1998CLC717 (PLP)

The contention of Mr. Waqar Hussain, the learned counsel for the appellant, is that the appellant is occupying as tenant two adjoining shops, one of these is situated on Plot No.E‑10, Block‑4, Shah Faisal Colony while the other on Plot No. E‑11, Block‑4, Shah Faisal Colony, Karachi. His contention is that both these shops are adjoining and the wall between the shops was removed by the appellant so as to use these as one shop. However, the fact remains that these are two shops situated on two different plots. He submits that out of these two plots the one bearing No.E‑10 is owned by the respondent while the other with No.E‑11 is owned by his son. He submits that it is apparent from the application filed by the respondent that he claimed the shop situated on Plot No.E‑10 only and therefore, the eviction of the appellant directed by the Court was only in respect of this shop, but, taking advantage of the fact that both these shops were connected the respondent wants to evict the appellant from the shop situated on Plot No.E‑11 too on the basis of the aforesaid order. Mr. Rehanul Hassan Farooqui, learned counsel for the respondent, opposes the appeal on the ground that the objection taken by the appellant in the Execution Application was never taken before during the entire proceeding before the Rent Controller or even thereafter, and therefore, this objection at such a belated stage cannot be allowed to be taken. The moreso as it pertains to a question of fact. In support of his contention the learned counsel places reliance on the cases of ‑‑‑ (i) Muhammad Anwar v. Jamaluddin (1996 SCMR 771). (ii) Ch. Ghulam Mujtaba v. Mst. Naeema Khanum (1985 SCMR 38), (iii) Mst. Khurshid Begum and others v. Mr. Ghulam Kubra and others (1982 SCMR 90). In the first case it appears that the tenant had taken an objection at the stage of appeal that the premises involved was a hotel and therefore, did not fall within the jurisdiction of the Rent Controller. The Hon'ble Supreme Court on such objection observed that: "We are inclined to hold that the question, as to whether the premises were let out as a hotel in terms of clause (h) of section 2 of the Ordinance, was a question of fact, which should have been pleaded in the written statement by the respondent if he wanted to oust the jurisdiction of the Rent Controller. The above plea could not have been raised by the respondent first time before the High Court. No doubt a purely legal plea can be raised even before the appellate forum first time with its permission. However, a legal plea, which is founded on factual plane, cannot be raised first time before the appellate forum." In the second case it appears that the petitioner in the Supreme Court was appearing as the Advocate for the tenant in earlier proceedings but never applied to the Courts for being impleaded as one of the tenants of the premises and was content with contesting the proceedings as counsel of the tenant until the stage of execution proceedings when for the first time he came with his own claim of possession. In this situation the Supreme Court observed that: "Thus, it will be seen that there were four rounds of litigation arising out of the proceedings for ejectment of A.K. Mumtaz and finally on 7‑11‑1973; while the last round of litigation was in progress, the landlady filed an execution application on 7‑11‑1973 and it was on 24‑4‑1974 that the present petitioner, for the first time put in his claim as a party intervener by means of objection petition in the execution proceedings. It is on the record that the landlady sought the eviction of A.K. Mumtaz inter alia, on the ground of subletting of the premises to the present petitioner and some others unauthorisedly. The petitioner is a practising Advocate and was representing the sole respondent A.K. Mumtaz in the ejectment proceedings. The tenant in his written statement filed through the petitioner as his counsel, did not deny that petitioner was in possession of the premises, but averred that he is the joint tenant alongwith A.K. 'Mumtaz and others. In spite of these facts the petitioner did not move the Court for being impleaded as a party but remained contented with contesting the proceedings as a counsel on behalf of A.K. Mumtaz until after about ten years, he came up with his own claim to possession. It was on this ground that the executing Court held that the objection petition filed by the petitioner was mala fide as all along he was aware of the proceedings and did not put in his personal claim in the ejectment proceedings. The executing Court proceeded on the basis of the rule laid down by this Court in Mst. Khurshid Begum v. Ghulam Kubra 1982 SCMR

90. The High Court also upheld the view taken by the executing Court and rejected the contention of the petitioner that the law laid down in Mst. Khurshid Begum's case was not attracted in the facts of this case. The petitioner has reiterated his contention but we agree with the High Court that the ratio of Mst. Khurshid's case is directly applicable in this case and indeed with greater force. The petitioner being the counsel for the tenant cannot deny knowledge of proceedings before the Rent Controller. It was for him to have set up his claim before the Rent Controller and obtained the adjudication of the matter at the stage of preliminary issue when the Controller was determining the question of statutory tenancy in the premises. His having refrained from taking this course, disentitled him from asking the Court to re‑open the matter at the stage of execution of the order of eviction. " In the last case the facts appear to be that the landlords sued the tenant and obtained an order of ejectment against him on the ground of their bona fide personal need. The order was maintained up to the Supreme Court. It appears that before the Rent Controller and also at the appellate stage only the tenant against whom the application was filed contested the case but at the execution stage this respondent joined hands with certain other persons and filed objection praying that their claim be adjudicated and till its adjudication they be not ejected in execution of order of eviction passed against the original respondent. On these facts the Supreme Court held that: "Syed Saqlain Abid was the sole respondent in the ejectment proceeding before the Rent Controller. He had contested the proceedings for years and in different forums, right up to this Court. On no principles could he be permitted to join the other objectors or to make a common cause with them so as to raise questions which he could have raised before the Rent Controller and having not raised he was precluded for all time, particularly before the executing Court, from re-agitating them. If the executing Court is allowed to dispose of his objection in terms of the issues framed but if the entire jurisdiction of the Rent Controller would be subverted and a proceeding in the nature of review or rehearing would be undertaken not by the Tribunal having exclusive jurisdiction in the matter but by a Civil Court while seized of the execution of the order. So far as Syed Saqlain Abid's claim was concerned, it could not at all be entertained. " On the basis of the aforesaid authorities the contention of the counsel is that the appellant had full opportunity of raising the question of his occupying a shop on Plot No. E‑11, before the Rent Controller. He submits that in fact this should have been done in the written‑statement filed by the appellant. However, I am unable to agree with the contention and in my view none of the three cases cited by the counsel would be relevant in the circumstances of the present case. In the ejectment application filed by the respondent the very first para. reads that, "he is the owner/landlord of the Shop No.2 on Commercial Plot No.E‑10, situated in Block‑4, Drigh Colony, Karachi". Nowhere in the said application he has said a word about his claim to shop situated on Plot No. E‑11, This application of the respondent was granted by the Rent Controller by his order, dated 24‑1‑1991 and the last para. of this order is to the following effect: "The upshot of my findings on the issues involved in the inquiry is that as I have reached to the conclusion that the applicant was not in occupation of Shop No. 1, therefore, in terms of the directives of the Hon'ble Supreme Court of Pakistan the opponent is hereby directed to vacate Shop No.2 on Plot No.E‑10 in Block No.4, Shah Faisal Colony within one month of this order and to hand over the possession of the shop in dispute to the applicant. " Thus, it is clear, both, from the application filed by the respondent and also from the ejectment order passed by the Rent Controller that the appellant was sought to be evicted from the shop situated on Plot No.E‑10 alone and no other plot, as such, there could have been no occasion for the appellant to give information that he was also in occupation of a shop situated on another plot. Indeed, he could not have even foreseen that on the basis of the order obtained for his eviction from Shop No.E‑10 he would also be evicted from the other shop situated on Plot No. E‑

11. In this regard it may be mentioned that in so far as Plot No. E‑11 is concerned, the case of the appellant is that this plot belongs to the son of the respondent and this position has been admitted by the respondent in his cross‑examination. In these circumstances, in my view, on the basis of the said order, dated 24‑1‑1991 as also respondent's ejectment application, the respondent/landlord would be entitled to the shop situated on Plot No. E‑10 only and not to any other shop on other plot. It is next contended by the learned counsel for the respondent that it was admitted by the appellant that the respondent was the landlord in respect of both the shops, being the owner of the one on Plot No.E‑10 and being entitled to receive rent for that on Plot No.E‑11, and therefore, he was entitled to claim possession of both these shops in view of the wide definition of 'landlord' under the Sindh Rented Promises Ordinance. For this proposition reference is made to the case of Muhammad Ali v. Mst. Hameeda Begum (1988 SCMR 705). There while considering the question as to whether a widow of a deceased owner of a property could maintain an ejectment application under section 14 of the Ordinance when there were other legal heirs of the deceased too who had not joined the widow in the proceedings, it has been observed that. "It may also be mentioned that the expression landlord has been used in the Ordinance in a wider sense for it includes a person who need not be the owner of the premises at all; all that is required is that he should be authorised or entitled to receive rent in respect of the rented premises. In this case all the other heirs of Pir Muhammad Nawaz had authorised the respondent not only to collect the rent of the house in dispute but also to deal with it in all respects including to get the same vacated and use it for her own occupation. " With this contention too I am unable to agree for the reason that, as mentioned earlier, in his application the respondent had sought eviction of the appellant specifically from the shop situated on Plot No.E‑10 only and not that on Plot No. E‑11, and therefore, even if he was covered by the difinition of 'landlord' in respect of the shop on Plot No. E‑11 by virtue of being entitled to collect rent therefor, he would still not be entitled to get the appellant evicted therefrom on that ground alone when he had made no such claim in his application. Muhammad Ali's case relied upon by the counsel would not, therefore, help him. In this regard it may be mentioned that in a later judgment passed in the case of Syed Muhammad Hyder Zaidi and others v. Abdul Hafeez (1991 SCMR 1699) the Supreme Court after considering a number of cases on the point including Muhammad Ali's case held that:‑‑‑ "

22. We are inclined to hold that the word 'landlord' used in section 14 refers to its primary meaning, namely, the owner and not to its extended meaning. In our view, an attorney or an agent simpliciter who is authorised to receive rent on behalf of the owner of the property concerned cannot press into service section 14 of the Ordinance for his personal benefit. An application under section 14 can be maintained by the persons specified therein (or on their behalf), who should have interest in the property as the owner, either as the sole owner or as once of the co‑owners. We may further observe that the Court, while construing section 14 will place liberal construction as to advance the object for which, it has been enacted rather to defeat it, but at the same time, the benefit of the above section cannot be extended to the persons other than those specified therein. The above conclusion is fortified by the fact that the definition of the term 'personal use' given in clause (g) speaks of use of the premises by the owner thereof and/or his wife or husband, son or daughter. Subsection (2) of section 14 of the Ordinance refers to ' a building owned by him in any locality'. Furthermore, section 10 of the Ordinance contemplates service of a notice by the new owner on the tenant through a registered letter in case of change of ownership because of sale, gift, inheritance or by some other mode. It does not provide for service of a notice on account of change of a landlord who includes an attorney or a person for the time being receiving rent on behalf of the owner. " For the reasons discussed above, in my view, on the basis of his ejectment application, the Rent Controller's order, dated 24‑1‑1991 and the order in appeal the respondent is entitled to claim eviction of the appellant from the shop situated on Plot No.E‑10 only and not that situated on Plot No.E‑

11. Since the case of the appellant is that by removing the common wall between the two shops situated on Plot Nos.E‑10 and E‑11, he converted these into one joint shop, the respondent would be entitled to the eviction of the appellant only from that portion of the said joint shop as is situated on Plot No. E‑10 and not from the portion thereof as may be on Plot No. E‑

11. However, in the present case although the appellant claims to be occupying a shop on Plot No. E‑11, there is no evidence on the point, obviously as, this issue for the first time cropped up at the stage of execution when, according to the appellant, the respondent attempted to evict him from the shop occupied by him on Plot No. E‑

11. As such in order to determine the issue as to whether the appellant is occupying a shop or portion of the said joint shop, which is situated on Plot No.E‑11, it is necessary to hold further enquiry. As such I set aside the impugned order and remand the case to the Rent Controller with the direction to determine as to whether any portion of the shop from which the appellant is sought to be evicted is situated on Plot No. E‑11 Block‑4, Shah Faisal Colony, Karachi as alleged and for this purpose he will allow the parties to produce evidence. This he will do within six weeks. The Rent Controller will thereafter, proceed to execute the eviction order against the appellant in respect of the shop or as the case may be, portion of the said joint shop, situated on Plot No.E‑10, Block No.4, Shah Faisal Colony, Karachi only. The appeal is disposed of in terms of this order. Office is directed to return the R & P to the Rent Controller without delay H.B.T./M‑226/K Order accordingly