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S. A. O. No. 25 of 1974, decided on 12th May 1974.

S. 13-Landlord and tenant-Relationship of-Determination of question necessary to confer jurisdiction on Rent Controller -Decision of question, however, held, not necessarily to be made by framing an issue and trying it as formally as civil Courts do.

Khadim Mohy-ud-Din and another v. Rehmat Ali Nagra and another PLD 1965SC459ref.

S. 13-Admission by one tenant-All tenants jointly interested in subject-matter of suit-Admission of one of such tenants, held, binding on other tenants.-[Admission].

Aminar Rehman v. Shaukat Ali P L D 1958 Dacca 356 ref.

-- S. 13 read with S. 2--Word "landlord" -Co-tenant admitting peti tioner's husband to be landlord of premises-Petitioner, held, rightly found to be landlady in circumstances.

S. 13-Eviction proceedings-Ex paste order, cancellation of Appellant making application for having ex paste proceedings set aside Fact, held, show appellants' knowledge of proceedings-Fact of not pursuing application against him, showed appellant being not interested in contesting application-Question of tenancy having been decided, and order of deposit of rent passed long after appellants' application to Rent Controller for having ex pate proceedings set aside, impugned orders, helm could not be said to have been passed without notice to appellant.

Hakam Qureahi for Appellants.

Sh. Zia Ullah for Respondent No. 1.

Nemo for the Remaining Respondents.

The facts leading to this second appeal are as follows:

Mst. Zarina Akram respondent No. 1, filed an ejectment petition against Raja Muhammad Akbar Khan, respondent No. 3, alleging herself to be the landlady and him to be the tenant in respect of a house in Gulberg-II, Lahore, bearing No. 11-L, Gulberg. However, since, according to her, it was, in fact Raja Muhammad Akram Khan, the father of the said respondent, who was tenant originally and who had died before the institution of the ejectment proceedings, she realized that all the heirs of Raja Muhammad Akram Khan should have been impleaded. Accordingly she amended her petition and impleaded along with Raja Muhammad Akbar Khan, respon dent No. 3, his two brothers, his mother and one sister. The brothers Raja Muhammad Afzal Khan and Raja Muhammad Azhar Khan and the mother Mrs. Raja Muhammad Akram Khan, are the appellants, before me while the sister Mrs. Rana Khurahid Anwar is respondent No. 2. But before the amendment of the petition respondent No. 3 had already filed his written statement in which he admitted that the house in question had been leased out to him by the husband of Mst. Zareena Akram and that there was no dispute with regard to the rate of rent. He also admitted that he had been paying rent to the husband of the said lady by means of cheques which, however, were not encashed. But subsequent to the amendment of the petition respondent No. 3, Raja Muhammad Akbar Khan, changed his position and denied the tenancy altogether. Appellants Nos. 1 and 2 Raja Muhammad Afzal Khan and Mrs. Raja Muhammad Akram Khan filed separate written statements though in almost the same terms as Raja Muhammad Akbar Khan, respondent No. 3. Raja Muhammad Azhar Khan appellant No. 3 was proceeded against ex parte as he failed to appear despite substituted service. It may however, be note) here that substituted service had been effected on him under a wrong name. He was mistakenly named as Raja Muhammad Tajjamal instead of Raja Muhammad Azhar. However, when he learnt of the proceedings against him he made an application for setting the ex paste order aside but as he did not pursue the petition, it was dismissed for non-prosecution. The learned Rent Controller then proceeded to decide the question of tenancy. In spite of the denial of tenancy by the alleged tenants he came to the conclusion on the basis of the earlier admission of Raja Muhammad Akbar Khan that all the heirs of Raja Muhammad Akram Khan deceased were the tenants of Mst Zareena Akram. As the rate of rent h ad not also been disputed by Raja Muhammad Akbar Khan, the learned Rent Controller directed all the respondents before him on the 6th November, 1971, to deposit the arrears of rent and also the future rent. The appellants challened the said order before the Appellate Authority and so did respon dent No. 3 by a separate appeal. The learned appellate authority dismissed the two appeals on 16-1-1974 by single judgment and upheld the findings and order of the learned Rent Controller. Hence this second appeal by Raja Muhammad Afzal Khan, Mrs. Raja Muhammad Akram Khan and Raja Muhammad Aahar Khan. It is, however, necessary to note here that Raja Muhammad Akbar Khan, respondent No. 3, has not preferred a second appeal to this Court.

The main grievance of the learned counsel for the appellants is that the appellants have been hold to be tenants and jointly liable to deposit the rent on the basis of an admission made not by any of them but Raja Muhammad Akbar Khan, respondent 3. He contends that they are not bound by the admission of Raja Muhammad Akbar Khan. Without framing an issue on the question of tenancy and without letting the parties adduce evidence, he asserts, the learned Rent Controller could not lawfully direct the appellants to deposit rent.

3. It is true that unless the learned Rent Controller decides that the, relationship of landlord and tenant exists between the parties he cannot assume the jurisdiction and therefore, cannot direct the alleged tenants to deposit rent. But in order to decide that question he does not necessarily have to frame an issue and try it as formally as a civil Court is expected to do. It has been held in Khadim Mohy ud-Din and another v. Rehmat Ali Nagra and another P L D 1965 S C 459, that in the enquiry before the Rent Controller the parties have no right to insist on production of such evidence as they desire to adduce in support of their case and that these enquiries are such as are conducted by any Executive Officer. It has further been observed therein that though some of the functions of the Controller are judicial in character. he is not required to act judicially in discharging many of the functions. It is difficult to hold that the Controller while performing his functions under the Ordinance acts as a Court. At the most it may be said that he acts in a quasi-judicial capacity. In view of this observation I am satisfied that the learned Rent Controller Was justified in deciding issue of tenancy between the parties before him on the basis of whatever material was available to him on the record. It is, however, a different question as to whether that material was enough to support the finding arrived at by him. The material in ques tion was the earlier written statement filed by Raja Muhammad Akbar Khan respondent No. 3. Thus we come to the first question raised by the learned counsel for the appellants, namely, whether the said written statement could bind the appellants. This point was examined in some detail in Aminar Rshman v. Shaukat Ali P L D 1956 Dacca 356 and the ruling given therein reads as follows;-

"The answer to the question as to whether an admission by one defen dant in a suit is binding on his other co-defendants will, in my opi nion, depend upon whether the said defendant was jointly interested with his co-defendants in the subject-matter of the suit, whether the admission related to the subject-matter in dispute and whether it was made by the declarant in his character of a person jointly interested with the other parties against whom the evidence is sought to be tendered. It is in this view that it has repeatedly been held that the admission by one of several joint tenants is binding also on the other joint tenants. Ambir Ali and others v. Lutfe Ali and others 21 C W N 996 and Bhutnath Bandopadhya and others v. Jagattarini Dad 71 C L J 200."

In the present case in view of the identical nature of the defence set up by the appellants Nos. 1 and 2, and respondent No. 3 before the Rent Controller, it is clear that they are and have always been jointly interested in the subject-matter of this case. Therefore, in respectful agreement with the q ,authorities cited above, I am of the view that the admission of respondent No. 3 would bind the appellants as it would bind the said respondent himself."

4. However, the learned counsel for the appellant bas raised another question in respect of the earlier written statement filed by Raja Muhammad Akbar Khan, respondent No. 3. He contends that the said respondent never admitted Mst. Zareena Akram to be his landlady but only admitted her husband Sh. Muhammad Akram to be the landlord. But the said Muhammad Akram being admittedly dead and Mst. Zareena Akram, respon dent No. 1 being admittedly his widow, there could be no dispute with regard to her title to receive rent in respect of the premises in question. It is not the case either of respondent No. 3 or of the appellants that there being other heirs of Sh. Muhammad Akram deceased the widow is not entitled exclusively to receive the rent. In view of the definition of landlord given in section 2 of the Urban Rent Restriction Ordinance, I. am of the opinion that in the circumstances of the case the learned Rent Controller was right in holding Mst. Zareena Akram respondent No. 1. to be the landlady on the C basis of the admission of the respondent No. 3 to the effect that her husband was the landlord. It is also significant that having failed before the appellate authority, respondent No. 3 bad not challenged that finding before this Court. This again amounts to an indirect admission of tenancy. As the interest of respondent No. 3 and the appellants is common, all of them have been rightly held by the learned Rent Controller as well as by the learned appellate authority to be the tenants of respondent No. 1.

5. The next question argued by the learned counsel for the appellants is that appellant No. 3. Raja Muhammad Azhar Khan, having not been properly served. the order passed against him in his absence is not maintain able. But the fact that the said appellant had made an application for having the ex-parte proceedings set aside clearly shows that he had knowledge' of the proceedings. And the fact that he did not pursue the application' indicates that he was not interested in contesting the application. If he was interested, he could easily associate himself with the proceedings. The question of the tenancy was decided and the order of deposit was passed long after he had applied to the Rent Controller for having the ex parte proceedings set aside. It cannot, therefore, be said that the impugned orders were passed without notice to him.

6. In short for the reasons given above I am of the opinion that there is no substance in this appeal. I, therefore dismiss it. The appellants shall bear the costs of respondent No. 1 in this Court.

S. A. H. Appeal dismissed.

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