ATAI CORPORATION, KARACHI Versus GOVERNMENT OF PAKISTAN, MINISTRY OF INDUSTRIES, KARACHI

1. This petition under Article 199 of the Constitution is against an order of the lower appellate Court, dated 23‑1‑1989 by which it had dismissed the appeal and affirmed an order of Rent Controller, dated 25‑1‑1988, directing ejectment of the petitioners from the premises in dispute, consequent upon an affirmative decision on the preliminary issue relating to tenancy‑relationship between the parties.

2. Dispute in the petition concerns an evacuee Plot No.2, Gulshan Street No.3, Barkatpura, Shalimar Town, Baghbanpura, Lahore. Muhammad Zafar (hereinafter referred to as respondent No.3) claimed its transfer from the Settlement Department and sought eviction of the petitioners from it on the grounds of default in payment of rent since 6‑12‑1969 at the rate of Rs.70 per month; causing of damage to the property in dispute by installing Kharad machines and using it for commercial purposes and his own requirement for self‑use. Petitioners submitted written‑statement and pleaded denial of relationship of landlord and tenant between them and respondent No3. It was averred that on 27‑4‑1974, the property in dispute was auction‑purchased by. respondents 4 and 5, namely Rehmat Ali and Abdul Aziz and a transfer order was issued to them by the Settlement Department on 18‑2‑1977. It was further averred that upon receipt of notice from them, petitioners attorned to them and paid the monthly rent to them up‑to‑date. For deciding of the dispute about relationship of landlord and tenant, Rent Controller, Lahore, Urban Area, settled a preliminary issue and upon taking evidence from the parties and its review, on 25‑1‑1988 found for respondent No.3 and directed ejectment of the petitioners from the property in dispute without further inquiry into the allegation of rent default etc. On appeal, this decision of the Rent Controller was maintained.

3. Two points arise for consideration. First point related to the transfer of the property in dispute for creating relationship of landlord and tenant between the parties and the second point, whether ejectment without an inquiry to the allegation of rent default was a justified act of the learned Courts below.

4. Property in dispute was transferred to respondent No3 on 18‑12‑1963. Upon receipt of intimation about its transfer on 3‑12‑1965, respondent No.3 paid its transfer price partly in cash and partly by adjustment through a Compensation‑book. Thereupon, respondent No.3 applied for issuance of P.T.D. P.T.D. could not be issued to him, because the settlement file got misplaced. On 11‑2‑1974, D.S.C. directed for reconstruction of the misplaced file. Instead of re‑constructing the file, property in dispute was put to auction by the Settlement Department on 27‑4‑1974. Upon gaining its knowledge, respondent No.3 challenged the auction of the property in dispute in favour of respondents 4 and 5 by filing of a Writ Petition No.344‑R of 1977 in the High Court. On December 1, 1985, late Muhammad Zafar Ullah, J., of this Court accepted the writ petition and found the auction of the property in dispute in favour of respondents 4 and 5 to be of no legal effect. By virtue of this declaration, transfer of the property in dispute in favour of respondent No.3 was revived. Petition for leave to ‑appeal C.P. No.163 of 1986 was dismissed by the Supreme Court on September 18, 1989. Their Lordships of the Supreme Court observed:‑‑

5. "The ‑controversy between the parties revolved round the question whether the plot transferred to respondent No.3 was the same which had been auctioned off in favour of the petitioners. Respondent No.3 has placed on record a photostat copy of the assessment of building site prepared by the Settlement Inspector on as far back as 2‑7‑1964 which leaves no room for doubt that the plot transferred to him bore Khasra Nos. 5757/5758. On the other hand, the petitioners did not place any document refuting the claim of respondent No.3."

6. Petitioners were in possession of the property in dispute since the year 1963. On 6‑12‑1969, they had executed an agreement of tenancy in favour of respondent No.3 and agreed to pay the rent to him at the rate of Rs.70 per month and gave Rs.2,000 as advance payment of rent. Tenancy‑agreement was marked Exh.P‑1 in the statement of respondent No.3 as P.W3. Execution of tenancy‑agreement and payment of rent under it for some time was not disputed. Upon auction of the property in favour of respondents 4 and 5 and receipt of intimation from them, petitioners attorned to and changed their direction towards them for payment of rent to them. Not only the petitioners were statutory‑ tenants of respondent No.3 under the deeming provisions Q contained in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, since repealed and were liable to pay rent to him, execution of tenancy‑agreement Exh. P‑1 further re‑inforced their liability. It was true that, meanwhile, the Settlement Department had auctioned the property in dispute in favour of respondents 4 and 5, but that act did not provide a sufficient justification for the petitioners to repudiate tenancy in favour of respondent No.3 and deny payment of monthly rent to him. Even after disappearance of self‑created mist and removal of the factum of auction from the field by the High Court and revival of transfer of the property in dispute in favour of respondent No.3, petitioners did not feel disposed to admit respondent No3 as their landlord and pay to him due amount of rent. Respondent No.3 earlier also had brought an ejectment petition against the petitioners wherein they had denied the relationship of landlord and tenant but the ejectment petition was dismissed by the Rent Controller for want of proof. An appeal filed against the decision of the Rent Controller was also dismissed on 11‑6‑1983. It may be noted that in the former ejectment petition, respondent No.3 had failed because he could not produce evidence in support of the preliminary issue settled to decide existence of relationship of landlord and tenant between the parties. Petitioners are real brothers. Mst. Shehnaz, real daughter of petitioner No. 1 was married to respondent No.4. In view of close relationship between the petitioners and one of the transferees of the property through auction it was not conceivable that the petitioners were not cognizant of the litigation going on between respondent No.3 with respondents 4 and 5. Rather, the whole matter, smacked of the petitioners' playing real lever behind the scene for claiming benefit of the transfer of property to them. There was neither plea nor evidence of the tender or payment of rent of the property in dispute to respondent No3. On record, there was no room for doubt that the property in dispute was transferred and thus belonged to respondent No.3. Undisputably, he was its true owner and the petitioners being its occupants were his rent‑paying tenants. Ownership of the property being beyond dispute and liability to pay rent for it unquestionable, Courts below rightly adjudged the petitioners as rent defaulters and acted correctly in directing their ejectment without further inquiry; because in law, there was no need for it. Pleading denial of tenancy coupled with absence of statement about tender/payment of rent for the period in dispute obviated the necessity for holding of a further inquiry into the allegation of rent‑default. Cases in Nisar Ahmad v. Nazar Muhammad PLD 1974 Lahore 489, Mst. Sughran and others v. Ehsanul Haq Bhalli, Additional District Judge, Jhang and another 1982 SCMR 1164 are m point. Having due regard to the existing record, it may not be appropriate to ask for an inquiry after it was found that relationship of landlord and tenant existed between the parties and tender/payment of rent for the period in dispute was not pleaded. Therefore, impugned decisions were neither infirm nor without jurisdiction and there was no occasion for causing interference with them. It is in this view, that writ petition is found to have little merits in it and is dismissed with costs.

7. AA./M‑275/L Petition dismissed.