1986 PLP 896 (CLC)

Amanullah Khan v. Chottay Khan 1978 S C M R Abdul 14 fol. Abdul Majeed Khan for Appellant. Kadir Bux Bhutto for Respondent. Date of hearing; 15th January, 1986. Both the Appeals Nos. 135 and 136 of 1981 have arisen from a consolidated judgment, dated 18‑2‑1979, of the learned IVth Additional District Judge, Karachi, in Rent Appeals Nos. 148 and 149 of 1979. The facts in both the appeals are identical in nature and they are, accordingly disposed of together. The facts in the background of the appeals, briefly stated, are, that respondent Muhammad Siddique son of Peer Muhammad was transferred urban property bearing No. LY‑7/18, Moosa Lane, Lyari Quarters, Karachi, by the Settlement Department under P.T.O., dated 29‑8‑1960 and P.T.D., dated 23‑8‑1962. The appellants herein Muhammad Siddique son of Ishaque and Ibrahim son of Khameesa, were in occupation of two residential tenements bearing Nos. G‑5 and G‑3, respectively, out of seven tenements standing on the plot referred to above. The respondent gave them notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act of 1958) transfer of the property to them and calling upon them to pay him rent @ Rs.15 per month, each. Notice to the appellant Muhammad Siddique was issued on 10‑11‑1966 and that to the appellant Ibrahim on 31‑8‑1966. The appellants did not respond to the notices and did not pay the rent. The appellant Muhammad Siddique was given another notice on 15‑9‑1967 and yet he did not pay rent. The respondent filed Rent Case No. 331 of 1968 against the appellant Muhammad Siddique and separate Rent Case No. 332 of 1968 against the appellant Muhammad Ibrahim on 7‑2‑1968 for their ejectment on the ground of their failing to pay the rent. The appellants approached to the Settlement Authorities for the transfer of the premises to them but they did not succeed at any forum. They filed a Constitutional Petition No. 488 of 1969. They withdrew the petition and it was dismissed, as such on 5‑9‑1969. They filed a Civil Suit No. 1962 of 1969 but plaint in the suit filed by them was rejected the rent cases were decreed on 9‑12‑1974 on the basis of decision of a preliminary issue whether there existed relationship of landlord and tenant between the parties. The appellants preferred Rent Appeals Nos. 10 and 11 of 1975 which were allowed by the learned Ist Additional District Judge, Karachi by order, dated 14‑2‑1977, whereby the cases were remanded for decision after recording the evidence on the question of default in payment of rent. The ejectment cases were decreed again on 18‑2‑1979 on the ground of default in payment of rent. The appellants preferred Appeals Nos. 148 and 149 of 1979 and their appeals were dismissed by the learned IVth Additional District Judge, Karachi, under impugned judgment, dated 15‑8‑1981. It would be worth mentioning that the learned counsel for the appellants had disclosed that the appellant Muhammad Siddique's mother Mst. Hawa Bai and appellant Ibrahim's sons Khameesa and Muhammad had made a joint application, dated 28‑12‑1982 to the Settlement Commissioner that P.T.O. and P.T.D. issued to the respondent were obtained by fraudulent means and the Deputy Settlement Commissioner/ Notified Officer cancelled the respondent's P.T.O. and P.T.D. by order, dated 19‑3‑1983 and the respondent challenged that order under Constitutional Petition No. S‑55 of 1983 and his petition was allowed by order, dated 2‑10‑1985. He has further stated that a petition for Special Leave to prefer appeal in the Supreme Court (being CP K‑No. 434 of 1985) has been filed on 31‑1‑1985 and the Supreme Court has been pleased to pass stay order, dated 6‑11‑1985. He has filed certified copy of the order which reads as under:‑ "The possession of the petitioners in respect of the disputed this protection will not apply to any ejectment under the Rent laws. The main petition to come up for hearing in Court on a date to be fixed by the office in December, 1985." The learned counsel for the appellant has urged that the respondent's title over the property was under dispute and, therefore, there did not arise any question of wilful default in payment of rent and he has placed reliance on the case, cited as 1983 S C M R 1064; 1985 C L C 526 and 2085. He has next contended that the rent demanded by the respondent by way of notices was excessive of the rent fixed by the Custodian and non‑payment of such excessive rent did not make the appellants liable of wilful default. He has further contended that the appellants were agitating the question of transfer of the property to the respondent before the Settlement Authorities and the filing of ejectment cases was premature. He has lastly urged that the notice, purported to have been given under section 30 of the Act were premature and the question of transfer of the property to the respondent was sub judice before the Settlement Authorities. Advancing his argument, the learned counsel has further contended that there was not willful fault on the part of the appellants warranting of order for their ejectment and he had made reference to several cases/ authorities which are cited as 1983 C L C 346; 1982 C L C 290 and 1982 C L C

436. The learned counsel has finally argued that the learned Controller should have exercised his discretion in favour of the appellants and he has relied upon cases P L D 1982 Kar. 188, P L D 1979 Kar. 921 and P L D 1976 Lah. 1052. The learned counsel has also mentioned that where there are questions of law and facts, the Appellate Court has to examine the evidence adduced by the parties, even though there are concurrent findings of the Courts below and he has placed reliance on the cases reported in 1973 S C M k 606 and P L D 1976 Kar.

811. On the other hand, the learned counsel for the respondent has urged that the respondent was transferred property under P.T.O. and P.T.D. and he gave requisite notices under section 30 of the Act of 1958 to the appellants but the appellants did not atone to his proprietary title over the rented premises and they did not only fail to pay the rent required by law but they also challenged his title and wilfully failed to pay the rent to him and thereby made themselves liable for the process of ejectment. He has further contented that the pendency of the proceedings before the Settlement Authorities did not absolve the appellants of the liability of paying rent to the respondent as required by law. According to him, even if the appellants considered that the rent demanded by the respondent was excessive, they should have offered or tendered the rent which had been fixed by the Custodian. He has placed reliance on a case 1983 C L C 1127. He has contended that the appellants by refusing to pay the rent made themselves liable to ejectment and he has made reference to the cases 1978 S C M R 14 and P L D 1974 Lah.

489. He has lastly contended that concurrent findings of the Courts below are not to be disturbed unless they are found to be perverse. In this respect, he has relied upon the cases PLD 1978 Kar. 188, P L D 1979 Kar 167 and 1979 S C M R

422. The respondent was transferred the rented premises under P.T.0. and P.T.D. He gave notices under section 30 of the Act to the appellant A of his title over the property and his claim for the payment of rent. Both the Courts below have concurrently held that the notices had been served on the appellants. Admittedly, no rent was paid to the respondent. He filed rent cases for ejectment of the appellants after expiry of the statutory period and cases have been decreed by the learned Controller and his decision has been upheld by the First Appellate Court. Of course, the appellants did agitate before the Settlement Authorities that they were entitled to the transfer of the property and challenged transfer thereof to the respondent but they could not succeed. But mere agitating of the transfer of property before the Settlement Authorities did not absolve the appellants of the liability of paying rent to the respondent who enjoyed the title of the ownership under P.T.O. and P.T.D. It was, therefore, a clear case of wilful default in payment of rent. In the cases relied upon by the learned counsel for the appellants viz. 1983 SCMR 1064 and 1985 C L C 526 and 2058, the question of title of the landlord was under clouds and it was observed that, in such a case, the question of title has to be determined first before seeking ejectment of the tenement. But, in the instant case, the respondent had derived title under P.T.O. and P.T.D. which stood intact during the course of proceedings and no such question of cloud over title was involved. As regards the cases relied upon in respect of wilful default and discretion of the Controller, they were not the cases of wilful default like the instant case. In this case, there was not only wilful default but it was a case of refusal to pay the rent and the Controller could not exercise the discretion in a manner other than that adopted by him in making order of ejectment of the appellants. Such view stands highlighted by the Supreme Court of Pakistan in a case of Amanullah Khan v. Chottay Khan 1978 S C M R

14. For the reasons recorded above, there is no merit in these appeals and they are dismissed with costs. The learned counsel for the appellant requests that the appellants may be given reasonable time for vacating the premises. They are granted two months time for vacating the premises. A.A. Appeals dismissed.