1992 PLP 1195 (MLD)

Brief facts leading to the institution of the present petition are that shop bearing No.142 situated in Lower Bazar Murree was rented out by the petitioner to respondent No.3 on 2‑4‑1974 for a period of three years at the annual rent of Rs.850, which was subsequently increased to Rs.950. Rent was payable annually on 1st of April every year. On 17‑7‑1977, the petitioner made a gift of the shop in favour of his sister but he continued to manage the property and receive rent.

2. On 9‑12‑1985 the petitioner filed an ejectment petition against respondent No.3 on the ground of default in payment of rent for the years 1984‑85 and 1985‑86 and personal need of his son. On the pleadings of the parties, the learned Rent, Controller framed the following issues, (1) Whether the respondent is a wilful defaulter in the payment of all the rent? (2) Whether the petitioner bona fide requires the premises in dispute for the use of his son Qamar‑ul‑Islam? (3) Whether the utility tax is payable by the respondent? (4) Relief. The learned Rent Controller decided all the issues in favour of the petitioner and ordered ejectment of respondent No.3 vide his order, dated 5‑3‑1987. Respondent No.3 filed an appeal which was allowed by the learned District Judge, Rawalpindi vide his judgment, dated 4‑7‑1987 who reversed the judgment of the Rent Controller.

3. The petitioner's learned counsel urged that the tenancy was admitted by respondent No.3 in the written statement and he could not be allowed to deviate from the same. He urged that the learned District Judge had confused the issue of ownership and tenancy and wrongly held that after gifting away the property the petitioner was no longer a landlord. Referring to the definition of landlord given in section 2(c) of the: West Pakistan Urban Rent Restriction' Ordinance, the learned counsel urged that any person who, for the time being, was entitled to receive the rent was a landlord. Hence, notwithstanding the transfer of the shop through gift the petitioner continued to be the landlord as his entitlement to manage the property and recover rent was never disputed by respondent No.3. In support of his contention he placed reliance on the following judgments: . (1) Hakim Din v. Muhammad Irshad PLD 1978 Lah. 333; (2) Muhammad Saleem alias Seema v. Sarar Khan (deceased) through his Legal representatives and another PLD 1984 Lah.179; (3) Bakhtiar Ahmad v. Ghulam Qadir Khan 1986 CLC 1760; (4) Syed Muhammad Haider Zaidi v. Abdul Hafeez 1987 SCI 114R 611 (5) M.M. Saeed v. A.D.J. etc. 19 ALD 170 1); (6) Muhammad Sharif v. A.D J. etc. 1989 CLC 2285; (7) Mehraj Din v. Muhammad Ismaeel 1980 SCMR 764; (8) Sh. Muhammad Rafique v. Mian Nadir Jang Bahadar and others 1984 SCMR 1226; (9) Gulistan etc. v. Muhammad Akram 1983 CLC 2808; (10) Lal Zarin v. Niaz Muhammad Khan PLD 1984 Pesh. 46; (11) Muhammad Siddique v. Anjuman‑e‑Taheiri Saddar Jamaat Committee 1987 CLC 35Z; (12) Jan Muhammad v. Mst. Bashiran Begum 1988 CLC 2353 and (13) Muhammad Fazal v. Tariq Aziz Malik, General. Attorney of Mst. Ikram Jan 1989 MLD 2213; He further submitted that once the petitioner was held to be a landlord then the need of his son was relevant under the law. He pointed out that admission of tenancy, remittance of rent and payment of rent to the petitioner were sufficient to show that the petitioner was a landlord.

5. On the other .hand, the learned counsel for the respondent submitted that the admission of tenancy was subject to the averments made In para 4 of the written statement. He explained that the tenancy under the transferee i.e. sister of the petitioner was admitted but denied under the petitioner. He urged that after transfer of the shop the petitioner was no longer entitled to receive rent. In support of his contention he placed reliance on the following judgments:‑ (1) Dr. Miss

1. Ali Muhammad v. Muhammad Shafique PLD 1971 SC 494; (2) Mst. Razia Butt v. Ghulam Raza PLD 1979 Quetta 157; (3) Syed Muhammad Haider Zaidi v. Abdul Hafeez 1987 SCMR 611; (4) Mrs. Zarina Khawaja v. Agha Mahboo6 Shah PLD 1988 SC 190; He also submitted that the petitioner not being the owner could not urge the personal requirement of his son as a ground for seeking eviction of respondent No.3. In this respect he placed reliance on Muhammad Israil Biswas v. Amrita Lai Chowdhury PLD 1961 Dacca

25. In reply the petitioner's learned counsel pointed out that the appeal in Syed Muhammad Haider Zaidi's case had since been dismissed by the Hon'ble Supreme Court.

5. In para.1 of the ejectment petition the petitioner had asserted that Muhammad Sharif respondent was a tenant under him at the annual rent of Rs.950. In reply respondent No.3 admitted the said para without any reservation or qualification.. In para. 4 of then ejectment petition it was averred that the shop was bona fidely required by the petitioner for use of his son Qamar‑ul‑Islam. This para was denied on the ground that the petitioner owned considerable rented. property and that the disputed shop was neither owned by the petitioner nor his son. Originally, the petitioner had leased out the shop to respondent No. 3 on 2‑4‑1974. After making a gift of the property in favour of his sister, he continued to receive rent from the tenant and it was only in the year 1984/85 that rent was not paid to him. The petitioner's sister never came forward to object to receipt of rent by the petitioner or management of the affairs of the disputed shop by him. Hence, notwithstanding the transfer of ownership the petitioner was entitled to receive the rent. To fall within the definition of landlord, the element of ownership is not a sine qua non. Even a person who is not an owner may squarely fall within the definition of the word `landlord'. Here I may refer to the judgments relied upon by the petitioner's learned counsel.

6. In Hakim‑ud‑Din's case a Division Bench of this Court had held that in a suit for ejectment of a tenant it is only the relationship of landlord and tenant that is relevant 'and the question of title to the property may arise indirectly only to ascertain the . issue bearing on this relationship: . In Muhammad Saleem's case,. it was held that the condition of‑ ownership of building or rented land is not a condition precedent for creating the, relationship of landlord and tenant within the meaning of clause (c) of Section 2 of the Ordinance. In the case of Muhammad Sharif v. A.D.J. etc. 1989 CLC 2285, it was held that the eviction petition filed by the previous owner was not incompetent merely because he had sold the rented premises. In Bakhtiar AhYfad's case, the property belonged to the minor sons but the father had been collecting rent. The father was held to be a landlord as he had been managing the property and receiving rent. Hence, the disputed premises were ordered to be vacated on the petition filed by the father on the ground of his personal need. In M.M. Saeed's case, it was held that ownership was not a prerequisite for seeking ejectment of a tenant. In this case, the tenant has been paying rent to the lessee of Nazool rent. The lessee though not an owner was held to be a landlord within the meaning of section 2(c) of the Ordinance. In Muhammad Fazal's case, it was held that the admission by tenant about existence of tenancy was sufficient to disentitle him from .denying the existence of relationship of landlord and tenant. It was also held in this case that where entitlement of the landlord to recover rent is based on his own ownership then he is bound to prove ownership beyond any reasonable doubt. The view that after admission of tenancy the tenant cannot deviate from the same and deny the relationship of landlord and tenant also finds support from the cases of Mehraj Din,,. D,. ‑Muhammad Rafq Gulistan etc., Lai Zarin, Muhammad Siddique; Jan Muhammad and Muhammad Fazal relied upon by the petitioner's learned counsel. In the present case the tenancy was admitted by respondent No 3 in unequivocal words. He could not be permitted to resile' from the same and deny the existence of relationship of landlord merely because the landlord had transferred the ownership of the premises to his sister through a gift. The petitioner had been receiving rent from respondent No.1 and managing the property even after making a gift of the property in favour of his sister. His claim to be a landlord was not based on the factum of his ownership but on his entitlement to receive rent and manage the property The petitioner's sister never objected to receipt of rent by the petitioner, management of the property and institution of the eviction petition against the tenant i.e. respondent No.3. In the circumstances of the case, it was hardly necessary for the petitioner to prove that he was owner of the disputed shop. Respectively following the views expressed in the above‑referred judgments relied upon by the petitioner's learned counsel I hold that the petitioner is the. landlord within the meaning of under section 2(c) of the Ordinance and respondent No.3 is a tenant under him. The judgments relied upon by the respondent' learned counsel proceed on their peculiar facts 'and are clearly distinguishable. In the case of Dr. Miss

1. Ali Muhammad, the landlady who was already in possession of a Clinic sought ejectment of the tenant from a shop for running a second Clinic but her prayer was refused. Pending appeal before the Hon'ble Supreme Court she created a trust in respect of all her properties including the disputed shop and appointed herself as the first trustee. It was held by the Hon'ble Supreme Court that running of a Clinic was not one of the purposes of the trust and the trustee could not get the shop vacated for the said purpose. The relevant portion of the judgment is reproduced below:‑ "The running a second Clinic in the disputed shop by the appellant in her individual capacity will benefit herself alone and will not enure to the benefit of the trust. Nor can the running of a Clinic in the disputed shop be a purpose of the trust. Far from augmenting the trust to any extent, the use of the disputed shop for the appellant's personal use as a Clinic will rather cause harm to the trust .." In the case of Mst. Razia Butt it was held that a person appointed merely to collect rent did not become a landlord particularly when the person authorising him had died. In the case of Syed Muhammad Haider Zaidi 1987 SCMR 611 the Honourable Supreme Court had granted leave to appeal t consider whether a person who had gifted the demised premises to his wife but continued to receive rent, could seek eviction of the tenant on the ground of his personal need. Finally the appeal (Civil Appeal 287‑K of 1986) was dismissed on 13‑11.‑1990 and it was held that the appellant not being the owner could not seek eviction of the tenant on the ground of his own use. The said case pertains to interpretation of the provisions of the Sindh Rented Premises Ordinance, 1979. In the said Ordinance, section 2(F) defines landlord as 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. Under section 2(G) of the Ordinance, meet4ng of `personal use' is given as use of the premises by the owner thereof or his wife (or husband), son or daughter. Obviously, the `personal use' unifier the provisions of the Sindh Rented Premises Ordinance does not contemplate the personal need of the landlord if he happens to be other than the owner, his wife or husband as the case may be, son or daughter. However, there is no provision defining `personal use' in the Punjab Urban Rent Restriction Ordinance and the personal need of any person falling within the ambit of the word landlord is relevant under the Ordinance. The case of Mrs. Zareena Khawaja also pertains to the interpretation of the provisions of Sindh Rented Premises Ordinance, and otherwise has no relevancy qua the facts and legal question involved in the present case. Muhammad Israil Biswas's case pertains to the interpretation of the provisions of the East Bengal Premises Rent Control Act, 1953 which were similar to those of the Sindh Rented Premises Ordinance. Under section 17(1) of the East Bengal Premises Rent Control Act, 1953 the bona fide personal requirement of landlord or a person for whose benefit the premises are held is relevant. Hence, it was held that a person holding the power of attorney could not seek eviction of the tenant for his own use instead of the use of the premises by the owner/landlord or any person for whose benefit the premises were held.

7. Under the provisions of the Punjab Urban Rent Restriction Ordinance the petitioner squarely falls within the definition of the word `landlord' and can seek eviction of respondent No.3 for use of the disputed premises by his own son who intended to start hardware business therein. Respondent No.3 is otherwise is a rent defaulter as he had failed to pay or tender the rent for the year 1984/85 within the stipulated period. He had paid rent for the year 1983/84 covering the period from 1‑4‑1983 up to 30‑3‑1984. However, for the next year, rent for the period 1‑4‑1984 to 30‑3‑1985 which was payable in advance on or before first of April was tendered by him through money order in December, 1985. Hence, a respondent No.3 was rightly held to be a rent defaulter by the learned Rent Controller.

8. For the foregoing discussion, I allow this petition and declare the judgment of the learned District Judge to be without lawful authority and of no legal effect and restore that of the Rent Controller. The respondent No.3 is allowed time for one month to vacate the shop. The parties are left to bear their own costs. AA./B‑10/L Petition accepted.