SULTAN JAN Versus SHER MUHAMMAD

SHAFIUR RAHMAN, J .---Leave to appeal was granted to the occupants of land to determine whether the High Court had correctly held that it was a case of licence and not tenancy and for that reason the Civil Court had the jurisdiction in the matter to the exclusion of the Rent Controller.

2. The background of the case is that in the year 1985 the respondent filed a civil suit claiming possession of open cite about 10,000 sq.ft. on the ground that about eleven years earlier it was licensed to Sahib Jan, the predecessor-in-interest of the appellants for parking trucks. However, subsequently Sahib Jan started utilizing the premises commercially by leasing out the parking space and also by trying to establish subsidiary business of a coal Depot and also extended the area allowed to him under the licence. The respondent claimed to have protested, to have also proceeded against him under section 447, P.P.C and ultimately brought the suit against him. The suit was contested and the plea taken up was that the property was acquired on the monthly rent of Rs.160 that he wanted enhancement of the rent and that on not getting it, he declined to receive the rent and instituted the proceedings in the Civil Court. It was their case that the property was put to use in terms of the tenancy agreement of which there was no violation and that it was a matter which should have been taken to the Rent Controller instead of having been brought to the Civil Court.

3. The suit was tried by the Additional District Judge, Quetta. He framed as many as eight issues. The trial Court, on the question of jurisdiction, held as hereunder:--

"The evidence produced by the plaintiff could not be rebutted by the defendants whereas the evidence of defendants itself shows that the plot was an open land at the time when it was given to late Sahib Jan. Now it was for the defendants to prove that the plot was given for business purpose, but nothing has been produced by the defendants to prove that the land was let mainly or chiefly for the purpose of business or trade and it fell within the definition of rented land.

The defendants failed to prove their contentions therefore the objection raised by them is overruled, therefore the issue is decided in affirmative.

4. The High Court has affirmed this judgment. It referred to a judgment of this Court in Abdullah Bhai and others v. Ahmad Din (P L D 1964 S C 106), to come to the conclusion that it was a case of licence and not of tenancy and rented land, and upheld the judgment of the trial Court. Hence, this appeal.

5. The learned counsel for the appellants has taken us through the rent receipts the agreement by which the land was let out and the pre-litigation notice that was served by the respondent to demonstrate that the premises had been let out for business, that rent was payable and that a tenancy agreement existed whereunder the land had to be taken as a rented land for the purposes of Rent Restriction Ordinance. Besides, it is urged that the respondent was estopped because he had been seeing, according, to his own statement of the case, the diversion of the property for purposes other than those licensed and had not taken any action throughout. This would strengthen the case of the appellants that there was no diversion of the purpose and if there was, the respondent had by his conduct allowed it and there was no question of now turning back and making it a ground for avoiding the jurisdiction of the Rent Controller or for seeking the eviction of the appellants.

6. The document Exh.D/3 was submitted in evidence by the appellants themselves. The High Court excluded it from consideration on the assumption that it was not subscribed to by the parties. It appears to be so subscribed by the precessor of the appellants who will be bound by it. There is a portion in that document reciting as hereunder:---

7. Here, in the context and in the light of evidence what appears is that the word "Garaj has been used not as a place where the vehicle should be repaired or a workshop established but as a mere open parking place and that too confined to the trucks owned by Sahib Jan. This document itself, notwithstanding the charging of the rent etc. would make it a case of licence and not of rented land. Being not a case of rented land, it will not be within the jurisdiction of the Rent Controller.

8. As regards the estoppel, we find that the respondent has been vigilant in taking up appropriate proceedings whenever diversion of the use and extension over the plot was made. This appears from amongst others, the initiation of proceedings under section 447, P.P.C.

9. We find no merit in the appeal and the same is dismissed leaving the parties to bear their own costs.

AA./S-632/S Appeal dismissed.