MUHAMMAD RAFIQ AND OTHERS vs KHALID RAUF AND OTHERS

ORDER

' The writ petition calls in question an order, dated 29th June, 1983 of Malik Khizar Hayat, Additional District Judge, Gujrat, whereby he accepted an appeal of the respondent/landlord in a rent matter and ordered eviction of the petitioners/tenants from the disputed premises.

2. The respondent/landlord sought ejectment of the petitioners/ tenants alleging that their father Ghulam Nabi had taken the shop from him on a rental of Rs, 75 p. m. On 1st October, 1970 that on his demise only respondent No, 1 was occupying it though others were joined as proper parties ; that he needed for it for personal use in good faith and that they had damaged it to the extent that it required reconstruction and for that he had already obtained a sanctioned plan.

3. It was resisted contending that even earlier a similar petition filed on 20th January, 1975 on the same grounds was dismissed and that the present one could not proceed on. It was pleaded that mere change of the number of the shop bad no effect and that since the shop was the same, be was estopped from claiming the same relief. He denied the alleged relationship of landlord and tenant as also the grounds for which the respondent was seeking his ejectment.

4. The learned Rent Controller framed the following two issues :"(1) Whether the application is not maintainable ? O.P.P.

(2) Whether the relationship of landlord and tenant exists between the parties ? O.P.A."

' He gave findings against the respondent-landlord and as a result dismissed his petition. In appeal, however, the learned Additional District Judge, reversed those findings and held that relationship of landlord and tenant was established between them and that since it was denied quite wantonly by the petitioners-tenants, there was no idea of trying the remaining questions involved in the petition. In other words, what he meant to convey was that the petitioners by having wilfully denied their status as tenants had forfeited all rights to agitate against the grounds of ejectment, namely, reconstruction or personal need etc. Taken up by the landlord-respondent No, 1.

5. Learned counsel for the writ-petitioners took pains to urge that in face of the dismissal of the previous petition, the present one did not lie ; that the ownership of the landlord-respondent was not established ; that the rent note allegedly executed by Ghulam Nabi deceased being for more than a year did not create any rights as it was unregistered ; that certain documents being part of another file could not have been referred to in this case ; that the findings of the learned Additional District Judge, being that the tenancy stood terminated, he had no authority to direct ejectment as it was a necessary concomitant of that type of relationship and lastly that there being some discrepancy in regard to the serial number of the shop, the respondent's title to it was not established.

6. I have hesitation to accept all this. The previous petition was admittedly dismissed in default when the respondent-landlord had gone to Iran for treatment having got his limbs broken in an accident. Even now he was suffering from a sort of gangrence. No provision of law was shown that in case of dismissal of a petition for such a reason, he was precluded to bring a fresh one. The grounds of personal need and reconstruction are ever recurring especially when very recently he obtained the necessary sanction from the Municipal Committee.

7. The objection as to the title of the respondent was equally futile. The rent note executed by the father of the petitioners was established by the P. Ws. In rebuttal, only one of them appeared as his own witness. In fact, the only objection against it was that it was not registered. It was not shown if in the previous ejectment petition, the deceased Ghulam Nabi had also denied its execution, for, he remained in occupation of the shop ever since 1970 when he had executed it. The petition-writer clearly' proved its execution as by the deceased Ghulam Nabi himself. Mere denial on the part of the petitioners themselves was not enough. Absence of its registration was no bar in using it for collateral purpose to denote particularly the nature of the petitioner's possession Muhammad Khan and another v. Muhammad Zaman Khan and another (1) and Abdul Karim v. Mirza Bashir Ahmad (2), support this view.

8. A converse question arose if Ghulam Nabi deceased did not occupy this shop by virtue of this rent deed, how on earth he happened to enter upon it. The only explanation given by the petitioners themselves was that they paid rent to a Pathan whose name they did not know and that they never attorned to the respondent-landlord. Occupying a shop for such a long time and yet knowing not the landlord or his name, was in fact ridiculing oneself. Muhammad Afzal v. Abdur Rauf and others (3) was cited for the view that where the tenant had no iota of evidence to show as to what interest he had in the shop, he will be deemed to have no case. Here the petitioners simply seem to have made a mockery of themselves. The difference in regard to the numerical figure of the shop as appearing in the relevant record of the Municipal Committee or Taxation Department, did not mean much because physical identity of the shop remained the same. A slight misdescription in this behalf cannot be of any consequence.

9. Last of all, counsel vehemently submitted that since the lower Court did not frame issues in regard to the grounds alleged for eviction nor did he gave any findings thereabout, it was not permissible to the learned Additional District Judge, to pass a sweeping order of ejectment without first getting them determined. The contention was repelled by placing upon Mst. Sughran and others v. Ehsanul Haq and another (4) where it was ruled that if tenancy is held proved vis-a-vis the tenant's denial, forfeiture of his defence even on other points was rather the natural result.

There could be no escape from applying this authority to the instant case as the petitioners knowing not even their landlord for years together were just cutting their own size.

10. The petition, therefore, is devoid of any merit and is accordingly dismissed in limine of course with costs as the respondent contested it.