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Second Appeal No. 74 of 1979, decided on 24th March, 1983.

‑‑‑S. 13(6)‑Eviction proceedings‑Striking off of defence‑ Rent Con troller, on basis of admission made by tenant in his objections, pass ing order for deposit of rent but tenant on assertion of non‑existence of relationship of landlord and tenant refusing to deposit rent‑Rent Controller thereby striking off defence and ordering eviction‑Facts showing that landlord insisting on tenant to pay rent and on his refusal threatening him for eviction‑No specific issue framed by Rent Controller about existence of relationship of landlord and tenant and no evidence allowed to be led by parties and determine effect of allegations made by tenant in his written statement or in objections filed‑Order of striking off defence of tenant, held, not sustainable.

Kalfmuddin v. Amin Hafiz and others 1976 S C M R 77; Habibullah v. Bawa Vasdevgir Chelo Shambhugir P L D 1968 Kar. 869 and Risaldar Azimuddin v. Dilshad Hussain P L D 1973 Kar. 284 ref.

Akhtar Mahmaod for Appellant,

Respondents (absent).

Date of hearing : 24th March, 1983.

The appellant's defence has been struck off by the Rent Controller on 12th May, 1977 on account of non‑compliance of a direction given by the Rent Controller under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. This order has been confirmed in appeal by the District Judge, Hyderabad, vide order dated 11th January, 1979, The admitted facts of the case are as under : .

Premises bearing No. E/1099, situated at Loung Bhagat, Ghitti Hafiz Lane, Hyderabad, was let out to the appellant by one Abdullah, the pre decessor-in‑interest of the present respondents about 10/11 years back and it is not disputed that the appellant was put in possession of the premises by said Abdullah. The appellant continued to pay rent to said Abdullab for about 10/11 years but thereafter he stopped payment of rent on the ground that some other persons namely, the heirs of Hafiz Salamatullah, who claims to be the real owner of the property are demanding rent from the appellant and threatening to evict him from the premises. The' appellant served a notice on the respondents intimating them that the premises is claimed by the heirs of late Hafiz Salamatullah, on 28th May, 1973. This letter was receiv ed by the respondents but no reply was sent to it. However, it appears that in the meantime the heirs of late Hafiz Salamtaullah, who claimed to be the real owner of the property instituted ejectment case No. 25/74 against the appellant, which ended in a compromise dated 25th February, 1974 and under this compromise the present appellant accepted the heirs of late Hafiz Salamatullah as the owners of the property and agreed to pay them rent in respect thereof at the rate of Rs.25 per month. The respondents on 13th February, 1975 served a notice on the appellant under section 13‑A of‑ the West Pakistan Urban Rent Restriction Ordinance, 1959 claiming to be the heirs of late Abdullah son of Amir Bukhsh and called upon the appellant to pay the rent of the premises in his occupation which was let out to him by said Abdullah, some 12 years back. In reply to this notice of respondents the appellant through his Advocate sent a letter dated 1st April, 1975 in which it was alleged that at the time the premises was let out to the appellant by the said Abdullah it was represented that he was the owner of the premises and that this representation made by the said deceased Abdullah, turned out to be untrue as thereafter the real owner of the property namely the heirs of late Hafiz Salamatullah started claiming rent of the premises from the appellant. As no rent was paid by the appellant in res ponse to the notice served by the respondents the respondent instituted rent case No. 59/75 before the Rent Controller, Hyderabad, for eviction of the appellant on the ground of non‑payment of rent. The fact that the premises was let out to the appellant by the deceased Abdullah and that he paid rent for about 12 years were specifically pleaded in rent application filed by the respondents against the appellant. In his objection the appellant though admitted that he was inducted into the premises by the deceased Abdullah and that he also paid rent to the said Abdullah for a considerable long time but he denied the relationship of landlord and tenant between the parties on the ground that subsequent to his induction into the premises the real landlords of the premises namely the heirs of late Hafiz Salamatullah had started asserting their title in respect of the property and not only called upon the appellant to pay the rent but threatened with his eviction from the pre mises by filing an application for his ejectment before the Rent Controller. On this premises it was contended before the Rent Controller that there was no relationship of landlord and tenant existed between the appellant and the respondents and, therefore, the question of payment of any rent by them to the respondent did not arise. It was simultaneously asserted before the Rent Controller that after the compromise in the rent case instituted against the appellant by the heirs of deceased Hafiz Salamatullah, the appellant is continuously paying rent of the premises to them. However, the Rentl Controller proceeded to pass an order for deposit of rent in the case on the basis of the admission made in the objection filed by the appel lant that he was let out the premises by the deceased Abdullah. The order passed for deposit of rent was, however, not complied with by the appellant and accordingly the respondent filed an application for striking off his defence in the rent case. In his objection filed to the application under section 13(6) of the Ordinance the appellant besides once again repeating his earlier objection that there was no relationship of landlord and tenant between the parties further stated that the property in the meantime has been sold away by the heirs of deceased Hafiz Salamatullah, through a registered sale‑deed dated 22nd November, 1976 in favour of another person Noor Muhammad son of Hussain Bukhsh, pursuant to a decree passed in Civil Suit No. 30/76 and, therefore, the title of the respondent as well as that of the heirs of deceased Hafiz Salamatullah, came to an end by virtue of the said sale‑deed. The Rent Controller after hearing the counsel for the parties, however, came to the conclusion that as there was admitted non‑compliance of the tentative order for deposit of rent, he passed an order striking off the defence of the appellant. In appeal, the first appellate Court relying on the decision in the case of Kalimuddin v. Amin Hafiz and others (1976 S C M R 77) came to the conclusion that the tenant having once admitted that he was inducted into the premises by the landlord could not challenge his title subsequently and accordingly it was held that the order striking off the defence of the appel lant was justified in the circumstances. The learned first appellate Court principally relied on section 116 of the Evidence Act in this regard.

Mr. Ahktar Mahmood, the learned counsel for the appellant contends that the order of the Rent Controller as well as that of the first appellate authority is vitiated in this case as' no specific issue with regard to the exis tence of relationship of landlord and tenant between the parties was framed and no opportunity was given to the parties to lead evidence on that issue. It is further contended by the learned counsel that in any case the Courts below did not consider the effect of extinguishments of the title of the land lord who let out the premises to the appellant subsequent to such induction of the appellant into the premises. In this regard the learned counsel specifically referred to the case of Habibullah v. Bawa Vasdevgir Chelu Shambhugir (P L D 1968 Kar. 869) and Risaldor Azimuddin v. Dilshad Hussain (P L D 1973 Kar. 284). . In both these cases relied upon by the learned counsel it is observed that if sub sequent to the induction of a person into the premises and creation of tenancy thereon the title of the person who so inducts the tenant is extinguished then the provisions of estoppel contained under section 116 of the Evidence Act no more remain applicable. In the case before me it is clear from the facts stated above that not only the alleged real landlord who had entered into an agreement of sale with the respondent's predecessor Abdullah for sale of the property in suit started asserting a title which was inconsistent with the title of the said Abdullah but also extended threat of eviction to the appellant by filing ejectment case against him. Not only this the appellant further asserted before the Rent Controller in his objection that the property was sold away by a registered sale‑deed by the heirs of late Salamatullah to an other person namely Noor Muhammad son of Hussain Bukhsh pursuant to a decree of civil Court. In these circumstances in my view it was necessary for‑the Rent Controller to have framed a specific issue with regard to the existence of relationship of landlord and tenant between the parties and should have allowed the parties to lead evidence and determine the effect of the allegations made by the appellant both in his written statement as well as in the objection filed against the application under section 13(6) of Wee Pakistan Urban Rent Restriction. Ordinance 1959. Since this was not don the order striking off the defence of the appellant cannot be sustained in law. I accordingly accept this appeal, set aside the order of the Rent Controller as well as that of the first appellate authority and remand the case back t the Rent Controller with the direction to frame specific issue with regard t the existence of relationship of landlord and tenant between the parties and after allowing them opportunity to lead evidence to decide the same in accordance with the law. As the respondents have not appeared and defend ed the case there will be no order as to costs.

M.Y.M. Appeal accepted.

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