1989 PLP 1093 (CLC)

By this appeal, the appellant has challenged the order of the Rent Controller, who dismissed his application for ejectment. The case of the appellant as disclosed in his affidavit‑in‑evidence is that the shop in dispute is the property of the Jama Masjid, R.A. Co operative Housing Society Malir Halt, Karachi, and that the appellant is the tenant in the said shop. It is further the case of the appellant that he inducted the respondent as his sub‑tenant in the said shop at the monthly rent of Rs.120 while the rent payable by the appellant to the mosque is only Rs.20 per month and that the respondent defaulted in payment of rent since June, 1979. The respondent/ opponent filed his written statement contending that there is no relationship of landlord and tenant between the parties and that the shop in question being the property of the mosque is managed and controlled by the Board of Trustees of the Mosque and that he is the statutory tenant of the mosque for more than eight years. Default in payment of rent is denied.

2. The Rent Controller holding that there was no relationship of the landlord and tenant and that thus there being no default in payment of rent dismissed the rent case filed by the appellant.

3. I have heard the learned counsel for the parties. Mr. Khaliq Humayun, the learned counsel for the appellant. has argued that the shop in question was rented out to the appellant by the mosque and that in turn he sublet the same to the opponent and thus became entitled to receive the rent. From this, he has argued that the appellant, therefore, is a 'landlord' and the respondent is 'tenant' as defined in the provisions of sections 2(f) & 2(j) of the Sind Rented Premises Ordinance, 1979. The two definitions are reproduced as under:‑ "(f) "landlord" means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises. (j) "tenant" means any person who undertakes or is bound to pay rent as consideration for the a possession or occupation of any premises by him or by any other person on his behalf and includes: (i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; (ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant."

4. The learned counsel has then submitted that initially one Zafar Siddiqui, the father of the . appellant was the General Secretary of the said mosque who had introduced the appellant and at his instance the shop in dispute was rented out to the appellant. He has referred to the terms and conditions of rent (D‑2) and application form (D‑3). Both these documents show that it was specifically provided that the tenant would not have any right to sublet the shop in dispute. These documents also show that the appellant was introduced by his father Zafar Siddiqui who admittedly was then General Secretary but the Chairman who is said to have allotted the shop to the appellant is not examined. As against this the case of the respondent is that he was given the shop on rent by Zafar Siddiqui who used to collect Rs.120 per month as rent from him but he credited only Rs.20 in mosque account and misappropriated Rs.100 per month. The respondent contends that when this fact came to the knowledge of authorities, the said Zafar Siddiqui was removed and one Shahid Ali took over as General Secretary.

5. In view of above facts, the contention of the learned counsel that the appellant is a 'landlord' is a hypothetical proposition. It can hardly be conceived that the legislature while defining 'landlord' would have meant that any tenant having sublet the premises would come to acquire the status of the landlord which would have the effect of simply doing away with the rights of the owner. The word 'landlord' is to be interpreted in context with the word 'owner' and would include any person authorised in law to do any such act but would not include a tenant subletting the premises for the reason that subletting of the premises has by itself been provided as a ground for ejectment under section 15(iii)(a) of the Sind Rented Premises Ordinance, 1979.

6. Lastly, Mr. Khaliq Humayun, learned counsel for the appellant, has argued that the appellant had filed a civil suit being Suit No.3528/1979 against the said Shahid Ali and present respondent which was decreed in his favour. The judgment in the suit is produced and I have perused the same. The following relief in the suit was prayed for:‑ (a) Declaration that plaintiff is tenant in respect of Shop No.27, and defendant No.3 is his sub‑tenant, the plaintiff is not a defaulter in the recovery of rent by defendant No.2 from the defendant No.3 directly and threat of dispossession of plaintiff without due course of law is illegal. (b) Injunction restraining the defendant Nos. 1 and 2 from recovering any amount directly from defendant No.3 in future. (c) Any other relief." Issue No.6 in the suit reads:‑ "Whether the defendant No.3 (present respondent) is the bona fide tenant of defendant No.2 (Jama Masjid) in respect of the shop in question with defendant No.l as its Nazim‑e‑Ala?" This issue was answered in negative. However, nowhere in this judgment any finding is given with regard to the relationship of the present appellant and tenant.

7. In view of the above reasons, I am of the view that the appellant has failed to establish his rights as the landlord and the E findings of the Rent Controller are maintained. The appeal is dismissed with no order as to costs.

8. The present appeal was heard on 12‑2‑1989 and the judgment was reserved. However, after I dictated the judgment, I have received an application under section 21(3) of the Sind Rented Premises Ordinance, 1979 through post along with a letter allegedly from the appellant. By this application, the appellant has only repeated the arguments of his Advocate on the point of judgment in earlier civil suit. The application is accordingly dismissed as not maintainable, the same be consigned to the file. H . B . T . / M‑718/ K Appeal dismissed