Q. QURESHI Versus SARDAR RANFHEY KHAN FAROOQ

The facts giving raise to this second appeal are that the appellant, Q. Qureshi, made an application against the respondent, Sardar Ranjhey Khan Farooq, for his ejectment from a house on the grounds of default arid personal need. The respondent resisted the application inter alia on the ground that the relationship of landlord and tenant did not exist bet ween the parties. The Rent Controller, before whom the application was pending, however, without framing an issue in this behalf and without recording the parties' evidence thereon reached the conclusion, vide his order dated the 13:h I3ecember 1977, that the respondent was occupying the house in dispute as a tenant under the appellant. He, therefore, directed him to deposit arrears of rent its also the future monthly rent. The respondent complied with the order of the learned Rent Controller to some extent but committed default in regard to the deposit of certain rent in terms of his order. The Rent Controller, therefore, struck off' his defence and ordered his ejectment.

2. Feeling aggrieved by the order of the learned Rent Controller, the respondent went in appeal before an Additional District Judge. The view taken by the learned appellate authority was that as the learned Rent Controller had not framed an issue regarding the existence of relationship of landlord and tenant between the parties and had also not recorded any evidence in this behalf, his order regarding deposit of rent was not sustain able. It was also held by him that since the learned Rent Controller bad not made an appropriate order in regard to the controversy in respect of the said relationship, "no question of striking out the defence can arise". He, accordingly accepted the appeal, set aside the ejectment order and remanded the case to the learned Rent Controller with "the direction that he shall frame an issue in regard to the existence or non-existence of rela tionship of landlord and tenant between the parties and decide the, ques tion of jurisdiction in the first instance before passing fresh order directing the appellant to deposit the arrears of rent or and to make payment of monthly rent".

3. Being dissatisfied with the order of the learned Additional District Judge; the appellant has come up in second appeal to this Court.

4. Learned counsel for the appellant contended that there was sufficient material on the record to show that the relationship of landlord and tenant existed between the parties and that the objection raised by the respondent in this behalf was frivolous and without substance. He, there fore, maintained that the learned rent Controller was justified in not framing an issue acid recording evidence ire respect of the said relationship, In this connection, be invited my attention to the reply of the respondent to the ejectment application, copy of the lease-deed placed urn record by the appellant, copy of notice served by tae respondent on the appellant's son and copies cot receipts relating to the payment of rent.

5. On the contrary, the learned counsel for the responder t urged that the lease deed was not admissible in evidence as it was not duly stamped and registered. As regards the reply submitted by the respondent to the ejectment application and the notice served by the respondent he submitted that there was no clear admission by the respondent that he was occupying the disputed house as a tenant under the appellant. While commenting on the copes of the receipts relating to the payment of rent it was pleaded by hide that they had not been duly proved before the order relating to the deposit of rent was passed by the learned rent Controller.

6. While making order relating to the deposit of rent, the learned Civil Judge repelled the respondent s objection relating to the non-existence of relationship of landlord and tenant between the parties for the reasons that in view of the notice served by the respondent on 23rd May, 1975 the reply submitted by him to the ejectment application the copy of the lease agreement it was clear, beyond any doubt, that prima facie, the aforesaid relationship was there between the parties. In regard to the lease deed the learned Rent Controller observed that its evidentiary value would be considered at the stagy of evidence and arguments. It seems that the said observations were made by him in view of an objection raised by the respondent, in his reply to the ejectment application, that the lease deed was not duly stamped and registered and as such it could not be received in evidence. With reference to the respondent's reply to the ejectment application, the learned Rent Controller pointed out that it was asserted by him in that reply that all the rent had been paid which clearly showed that there was relationship of landlord and tenant between the parties. .

7. As stated above, one of the reasons for which the learned Additional District Judge had taken exception to the above order of the learned Rent Controller was that he had failed to frame an issue and record evidence in regard to dispute relating to the relationship of landlord and tenant between the parties. It is true that when such a dispute is raised in a case the Rent Controller cannot assume jurisdiction therein unless the dispute is resolved by him in favour of the person who has filed the case, but it is not always necessary to frame an issue in the formal context and also record evidence thereon. If there is sufficient material on the record to satisfy the Rent Controller that the relationship of landlord and tenant does exist between the parties he can record a finding in this behalf and proceed further with the case without framing an issue and recording evidence in .respect of the existence of the tenancy. However, if the material on the record does not enable the Rent Controller to conclude the controversy, be should frame an issue and invite the parties evidence thereon, and then decide whether the relationship of landlord and tenant exists between the parties. Therefore, the mere fact that the learned Rent Controller had not framed an issue regarding the said relationship and had also not called upon the parties to produce evidence thereon did not, by itself constitute a valid ground for finding fault with his order to the effect that there was relationship of landlord and tenant between the parties. Muhammad Sharif v. Sh. Muhammad Amin (P L D 1977 Lah. 516) and Raja Muhammad Afzal Khan etc. v. Zarrena Akram etc. (P L D 1977 Lah. 662) are the authorities in point.

8. The real question to be considered in this case, therefore, is whether there was adequate material on the record to convince the learned Rent Controller that there was no merit in the objection raised by the respondent that he was not occupying the disputed property as a tenant under the appellant. It is not disputed that the house in question is owned by Akbar Qureshi, who, according to the appellant, is his minor son. The lease deed referred to above was executed by the appellant as natural guardian of Akbar Qureshi in favour of the respondent. The tenancy was created for a period of 11 months commencing from 22 nd November, 1973 and ending on 22nd October, 1974 and it was agreed that in the event of the lessee (respondent) holding over after the expiry of the lease or agreed extension, he shall continue paying the agreed rent as demanded by the lesser (appellant) till he vacated the premises. The ejectment application was filed in the year 1977. It would, therefore, follow that the respondent was holding over the disputed property on the basis of the aforesaid clause in the lease agreement. According to that clause the rent was to be paid by the respondent to the appellant and, therefore, the latter was a landlord within the meaning of clause (d) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance. The respondent did not deny the execution of this lease deed and simply objected to its admissibility on the ground that it was not duly stamped and registered.

9. Now, I advert to the respondent's reply to the ejectment applica tion. In this reply, the respondent had denied the relationship of landlord and tenant between the parties but had repeatedly averred that he was not a defaulter. In paragraph 8(a) he said :-

"All the rent has been paid."

It was not asserted by the respondent that he was himself owner of the disputed property nor it was alleged by him that any person other than the appellant was his landlord. He also did not name the person other than the appellant to whom, according to him, all the rent had been paid.

10. This brings me to notice, dated the 23rd May, 1975 served by the respondent on Akbar Qureshi son of the appellant (Q. Qureshi). Although in his reply to the ejectment application, while referring to the lease deed, it was contended by the respondent that "legally a minor cannot enter into a legal and valid contract, therefore, even on that score minor Master Akbar Qureshi has nothing to do with the property in question "yet in the said notice it was conceded by him that he was a tenant of Akbar Quresbi. As for the payment of rent, the relevant position of the notice reads thus :-

"(2) That my said client has paid as desired by you a sum Rs 7,336 (Rupees seven thousand three hundred and thirty-six only) re presenting the rent for the months of December, 1974 to 22nd March, 1975 to Mr. M. A. Ghaffar Khan, Lahore in pursuance of letter dated 14th May, 1975 issued by Mr. Q. Qureshi for which Mr. M. A. Ghaffar khan issued a duly stamped receipt.

(3) My said client has always been ready, willing and capable to pay the remaining amount of rent of Rs. 14,672 (Rupees fourteen thousand six hundred and seventy-two only) representing rent for the said Bungalow at the said rate for the period from 23rd of March, 1975 to 21st of November, 1975. However, no one approached my said client to receive the same despite his keen desire to pay."

These contents of the notice indicate that the respondent had paid rent to Mr. M. A. Ghaffar Khan as directed by the appellant, Q. Qureshi. This clearly implies an admission on the part of the respondent that the appellant had-the authority to direct the respondent to pay rent to him or any other person nominated by him.

11. As for the receipts retarding the payment of rent by the respon dent, which were placed on the record by the appellant, they were issued by Mr. M. A. Ghaffar Khan. As pointed out a little earlier, it was admitted by the respondent in his aforesaid notice that, under the instruc tions of the appellant, he had paid rent to Mr. M. A. Ghaffar ,Khan.

12. It would, therefore, be observed that there was lot of material on the record touching the controversy raised by the respondent in connec tion with the relationship of landlord and tenant between the parties. Even if the lease deed is not taken into consideration for the purpose of deciding that controversy, in the notice served by the respondent- on Akbar Qureshi son of the appellant, the respondent had clearly acknowledged the appellant as the person who was authorised to give directions relating to the payment of rent by the respondent inasmuch as the respondent had, admittedly, paid rent to Abdul Ghaffar in compliance with his (appellant's) direction. It can hardly be disputed that if the respondent had the authority to give direction regarding the payment of rent to another person he was also entitled to receive the rent himself by telling the respon dent that the same shall be paid to him. According to the definition of the landlord as given in clause (d) of section 2 of the Ordinance "any person for the time being entitled to receive rent in respect of any building rented land, whether on his own account or on behalf or for the benefit of the other person, or as a trustee, guardian, receiver or administrator for any other person" is a landlord. Thus, in view of the above admission of the respondent, as recorded in his notice, the appellant can be treated as his landlord for the purpose of proceedings under the Ordinance.

13. The upshot of the foregoing discussion is that the plea of denial of tenancy raised by the respondent was frivolous and vexatious and there was sufficient material on the record on the basis of which the learned Rent Controller had rightly brushed aside his plea without framing an issue in the matter and recording evidence thereon. The order of the learned Rent Controller regarding the deposit of rent is, therefore, unexceptionable. Since that order was, admittedly, not complied with by the respondent, to some extent, the Rent Controller was justified in striking off the defence of the respondent and ordering his ejectment.

14. In this view of the matter, the order passed by the learned Addi tional District Judge by which he had set aside the ejectment order made by the learned Rent Controller cannot be upheld. As a result, I accept the appeal with costs, set aside the order of the learned Additional District Judge and restore that of the learned Rent Controller. The respondent is, however, allowed a period of four months to vacate the premises in dispute.

S. Q. Appeal accepted.