1992 PLP 1246 (CLC)

This Second Appeal in a rent case calls in question the order dated the 11th of June, 1991, of the learned Addl. District Judge, Gujrat, whereby he dismissed the appellant‑tenant's first appeal affirming his eviction from the disputed shop as ordered by the Rent Controller.

2. The application was initially brought by the respondents' predecessor Muhammad Hussain deceased on the grounds firstly for his personal requirement; secondly for reconstruction of the shop; and thirdly for default on the part of the appellant‑tenant in paying rent for the period January‑March, 1987.

3. The appellant contested the application raising a number‑of pleas which called for framing no less than seventeen issues. He pointed out that a similar application was brought against him earlier on the 22nd of April, 1979, by Muhammad Hussain deceased's real brother Abdul Karim but the same failed on acceptance of his objection by the Rent Controller that the .shop being jointly owned by both the brothers, Abdul Karim alone could not maintain it. He added that now when it was instead being claimed exclusively by the deceased Muhammad Hussain, he failed to give him a notice under section 13‑A of the Punjab Urban Rent Restriction Ordinance, 1959, making the application as on his behalf quite untenable. He denied existence of all the grounds taken up in the petition for ejectment and claimed compensation to the tune of Rs.60,000 for improvements effected by him in the shop at his own expense.

4. Before framing issues the learned Rent Controller directed the appellant to deposit rent in terms of section 13(6) of the Ordinance. All issues were held against the appellant‑tenant excepting No.2 relating to personal requirement of the deceased landlord. In fact, his demise was taken to have extinguished his personal requirements whatsoever, and it was thought that his successors should have indicated their own. They did not ask for any such amendment and an inference was drawn that they had none. However, the grounds of default and reconstruction were concurrently upheld.

5. The finding as to default was seriously assailed. The appellant's stance was that he had been depositing rent in the Court but in the names of both the brothers viz., Muhammad Hussain and Abdul Karim. The reason, according to him, was that in the earlier application brought by Abdul Karim alone, a finding was recorded by the Rent Controller that the shop was jointly owned by them and that he had had no notice under section 13‑A ibid, from Muhanamad Hussain deceased of having become its exclusive owner. The latter, or for that matter his successors. objected to this mos4e of deposit stating that it was mischievous, contumacious, mala fide in as much as it created hurdle in withdrawal of the amount from the Treasury by Muhammad Hussain alone, and in addition was opposed not only to section 13(6) but also the rule enunciated in Khawaja Ghulam Mustafa v Mian Waqar Ahmad PLD 1980 SC 9.

6. The Courts below concurrently held that the petition being on behalf of Muhammad Hussain alone, there was no idea of the appellant choosing his own option of depositing rent in the names of both the brothers merely because in the year 1987 in an earlier round, a Rent Controller held them to be joint owners of the shop. The pica of notice under section 13‑A was also spurned, in that no such objection was raised by the appellant in yet another application of the same type brought by Muhammad Hussain deceased alone and that now he was precluded to deny his status of tenant under him. Reliance in this behalf was placed on Aziz Begum v. Fayyaz Butt 1991 CLC Note 9 at p. 6 wherein it was observed that relationship of landlord and tenant once established or admitted, could not be later‑denied by the tenant.

7. It was argued that since there was background of the shop having been owned by both the brothers, the appellant was amply justified in depositing rent in the name of both. I regret I was not persuaded by the plea. The present petition was brought by Muhammad Hussain deceased alone. The Rent Controller's order dated the 16th of September, 1987, requiring deposit of rent did not direct deposit in the names of both the brothers. Even if it did not specifically or pointedly direct deposit in the name of Muhammad Hussain alone, the presumption would be that it was intended to be for the benefit of the petitioner alone whoever he may hive been. Obviously it was not meant for the favour of his brothers, sisters or so. The rule enunciated in the Khawaja Ghulam Mustafa's case fully applied and the deposit was rightly held mala fide.

8. Counsel stressed absence of notice under section 13‑A by Muhammad Hussain deceased. The objection was really formidable but the finding recorded in para. 8 of the impugned judgment established that by having failed to raise ‑ such objection in the earlier application brought only by Muhammad Hussain, the appellant was now precluded to take it up. The finding was:‑ "It may be pointed out here that Muhammad Hussain has also instituted an eviction petition prior to the registration of the present petition and had withdrawn it. At that time no such objection was raised by the appellant, rather he admitted the predecessor‑in‑interest of the present respondents as landlord. In case Aziz Begum v. Fayyaz Ahmad Butt 1991 CLC Note 9 at p.6 it has been held that relationship of landlord and tenant once established or admitted cannot be denied by the tenant " ' The appellant did not deny institution of the previous application by the deceased Muhammad Hussain alone, and also his own failure to raise this objection against the same. On the contrary, absolute withdrawal of the aforesaid application by the deceased was claimed by the appellant to bar the present application under Order XXII1, rule 1, C.P.C. Even an issue framed to A that effect was ultimately found against the appellant. Did it not all constitute notice of title of the deceased‑landlord? The answer shall incontrovertibly be in the affirmative and still to raise the bogey of absence of notice under section 13‑A would be simply otiose. The view adopted by the learned Additional District Judge was unexceptionable.

9. No other point was urged. The appeal is dismissed with costs throughout. Since full‑dress arguments were heard on behalf of both the parties, it was treated as a `Pacca' case. A period of three months is allowed to the respondent for delivery of vacant possession. A.A./M‑254/L Appeal dismissed.