QASIM RASOOL QADRI Versus RENT CONTROLLER

This writ petition arises out of the order, dated 11‑12‑1986, passed by Mr. Muhammad Mansoor Ali Khan, Additional District Judge, Lahore dismissing an appeal, filed by the two writ petitioners against the order, dated 19‑i1‑1985 passed by Malik Manzoor Hussain, Rent Controller, Lahore, to uphold the order of their ejectment.

2. The facts of the case are that two portions of house hearing No.41, situated in Street No.138, Ittehad Colony, Ichhra, Lahore belonging to one Vast. Asia Begum: were held by the two petitioners since the year 1975 on a respective rental of Rs.150 and' Rs.90 per month. Respondents Nos. 3 to 7 herein, who are five minor sons of one Muhammad Ashraf Khokhar, claiming to have entered into :n agreement on 31‑5‑1983 with Mst. Asia Begum for the sale to them of the relevant house, served notices on them dated 28‑8‑1983 claiming rent from the date of their alleged agreement and also possession of the house on account of personal need. The notices. were duly served on them but they declined to acknowledge them the landlord or accede to their demands and sent the reply accordingly to their counsel. Ultimately, they (hereinafter called 'the applicants'), instituted .an ejectment application on 10‑9‑1983 against the petitioners on those very grounds. The petition was contested on the basis of a joint‑reply filed by the two tenants bearing the date 5th December, 1983 wherein apart from a number of legal and factual pleas taken to oppose the prayer, it was, to put it briefly, asserted also that a ‑ingle‑petition against two tenants coming into possession at different rimes on the basis of two independent rent‑notes entered into with Mst. Asia Begum. was not competent and muchless so on the basis of an alleged agreement for purchase which had not still matured into a sale transferring the title to the applicants who were even invited, without success to show the necessary document of title and take the rent relating to April, 1983 and onwards because Mst. Asia Begum had herself been taking the rent till March, 1983 whereafter she has neither accepted the rent nor even acknowledged to have entered into any agreement for sale of the house and, in the circumstances, they (the tenants) had no alternate than depositing the rent with the Rent Controller, Lahore which they have been regularly doing. In view of the pleadings, the only issue set down to be tried by the Controller was as to whether there exists the relationship of landlord and tenant between the parties. In the course of evidence, the applicants, apart. from their ocular evidence, also produced the agreement to sell dated 31=5‑1983; the registered sale‑deed executed by Mst. Asia Begum in their favour on 9‑1‑1984; the rent‑deed executed by the petitioners in favour of Mst. Asia Begum in 1975 alongwith the notices dated 28‑8‑1983 served on them by the applicants and their reply thereto.

3. In considering the matter, the Controller seems to have gravely erred in confusing the position of a holder of an agreement to sell with that of actual purchaser of the property. This is apparent from his observations made to the effect that where a landlord. agrees to sell a house and a considerable amount is received by him as advance by also authorising the transferee to seek possession from the tenants, there the relationship of landlord and tenant also gets transferred.. Thereby, Controller came to the wrong conclusion that the relationship of landlord and tenant existed between the parties and he reached this conclusion on the premises that such a relationship legally comes into existence' between the purchaser and the tenant and even if there is some defect in the sale, the tenant cannot challenge the validity of the sale and cannot withhold the payment of rent to the purchaser especially when he is aware of the transfer of the rented premises. There would not be any cavil with the proposition propounded by him but the error wherein he has fallen is that in this particular case there was no 'transferee' in existence at all until 9‑1‑1984 when sale‑deed was executed and got registered by Mst. Asia Begum in favour of the applicants who could not be deemed to have any right of demand with regard to the period prior thereto; neither on account of the assumed default in payment of rent because of the absence of a statutory notice about the transfer as required by section 13‑A of the Ordinance, which‑ought to have been served after 1‑9‑1984 but none was .admittedly served by the applicants who could muchless be in a position before 1‑9‑1984 to put in any demand on the assumption of personal need. The Controller, however believed that the tenancies held by the petitioners were, hence, liable to be forfeited and proceeded to so order by requiring their immediate eviction by means of his judgment dated 19‑11‑1985.

4: An appeal there against filed by the petitioner, was heard by an Additional District Judge at Lahore who only bye passed the real controversy into dismissing the appeal by his judgment dated 11‑12‑1986 by wrongly upholding the view of the Controller and his order with regard to eviction.

5. The tenants have now challenged these orders through this Constitutional petition which deserves to succeed on the short ground that the only notices issued by the respondents‑applicants with regard to the supposed transfer made in their favour are dated 28‑8‑1983 (Annexures 'C/4' and 'C/5') but the transfer to them was actually made on 9‑1‑1984 by means of registered sale‑deed (Annexure 'C/1').

It' is not there case that they have issued any notice subsequent thereto as‑ per the requirement of section 13‑A of the Ordinance which itself provides that in the absence of such a notice, there is no question of: the petitioners being the defaulters in the payment of rent to the Applicants to become liable to be ejected on that ground. The Plea of the alleged personal need of the applicants has not been utilized by either the Controller or the appellate Authority in support of the order of ejectment of the petitioners and nothing need be said 'thereabout because the applicants have not come up there against with any grievance .

6. In the above view of the matter, the orders, dated 19‑11‑1985 and 11-12-1986 passed respectively by the Controller Lahore and the Additional District Judge/Appellate Authority are found to be 'not sustainable in law and are accordingly held to the void and of no effect. The writ petition is accordingly accepted and the parties are, however, left to bear their own costs.

H. B. T. Petition accepted.