. Consequently, an order of eviction without any further inquiry was passed in favour of the respondent and against the appellant. This order was affirmed by the Additional District Judge on 21‑12‑1993 who too was of the view that as the tenancy had been denied by the appellant, it stood forfeited. Hence the Second Appeal.

5. Learned counsel for the appellants has submitted that it stands proved from the record that the property in question belonged to the wife of respondent who was landlady of the appellant but even if the respondent is considered to be landlord within the meaning of Punjab Urban Rent Restriction Ordinance, 1959 still no order of ejectment could be passed against the appellant on the ground of denial of tenancy as the concept of forfeiture is wholly foreign to the Rent Restriction laws.

6. Learned counsel for the respondent has, on the other hand, vehemently contended that as the appellant has contumaciously denied the existence of relationship of landlord and tenant which was held to exist by the Rent Controller as also the Additional District Judge, the appellant was liable to be ejected straightaway.

7. According to the finding recorded by the Rent Controller as also the Additional District Judge, the property in question belongs to the wife of respondent who had filed the ejectment petition as attorney of his wife. In the written statement filed by appellant, he had stated that he was tenant under the wife of the respondent who was not his landlord. The Rent Controller as also the Additional District Judge held the respondent to be landlord in his capacity as attorney of his wife. In these circumstances, it could not be said that there was any contumacious denial of the tenancy by the appellant nor could an order of ejectment have been passed without holding any inquiry into the grounds in which the ejectment was sought.

8. The question of forfeiture of tenancy stands decided by the Supreme Court in Makhan Bano v. Haji Abdul Ghani (PLD 1984 Supreme Court 17) wherein it was ruled that under the general law tenant's denial of landlord's title simpliciter does entail forfeiture but it is not so in a case arising under the Punjab Urban Rent Restriction Ordinance, 1959 and ejectment of tenant cannot be ordered merely on the ground that he had disputed that he was tenant under the landlord. In view of the pronouncement of Supreme Court, it was not open to the Rent Controller as also the Additional District Judge to hold that the tenant had forfeited his tenancy in view of his denial of the status of the respondent as his landlord.

9. There may be cases where if it is found that the relationship of landlord and tenant exists, no further inquiry is called for and an order of ejectment can be passed straightaway but it depends upon the facts of each case. If in the written statement the tenant does not plead payment/tender of rent, the question of any inquiry into default does not arise as there is no plea which needs further examination. The position is, however, different in the present case. In the written statement filed by the appellant, he had specifically averred that he had been depositing the rent with the Rent Controller and updodate rent stood paid. In face of this assertion, the Rent Controller, after holding that the relationship of landlord and tenant does exist, should have proceeded to pass an order under section 13(6) of the Ordinance, framed the necessary issues and allowed the parties to lead evidence. It is only thereafter that a final order could have been passed. In view of what has been stated above, this appeal is allowed; the impugned orders of the Rent Controller as also the Additional District Judge dated 11‑7‑1993 and 21‑12‑1993 respectively are set aside and the ejectment petition is remanded to the Rent Controller for decision afresh after framing the relevant issues and allowing the parties to lead evidence. The Rent Controller shall decide the matter within six months from today. No order as to costs. AA./M‑1634/L Appeal accepted.