SAMI ULLAH Versus HAMEED KAUSAR
This first appeal has been brought under Section 24 of the Cantonment Rent Restriction Ordinance, 1963 as amended by Ordinance 9 of 1985 from an order dated 17‑4‑1986 of the learned Additional Rent Controller, Lahore Cantt. whereby he ordered the ejectment of the appellant.
2. The predecessor‑in‑interest of the respondents filed an ejectment application under Section 17 of the Cantonment Rent Restriction Act, 1963 against the appellant for his eviction from house No.858/2‑3, Street No.71, Bazaz Mohallah Sadar Bazar Lahore Cantt on the grounds of non‑payment of rent, personal need, sub‑letting and damage to the property. The appellant in opposing the ejectment application denied the relationship of landlord and the tenant between them taking an objection of non‑joinder and mis-joinder of the parties. As to his defence the appellant submitted that Hameed Kausar respondent No.l entered into an agreement with Rahim Ullah, the father of the appellant for the sale of the property in dispute in consideration of Rs.20,000, out of which Rs.2,000 had been paid in advance by the father of the appellant and the balance amount was to be paid by instalments of Rs.150 each per month and as such an amount of Rs.14,300 was paid leaving a balance of Rs.5,700. A suit for specific performance of the said agreement was pending in the Civil Court at Lahore. The learned Additional Rent Controller on the pleadings of the parties framed a preliminary issue to read as whether the relationship of landlord and tenant existed between the parties.
3. After referring to the documentary evidence and the statement of one of the representatives of Mst. Maryam Bibi and the oral evidence adduced by the petitioner the learned Additional Rent Controller observed that the alleged agreement to sell was oral and that the son of the owner did not possess any power to enter into that. There was no written document in that respect and no receipt of any payment allegedly made by the appellant had been produced. The appellant in his reply to notice dated 10‑5‑1983 Ex.P/4 had not taken up any plea of any agreement to sell between the parties and in his written statement the plea of such an oral agreement was an after‑thought. In reply to the notice the appellant only claimed Rs.40,000 as renovation charges which was not subject of the defence, so that was not pressed through his statement in the Court as well as the evidence of his witnesses. The oral evidence of both sides and the reply to notice dated 10‑5‑1983 clearly indicated that the appellant was a tenant under the respondents in his own independent right. The learned Additional Rent Controller was of opinion that the stand of the appellant was self‑contradictory. On one hand he had said that he had filed a suit against the respondents to get back the property while on the other hand he denied the status of ownership to the respondents. A civil suit was not a legal hurdle in deciding an ejectment matter. He placed his reliance in this behalf of Allah Yar, etc. v. Additional District Judge, etc. 1984 SCMR 741. According to the learned Additional Rent Controller in view of the documentary evidence placed on the file by the respondents which was P.T.0 Ex.P/1, P.T.D. Ex.P/2, reply to notice by the appellant Ex.P/4, Ex. PW‑1/1 and envelope Ex.P/5 the issue of relationship of landlord and tenant stood established between the parties and as the default in the payment of rent was admitted by the appellant himself, therefore, straightaway an ejectment order could justifiably be passed as the appellants could not approbate and reprobate regarding his stand. The reliance was placed on Fazal Haq and others v. Muhammad Ramzan and others (1986 SCMR 556). However, the denial by the appellant was contumacious and without any basis.
4. The learned counsel for the appellant has contended that the conclusion drawn by the learned Additional Rent Controller regarding the plea of the appellant is not justified on the record. He has taken this Court through the entire evidence.5. Muhammad Yousaf R.W.1 produced by the appellant in his evidence stated that he knew the father of the appellant. The appellant had been residing in the house in dispute as an owner and was so. Since the very beginning the appellant and his brother were both putting up in the house in dispute. The appellant never paid any rent. However, the father of the appellant paid Rs.3,500 towards the price of the house out of his Claim Book. There was an agreement between the predecessor‑in‑interest of the respondents and the appellant that the appellant would go on paying Rs.150 every month. In his cross‑examination he said that the talk as to the agreement took place at a sweet‑meat shop of Subedar and he and the father of the appellant Rahim Ullah Khan had gone together to make the purchases. Hameed Ullah Khan R.W.2 stated that he knew only the father of the appellant and not the respondents. The appellant etc. were putting up in the house in dispute as owners. The younger brother of the appellant Habib Ullah was residing from the very begininng with the appellant. The appellant etc. never paid any rent. There was an agreement between the predecessor‑in‑interest of the respondents and the appellant under which an amount of Rs.150 per month was being paid as an instalment towards the price of the house. In his cross‑examination he stated that the agreement was entered upon between Rahim Ullah and the Professor (meaning thereby Professor Hamid Kausar). At that time Rahim Ullah was the owner who resided there. Rs.2,000 had been paid by Rahim Ullah and the remaining amount was deposited under the agreement. He paid Rs.150 per month as an instalment to the professor. The appellant as R.W.3 stated that he alongwith his brother Habib Ullah was in possession of the house as owner. The agreement to sell was entered with his father. He was also present at that time. The total price was fixed as Rs.20,000. Rs.2,000 were paid as earnest money. The rest of the price was being paid by way of instalments at the rate of Rs.150 per month each and as such they had already paid Rs.14,300. In his cross‑examination he said that the agreement was entered into on 25‑11‑1961, the talk as to that took place between his father and Hamid Kausar. The agreement to sell was in writing. His father had secured a receipt as to Rs.2,000 as earnest money. His father had become blind and Hamid Kausar had done away with the document. Hamid Kausar had also taken away the receipt as to Rs.2,000. He came to know all about that when an ejectment application was filed against him. He looked for the documents but could not amass those. As to the payment of Rs.150 per month the entries used to be made in a copy which was also done away with by Hamid Kausar. He had himself paid Rs.10,000.
6. The learned counsel for the respondents has supported the decision of the learned Additional Rent Controller as it is.
7. It is not open to the appellant to deny that the entire evidence as produced by him is contradictory, inasmuch as R . W. 1 and R . W .2 had categorically stated in their examination‑in‑chief that the agreement to sell was entered between the predecessor‑in‑interest of the respondents and the appellant while according to the appellant the agreement to sell was between Professor Hamid Kausar and his father. The evidence as adduced by the appellant otherwise is not entitled to any weight for the reason that, that was stated by the appellant that the agreement was in writing and the receipt as to the earnest) money was also in writing. In view of these facts if the agreement and the receipts were done away provided that could be proved), which was not sufficiently done the appellant was entitled only to' adduce the secondary evidence as to the contents of the documents by producing the marginal witnesses or any witness who happened to have gone through the contents of the said documents. The appellant's has also not produced any receipt as to the payment by him of', Rs.150 every month as an instalment towards the purchase price.! Professor Hameed Kausar as A. W.1 has denied in his statement the' plea of the agreement to sell, so the appellant fails in establishing the plea as to the agreement to sell and the payment there-under asli raised by him. It has been admitted by the appellant that he has lost his suit for specific performance of the agreement to sell and during the suit the respondents were not restrained from pursuing the ejectment application.
8. The order of the learned Additional Rent Controller is upheld) and this appeal is resultantly dismissed with costs. However, the appellant is being afforded two months' time to vacate the house.
A.A./S‑128/L Appeal dismissed.