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Civil Petition No. 443 of 1982, decided on 21st June, 1982.
(From judgment dated 17-2-1982 of the Lahore High, Court in Writ Petition No. 2134 of 1981).
----S. 13-Ejectment-Default in payment of rent-Tenant denying existence of relationship of landlord and tenant, claiming himself to be owner of premises in dispute-Rent deed writer produced as witness but tenant suggesting such, deed to be forged-Tenant in his statement before Rent Controller conceding to be tenant and admitting execution of rent deed but asserting made no default made in payment of rent-Rent Controller finding preliminary issues as to jurisdiction and relationship-of landlady and tenant against tenant and holding him liable to be ejected forthwith in view of his contumacious denial of tenancy-Held Petitioner (tenant) having known throughout of his position as tenant under a rent deed duly executed by him, and yet denying relationship of landlady and tenant, petitioner's conduct contumacious-Contention that petitioner claimed ownership only of factory premises and not of premises in dispute-Not correct-Petitioner merely denying landlord's assertion of being in default of payment of rent and qualifying denial of assertion by stating that he had been paying rent-Written statement never sought to be amended-Petition, held, rightly rejected.-[Abdul Khaliq Qureshi v. Saeed Hassan Shah 1979 C L C 118 held not applicable).
Abdul Khaliq Qureshi v Saeed Hassan Shah 1979 C L C 118 held no applicable.
S. M. Zafar, Senior Advocate Supreme Court, and S. A. Manan, Advocate Supreme Court instructed by Tanvir Ahmad, Advocate-on-Record for Petitioner.
Ch. Muhammad Arif, Senior Advocate Supreme Court instructed by Ejaz Ahmad Khan, Advocate-on-Record for Respondents.
Date of hearing : 21st June, 1982.
-The petitioner (since dead and represented by his L. R's) is seeking leave to appeal from the judgment of the High Court dated 17-2-1982, whereby his writ petition challenging an order of ejectment passed by the Rent Controller and affirmed in appeal by the Additional District Judge, Gujranwala, was dismissed.
2. The ejectment proceedings had been instituted on 3-5-1979 by the respondent landlord asserting that she was the owner of the disputed premises and that the petitioner was a tenant by virtue of rent deed 10-2-1974 and alleging, inter alia, that he had defaulted in payment of rent from September 1978. The petitioner in his written statement filed on 8-10-1979 had challenged the jurisdiction of the Controller on the ground that the property was a factory. On merits, he had set up his own claim to ownership of the disputed. property and had denied the assertion of the landlord that he was a tenant. On the question of default his plea was of bare denial. A preliminary issue was first framed on the question of jurisdiction and after evidence had been recorded except that of the petitioner, another preliminary issue, relating to the existence of relationship, was framed on 12-11-1980 at the instance of the landlord. The evidence of the petitioner was recorded on 14-2-1981 in which he conceded the tenancy and the execution of the rent deed and asserted that he had been paying rent. The learned Controller found both the issues against the petitioner and observing that as he had contumaciously denied the relationship of landlord and tenant, he was liable to be ejected forthwith, directed his ejectment accordingly.
3. The contention before the High Court was that the principle that no one can be allowed to approbate and reprobate simultaneously would apply to only such cases where the denial of relationship was accompanied by an admission of default by the tenant, which was not so in the present case and that the Controller was bound to have proceeded to enquire into the allegation of default etc. before directing the ejectment. The learned Single Judge after examining the case-law on the point repelled the contention and finding that the petitioner's plea in regard to the existence of the tenancy was false, frivolous and vexatious, held that there were no equities in his favour for which the order of eviction could be withheld.
4. Mr. S. M. Zafar, appearing for the petitioner, urged before us that this was not a fit case for directing the ejectment of the petitioner straightaway upon the finding on the preliminary issue because in the first instance, no plea of denial of relationship had been taken by him in the preliminary objections in his written statement; the issue itself had not been struck at his instance and thirdly his admission as to the existence of the relationship though belated was sufficient to dislodge any charge of contumacy against him. Even otherwise, according to learned counsel, this was not a case of admitted default and for this reason, too, an inquiry in regard to default and other grounds was necessary before directing the ejectment of the peti tioner. In regard to the claim of ownership set up in the written statement, he explained that the same was, in fact, in respect of the factory and not of the disputed premises and that, too, was in relation to the plea of lack of jurisdiction of the Controller.
5. We have considered the submissions made but after carefully ex amining the pleas of the parties we are not satisfied that the petitioner was free from contumacy. He had all the time known that be was a tenant under a rent deed duly executed by him, yet he had denied the same by saying.
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It will also not be correct to say that in his written statement he had claimed ownership only of the factory because firstly he had set up that claim in response to para. 1 of the rent application, and, secondly, because his claim was not in respect of the factory but of the disputed property itself. His reply was :
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It is to be noted that he had prefixed his reply by a denial of the land lord's assertion of ownership. Further, when the landlord, in order to prove the relationship produced the deed writer A. W. 1, suggestions were put to him that he was giving false evidence in conspiracy with the landlord an that the rent deed was a forgery. As regards default, he had in the written statement simply denied the landlord's assertion without qualifying the denial by an assertion that he had been paying rent. His entire reply was;
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This, read in the context of his other pleas in the written statement, was compatible only with his denial of the relationship. Moreover, in response to para. 8 of the ejectment petition where the landlord had again asserted failure on the put of the petitioner to pay the agreed rent, his reply had been:
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It is to be noted that he had not sought amendment of his written state ment nor had be objected to the framing of the issue of relationship. In fact the petitioner's case until the recording of his evidence had never been that he had been paying rent. It is to be noted that the ejectment application had been filed on 3-5-1979 and that the petitioner's statement had been recorded on 14-2-1981. He had thus kept the landlord on the tenterhooks for nearly two years. He had also made no attempt in his statement to explain his earlier stand.
6. Learned counsel relied on Abdul Khaliq Qureshi v. Saeed Hassan Shah (1979 C L C 118), wherein it had been held: -
"There may be cases where on the one hand the relationship of landlord and tenant is denied and on the other there is unimpeachable docum entary evidence of payment or tender of rent as distinguished from mere oral evidence. In such cases, the principle of approbate and reprobate may not apply since on a better statement of the respondent the Rent Controller may be able to determine the matter of relationship of landlord and tenant and proceed to pass an order under section 13(6) and frame an issue of default."
It is to be noted that earlier in this cited case it had been observed :
"It is clear that opinion is almost uniform at least on the point that where the relationship of landlord and tenant is disputed contum aciously and a frivolous objection is taken to the landlord's title it is not necessary to take any further proceedings once the default is admitted."
Moreover, as the petitioner had not specifically stated that he had been paying rent, a reliance on this cited case is not apt.
7. Considering the peculiar facts of the case, we are not inclined to interfere with the view taken by the High Court. The petition is, therefore, dismissed.
Petition dismissed.
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