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Wart Pakistan Urban Rent Restriction Ordlaanes (VI of 1959)‑

‑‑ S. 13(2)‑Eviction of tenant‑Lsrdlord and tenant, determination of relationship as preliminary issue‑Relationship of landlord and "" tenant between parties not disputed before Rent Controller and fact of tenant appellant having himself filed application against landlord

admitting to have paid rent to previous landlord‑Order of Rent Controller directing, by consent, deposit of arrears of rent by tenant under S. 13(6) of Ordinance also not challenged‑Tenant also depos ing before Rent Controller to have remittted rent to respondents by money order and same having been refused‑Held r Not at all necessary in circumstances for Controller to have raised issue of existence of relationship of landlord and tenant between parties and try it as a preliminary issue. [p. 946jA, B & C

Akhtar Ali Parvez v. Altafur Rehman P L D 1963 Lab. 390 and Faklr‑

Muhammad v. Mulla Mahmood P L D 1973 Quetta 1 distinguished

Syed Saml Ahmed for Appellant.

_., Zaheeruddin Khan for Respondents.

Date of hearing : 1st June 1977.

‑i

These five Second Appeals bearing Nos, 153/76, 154/76,155/76,156/76 and

157/76 are against the common order dated 3‑4‑1976 passed by the District‑

Judge, Tharparkar, in Rent Appeals Nos. 42/75, 43/75, 44/75, 45/75 and 46/75 and since the appeals are based on facts common to all and involve common question of law I propose to dispose them of toga taer by this judgment.

2. The' facts giving rise to these appeals briefly stated, are that one Faseh Mohammad father of respondents 4 sad 2 and Munir Ahmed respondent 3 jointly purchased 16 one‑room quarters bearing City Survey Nos. 1014 to 103() situated at Gharibabad in front of Motiram Cotton (finning Factory, Mirpurkhas, foam its owners Rcpchand Chtlaram trough a regis ered sale deed Bated 30 6‑1973. Th;reafter, by serarate notices under section 13‑A of the West Pakistan Urban Rent Reatfid4ion Ordinance. 1959 (hereinafter referred to as the Ordinance) dated 20‑10‑1973 served on the appella%ts by Mr. Bashir Ahmed Siddiqui, Advocate on behalf of the father of respondents 1 ‑end 2 and respondents 3, they were informed of the :ransfer of ownership of the houses and. were required to attorn to the new owners and on appellants' failure to compl , with the, notice, and pay the tent, the .ether, of respon dents I and 2 and respond:Ot 3 (hereinafter jointly called the. respondents) filed cu 7‑3‑1974 separate‑ applicatibns under section 13 of rue Ordinance with the Rent Controler, Mirourkhas, for eviction of the appellants on the ground of non‑payment of rent and requirement of the premises for bona fide personal ‑needs. These applications were numbered as Rent Applications Nos. 9/1974, 10/1974, 11/1974, 12/E974‑and 13/1974.

3. It appears that on:‑4‑10‑1 973 the appellant also file applications under section 15(2), explanation (fd) df the Ordinance;. wtih the Controller Mirpurkhas, seeking permission to deposit the rent of the premises and the Controller by the order dated 5‑10‑1973, pe,mcited the appellants to deposit the rent at their own risk.

4. The appellants in their objections filed on 29‑5‑1974 claimed that they

were in possession and enjoyment of the premises Zouthe last 30 years w)thuut

payment of any rent to the previous owaers.of the Modral,,Cotton ,ginaing

pactory as they were the labourers of the said factory "d' tire quarter were

pro*ided to r>em by.thepreri.:)us wvntrs free of rent. Tbey'howevcr, Showed

their willingness and re ,diaess =p attorn to the respondents on production of

their title‑deed. They reveitheles denied that they were defaulters in payment

of rent and also de :fed the rijh bf the respondents to evil, them from the

premises. ‑.

5. Tho appellants at the time of passing of order of deposit of rent under section 13(6) of the Ordinance did no: dispute the reiatioaship of landlord ani tenant sued therefore, the Controller passed the order of depoid of arreftrs of rent and faturo rent to accordance with the provisions of section 13(6) of the Ordinanoa. It will however, ')e useful to rewoauca hem inbelow this order to extehsa4s it would he referred to subsequently to meet the sole contention of. the learned counsel for the appeliagti raised before me, namely, that the appllqa" tif the respondents ueder secti ‑n 13(2) of the Ordinance eras not mfr :iolna6le baf6re the Controller, because there was no relationship of landlord and tenant between the parties:

"17‑7‑74. Order under section 13(6) of W. P. U: R. R. Ordlnance. Heard of Mr. Bashir Ahmed Siddiqu9; Advocate for applicant and N9r. Mohd, Siddique for opponent who states that relationship of landlord and tenant not disputed so also he does not disput> , that opponent himself filed Misc. R. C. No. 22/73 against applicant, wheat she admitted that property has not been purchased by applicant arid

Hello v. HAY* (Nalmuddfn, J) Keakcai 945

he was paying rent to previous landlord at Rs. 3 p.m. up to June, 197.3.

As such by consent it is ordered that opponent to deposit arrears of rent from July 1973 to 31‑7‑74 Le. 13 months at Rs. 3 p.m. i.e. total Re. 39 within one month from today and continue depositing monthlv rent before 15 of every calender Month. Adjourned to 30‑7‑74 for issues."

6. Thereafter, on 30‑7‑1974. the Controller framed the following issues and decide) all the issues against the appellants except issue of default in payment of rent, by the order dated 27‑2‑1975

(1) Whether the applicants (respondents) purchased the property in question and acquir:d the ownership of the same

(2) Whether the opponent is a defaulter

(3) Whether the applicants (respondents) bona fide require the property in question for their own use and o;;cupation and that of their children

(4) What should be the order

It may be mentioned that the evidence led on behalf of the parties was sanne in all the cases with the exception that each appellant had examined himself in the case concerning him.

7. Aggrived icy the aforesaid order the appellants preferred five separate appeals under section 15(1) of the Ordinance which were rejected by the Dietriv‑t Judge, Tharparkar by the common order dated 3‑4‑1976 impugned in these five appeals.

It may be mentioned tsar the applications were filed by Fateh Mobammmad and Mohammad Ahmed. but after the decision of the applications F&Uh .Mohamm.d died and there:ore his legal representatives were joined as parties to the appeals as respondents 1 and 2.

Before the District Judge, Tbarparkar, only the finding on issue concerning the bona fide requirement of the quarters by the respondents vas challenged but the learned District Judge. Tharparkar by the impugned order confirmed the finding of the controller on this issue.

8. 1 have heard Mr. S. Sami Ahmed, Advocate for the appellent and Mr. Zabeeruddin Khan Advocate for the respondents.

9. The learned counsel for the appellants has contended that the application under section 13(2) of the Ordinance filed by the respondents was not maintainable before the Controller because there was no relationship of landlords and tenants between the parties. In support of the contention the learned counsel referred to the.contentt of pare. 2 of the objections which read as follows:

"Contents of para. No. 2 of the application are admitted to the extent that the opponent is in possession and enjoyment of the snit p emises as the labourer of Messrs Pehloomal Motirarn Cotton Ginning Factory of which Seth Roopchand is the Proprietor; of Karta. The Opponent did not pay any rent for the last 30 years or s , The quarter in question was provided free of rent to the opponent as a labourer of Factory a labourer which the opponent was "

10. On the basis of the above objections the learned counsel submitted that the Conero*r ought to have framed an issue with regard to the relationship

yto AW. aJy a , . _..r._ _,_ T _ ________ _

of landlord anod tenant and ought to have decided it as. ‑p preliminary issue. The learned counsel in support. of the above submission referred to Akhtar All Parrez v. Altafur Rahman (1) and Faklr Mohammad v. Mulls Mahmood (2).

In the first cited case the question which came up for considdration of the Fall Bench was where there is a denial by the alleged tonarA of the, relationship of landlord and te ant, it is incumbent upon the Rent Controller to decide first the question of existence or non‑existence of that relationship and only then order the tenant to dap‑sit the arrears of rent etc. if the preliminary question is decided against, the Full znch answered the question and inter alia it was observed as follows:

"it seems to me that when an ohjectian is taken to the jurisdiction of the Tribunal, that objection must be treated as a preliminary objection and must be rC3 IVeA before taking any further action."

Ira the Quetta case it was observed that the Rent Controller can proceed with‑ an application under section 13 of the Ordiuance only if the finds that relationship of landlord and tenant subsists. In case of a dispute between the pasties on that score, he has to decide it as a preliminary issue.

11. In my opinion the contention of the learned counsel for the appellanks is untenable is the dace of the order of the Controller dated 17‑7‑1974 before rvho t the relatiuaehip of landlord and t nant 'between the parties was not disputed and it was also not disputed that the appellants themselves hart filed miscxllensous taut application against the re pondents, wherein they had adaalttcd that they were paying rent to the previous landlord at leg. 3 pet month and had paid the same upto June, 1973. 'Jibe learned Adirocote for the sppeltnts has not challenged the order of the controller dated 17‑7‑197 which ha.; been quoted heminabove in extenso, as regards the correctness o the atatf=eut of the Advocate‑ for the appellants that he did riot dispute the existence of the relationship a)f landlord and tenant between the parties not only that, the appellants had also admitted the existence of relationship of landlord and tenant in the rent application filed by them for deposit of rent in the; following w orbs;

"The applicant is residing in quarter baring Nos. 1023 and 1025 situated in Gharibabad infront of Motiram Cotton Ginning Factory, Mapurkhas since last 50 years and paying rent regularly to the owner at the rate of Rs. 3 per month each. The applicant is paying rent regularly to the previous owner."

Further, in their depositions before the Controller as each of them had stated that although he had sent the rent 5y money order to the respondents but they had refused to accept. I may reproduce in verbatim the deposition ofd one of the appellants which is as follows‑,

"1 sent money order to the applicant which was refused and thereafter I started depositing the rent in Court of Rent Controller. 1 era depositing Rs. 6 par month as rent of the two quurters at the rate of Rs. 3. 1 produce postal money order receipts:'

12. In the face of the admission before the Controller I am of the view, that it was not all necessary for the Controller to rise the issue of the existenC of relationship of landlord and tenant between the parties and try it as a preliminary issue.

13. In the Quetta case relied upon by the learned counsel for the

(1) P L D 1963 Lah. 390 1 (2) P L D 1973 Quetta 1

1977 ‑ NAWAH 13ROTHEAS y. COLLECTOR OF CUSTOMS I‑AlACHi 947

(Nalmuddin, J)

appellant Agba Ali Haider, 1. has laid down that in case of dispu.c as to the existence of relationship of landlord and tenant between the parties the Controller has to decide the issue as preliminary issue but in the present case as stated above, no dispute as to the existence of relationship of landlord and tenant was raised befne the Controller. la fact the existence of the relationship was admitted when theController passed order under section 13(6) of the Ordinance. In Akhtar All Perrez's case the lull Bench aftdr Wng down the ruse had pnomeded to examine the question whether challenge to the jurisdiction was justified or not and after examining the question their Lordships were pleated to hold that the rule laid down by them was not attracted in that case as the notice under section 30 of the Displaced Perrions

(Compensation and Rehabilitation) Act, 1958 receipt of which was denied was in faoi6 served on the tenant. Therefore, such a question could be examined In these appeals also but in the present case it Is not necessary to do so as it does not arise is view of what has been stated hereinbefore.

14. It is also worthy to note that when issues were framed no issue as to the existence of relationship of landlord and tenant was sought to be rained

and no suggestion or application was made later on even for amendment of the issues.

15: Before parting with the case, I may also mention that the learned counsel for the appellants had also contended that the finding of the Controller on the issue of the bona fide requirement of the premises by the respondents for their personal use was arbitrary but had subsequently not pressed it and I may say rightly s;r, as it cannot be any stretch of imagination, be called arbArary for it was based on the evince of the respondents and their Wtnesm Nasimuddin and Imamuddin.

I therefore, find no substance in all these appeahi and dismiss them with costs.

s. A. 8. Appeals dfssi yra;td

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