P L D 1994 Quetta 71 (PLP)

(4) Whether the applicant entitled for the relief claimed`' (5) Relief. The applicant examined A.W.1 Nawazish Ali, A:W.2 Dost Muhammad, A.W.3 Aamir Rashid and his attorney Shamsul Haque in support of the application, whereas in rebuttal the appellant examined R.W.1 Masood Shah, R.W.2 Shafique Ahmad, R.W.3 Atta Muhammad and Mst. Khairun Nisa herself appeared.

5. Learned Rent Controller vide order dated 20-12-1192 accepted the application and ordered restoration of possession to tenant Hakeem Abdul Samad. Feeling aggrieved of the said order present appeal has been filed.

6. Heard K.N. Kohli, Advocate fur appellants, and Mr. H. Shakil Ahmad for respondent.

7. According to Mr. 1.N. Kohli the eviction application had been filed on 28-7-1985 upon which the Controller passed the eviction order in favour of Mst. Khairun Nisa. An appeal filed by the tenant was dismissed on 12-4-1990 and C.P.S.L.A. filed by him was also dismissed by the Hon'ble Supreme Court. He pointed out that Mst. Faiza is the granddaughter of Mst. Khairun Nisa and this fact is not denied by the tenant in the written statement. It was contended by learned counsel that Mst. Khairun Nisa was an old lady of about 82 to 85 years of age and she has now expired. After getting the vacant possession of the premises she factually started teaching Qur'anic Verses to the children of the Mohalla. However, being an old lady she gifted this premises in favour of her granddaughter Mst. Faiza. It was further contended that Mst. Faiza and her husband Saleem were looking after the said old lady in the premises.

8. As far as legal aspect is concerned the learned counsel inviting my attention to section 13(4) of the Ordinance contended that the same is not attracted in the instant case because neither late Mst. Khairun Nisa had ever re-let the premises in question to any one, nor she failed to run a Madrissa in the said premises. He, therefore, contended that the impugned order of the Controller is ex facie illegal and thus liable to be set aside.

9. Besides the counsel urged that the intention of the legislature by incorporating section 13(4) of the Ordinance was not to put restraints on the property rights of the citizens but to check mala fide actions and raising exorbitantly rents of the premises. The intention of the legislature is not to put an embargo on a landlord to gift or to sell the property. In this regard reliance has been placed on the definition of `letting' as given by Ballentine's Law Dictionary and the Universal English Dictionary.

10. On the contrary Mr. Shakil Ahmad vehemently opposed the contentions so raised urging that late Mst. Khairun Nisa had got her own house at Toghi Road which is near to the demised premises. She wanted vacant possession of the demised house for the sole object of running a Madrissa in the same. However, she failed to occupying the premises and run a Madrissa. She re-let the demised house to Mst. Faiza and her husband Saleem instead of running a Madrissa therefore section 13(4) is attracted. As far as question of putting embargo on the right of landlord to transfer the property, the learned counsel submitted that this argument was not available because a gift can be -effected and symbolic and constructive possession can be handed over. The learned counsel further attempted. to point out discrepancies and contradictions in the depositions of R.Ws. in order to establish that late landlady never used the demised house for establishing a Madrissa in it. Therefore, according to him the Rent Controller rightly ordered restoration of possession to the evicted tenant.

11. I have given my anxious consideration to the arguments so advanced. In the first instance it would be profitable to reproduce section 13(4) of the ordinance. The same is thus reproduced hereunder:-- "

4. Where a landlord who has obtained possession of a building or rented land in pursuance of an order made under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of subsection (3), does not himself or where the building has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining possession, or having been so occupied is re-let within two months of the said date to any person other than the original tenant, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly." From bare perusal of subsection (4) of section 13 it becomes abundantly clear that prerequisite for attracting this subsection is when, the landlord in pursuance of the order made under sub-paragraph (i) or sub paragraph (ii) of paragraph (a) of subsection (3) does not himself or where the building has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date then in that case an application under section 13(4) shall be entertained. Its second part becomes operative when the premises has been re-let within two months of the said date to any person other than the original tenant; in that case, too, the tenant can, apply for restoration of possession. 1l. As far as 1st part of section 13(4) of the Ordinance is concerned; applying the same to the facts of the present case, it may be seen that it has come on record that vacant possession of the demised house in favour of landlady was ordered against which an appeal was filed which was decided by the High Court on 12-4-1990. C.P.S.LA. No. 27-Q of 1990 filed before the . Supreme Court was disposed of on 22-4-1990. Thus the landlady in the instant case could obtain possession of the building within one month of the said date i.e. 22-4-1990 because the original eviction order merged into the said order. Admittedly vacant possession was handed over to her and she obtained the vacant possession on 2-5-1990. Thus the tenant was not entitled to restoration of possession of said building on this score. Although Mr. Shakil vehemently urged that the landlady failed to occupy the premises for more than 6-1/2 months but there is no evidence on record to substantiate his contention. Rather the tenant himself in para. 3 of the application filed under section 13(4) of the Ordinance admitted that landlady got the possession on 2-5-1990 in the following terms:-- "Consequently on 2-5-1990, the applicant handed over the vacant possession of the house in question to the respondent in accordance with the direction of Hon'ble Court:"

12. Adverting now to the second part of paragraph 4 of section 13 it may be observed that if the landlord/landlady after obtaining occupation of the premises re-let the same within two months of the said date to any person other than the original tenant, then the tenant shall be entitled to restoration of the building. Here the argument of Mr. K.N. Kohli becomes relevant. According to him the premises was never re-let to any one else; rather it was gifted to Mst. Faiza by her grandmother which does not amount to re-letting. I have perused the meaning of re-let as given in the Ballentine's Law Dictionary which reads, . "to let, house or land etc. lease again; to sublet." Similarly in the Universal English Dictionary, let mean.,, "to select a contractor from two or more bidders for the job, to lease or demise property." There is no evidence on record that after getting possession of the premises on 2-5-1990 late Mst. Khairun Nisa re-let this premises on rent either to her grand daughter Mst. Faiza or any one else. Not an iota of evidence had been brought on record to prove this fact by the evicted tenant. Relating means to demise the property or to give it on lease, thus handing over possession, after statutory period, without letting the premises to any one other than the original tenant does not give rise to a cause to the tenant to claim restoration within the meaning of section 13(4) of the Ordinance. This would be the only convincing interpretation because the legislature intentionally used word "re-let" to any person other than the original tenant. No other meaning can be attached to the word `re-let'. Thus, if a landlord after obtaining possession of a building in pursuance of an order of the Controller under sub-paragraph (i) or sub paragraph (ii) of paragraph (a) of subsection (3) of section 13 of Ordinance gifts the property after two months of the said date this would not give a cause to the tenant to apply to the Controller for an order directing that he shall be restored possession of such building. Besides the legislature has put a period of two months which will be crucial even for re-letting. In other words the landlord has been given an option to use his property in a manner which suits his interest after two months of getting possession in pursuance of order of the Controller. It may be observed in this regard that if we do not adhere to this interpretation, the natural corollary would be that a landlord cannot give such a premises on rent or re-let it for ever if the same has been occupied by him in pursuance of order of the Controller under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of subsection (3) of section 13 of Ordinance. But this cannot be the intention of the legislature. Hence the legislature clearly laid down that restoration of possession could only be ordered if a tenant proves that a landlord after obtaining possession of a building or a ;rented land in pursuance of order made under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of subsection (3) of section 13(4) is relet within two months of the said date. The use of words "said date" has been used in order to signify the period within which such embargo or bar shall be operative. Beyond such period the landlord shall be at liberty to use the building or rented land according to his own wish.

13. Apart from this as far as merits of the case are concerned late Mst. Khairun Nisa (since dead) the landlady in her statement which was supported by the remaining R.Ws. clearly stated that she had been using the premises for teaching Qura'nic Verses to children. I see no reason to disbelieve this version, although the original tenant also produced witnesses in rebuttal. In fact the real lis compelling the original tenant to file application for restoration of possession appears to be that demised property was gifted to Mst. Faiza, the granddaughter of Mst. Khairun Nisa. But as stated earlier I do not see any bar to gifting of the property by the landlady particularly after passing of the statutory period of two months when she got possession of the said property in pursuance of the order of the Controller. Thus even on merits it cannot be concluded that the premises was not used for the purpose of Madrissa. On this score too, the order of the Controller is not sustainable. In the end it may be pointed out that landlady expired during pendency of appeal and her daughter Mst. Ahnas was impleaded as respondent. From the above discussion I have come to the conclusion that this appeal must succeed. I order accordingly and set aside the impugned order passed by Controller dated 20th December, 1992, resultantly the application filed under section 13(4) of the Ordinance is dismissed. However, I leave the parties to bear their own costs. AA./469/Q Appeal accepted.