P L D 1976 Karachi 512 (PLP)

Dates of hearing: 28th, 29th and 30th January 1976. In this Second Appeal the appellants who are sub-tenants, challenge the validity of an order made by the Rent Controller under subsection (6) of section 13 of the Rent Ordinance directing them to deposit certain sum as arrears of rent, the non-compliance of which resulted in the consequential order putting the landlord in possession of the premises in dispute.

2. The facts giving rise to this appeal are that the respondent No. 1, hereinafter referred to as the Landlord, filed an ejectment application originally against the two opponents, namely, the respondent No. 2 herein, the main tenant, and one Suleman Yousuf, the appellant No. 1, herein, who was said to be the sub-tenant. Suleman in his written statement disclosed that he had no concern with the premises and that the appellant No. 2 was the sub-tenant, accordingly, the appellant No. 2 was joined .as the opponent No. 3 in the ejectment application. The ejectment was sought on two grounds, non-payment of rent and bona fide re-construction. On 6-11-1964, the Rent Controller passed an order under subsection (6) of section 13 in presence of the parties. The case of the main tenant was that portion of the premises in his physical occupation had fallen down and he had left that portion on 1-6-1962 and that the remaining portion was in occupation of Suleman and the third opponent. The Rent Controller proceeded to "tentatively" treat Suleman and the third opponent as tenants from 1-6-1962, liable to pay the rent to the landlord as the main tenant had left the premises and his tenancy had come to an end. He, therefore, directed Suleman and opponent No. 3 to deposit the arrears of rent amounting to Rs.3,120 from 1-9-1962 to 31-10-1962 in two equal instalments and future rent before 5th day of each following month until further orders. This order was not complied with the result that defence of the sub-tenant was struck off on 18-5-1965. but in appeal this order was set aside and the case remanded back to the Rent Controller. to enable the sub-tenants to prove their assertion that they had no knowledge of the order dated 6-11-1964. On remand the Rent Controller held that the sub-tenants had the knowledge of the order dated 6-I1-1964 but it was of no legal consequence as there was no privity of contract between the landlord and the sub-tenants and the Rent Controller could not call upon the sub-tenants to deposit the arrears of rent as they were not the tenants of the landlord. The Rent Controller, therefore, refused to strike off the defence of the sub-tenants. In appeal this order was reversed. The learned Additional District Judge held that although there was no direct contract between the landlord and the sub tenants, the latter were holding the premises on behalf of the main tenant and, therefore, in constructive . possession thereof. The learned Judge went on to observe that it cannot be held that there was no privity of contract between the landlord and the sub-tenants for the latter shall be deemed to be in possession as sub-tenants on behalf of the main tenant and will be bound by the privity of contract between the landlord and the main tenant as they bad taken the premises on sub-lease from the main tenant without the consent and knowledge of the landlord.

3. The worth of the reasoning which found favour by the learned Additional Sessions Judge in arriving at the conclusion that the sub tenants were obliged to pay rent to the landlord can be judged from the fact that Mr. Nafisuddin, the learned counsel for the landlord found it inconvenient to even refer to it. The law is well settled that there is no privity of contract between a landlord and a sub-tenant so much as that in an action by the landlord against the main tenant the sub-tenant is not even a necessary party though it may be proper and convenient to join him as a respondent for reasons impressively set out in the Division Bench's judgment of the Lahore High Court in the case of Mehraj Din and others v. Muhammad Yasin and others (P L D 1968 Lah. 20). Mr. Nafisuddin, however, contended that the Rent Ordinance makes a departure from the general law for it creates a direct relationship between the landlord and a sub-tenant. The learned counsel invited my attention to the definition of tenant in the Rent Ordinance as including- "a person placed in occupation of a building or rented land, by its tenant with the consent in writing of the landlord." To begin with it is not the landlord's case that sub-tenancy was created with his consent. What is more important, however, is the error in the proper understanding of the Rent Law. If the sub-tenant becomes direct. tenant of the landlord under the Rent Law what happens to the main tenant and his contract of tenancy with the landlord? How does he enter the oblivion? The main tenant is a landlord, within the meaning of the expression defined in the Rent Ordinance, of an authorised sub-tenant. Will the sub-tenant have two landlords? To my mind that part of the definition of a tenant which includes an authorised sub-tenant has to be read not in isolation but with the complementary definition of the landlord in the Rent Law, and if so read it becomes quite clear that an authorised sub-tenant is a tenant of the main tenant and the latter is his landlord and this relationship between the two will also be governed by the Rent Ordinance.

4. Before I part with this contention I must refer to the following observations of a Division Bench of the Lahore High Court in the case of Mehraj Din and others v. Muhammad Yasin and others:- "Only in cases where sub-leases are created by the permission in writing of the landlord, the sub-lessees acquire the status of an independent tenant." On which strong reliance was placed by Mr. Nafisuddin. As is plain from, the reading of the facts of that case, the Court was not called upon to determine the relationship between the landlord and the sub-tenant and the latter's obligation to pay rent to the former under the Rent Law. The learned Judges do not say that the authorised subtenant will acquire the status of an independent tenant vis-a-vis the landlord. At its best the observations are, as was contended by Mr. Wahid Farooqui, the learned. counsel for the sub-tenants, obiter and the Division Bench did not have the occasion to examine the definition of landlord and the tenant in the Rent Law.

5. It follows, therefore, that under subsection (6) of section 13 the Rent Controller did not have the jurisdiction to direct a sub-tenant to deposit the rent due from the main tenant.

6. The result is that this appeal is allowed and the matter will go back to the Rent Controller who will make appropriate order for depositing rent by the main tenant. In the circumstances there will he no order as to costs. S. Q. Appeal allowed.