1986 PLP 1613 (CLC)

(1) Whether there exists any relationship of tenancy? (2) Whether the opponent has committed wilful default with effect from 1‑1‑1980? (3) What should the order be? The learned Controller after discussing the evidence produced by the parties and relying on section 5 of the Sind Rented Premises Ordinance, 1979 dismissed the ejectment application as the appellant had failed to produce rent agreement or any other proof in writing regarding the existence of relationship of landlord and tenant between the parties. Mr. Shaikh Abdul Majeed, the learned counsel for the appellant has contended that from the evidence on record the appellant has established that she is the owner of the disputed premises and the respondent was paying rent to her. Miss Wajahat Niaz, the learned counsel for the respondent contended that there is no conclusive proof of the ownership as well as the relationship of landlord and tenant. She further contended that in view of section 5 of the Sind Rented Premises Ordinance as there is no agreement of tenancy as required by this section, the question of existence of tenancy or its proof in any other manner does not arise. In this regard the learned counsel has referred to Habib Ahmed v. Liaquat P L D 1984 Kar.

741. First I would like to deal with the merits of the case by referring to the evidence of the parties. From the very beginning the respondent has been disputing the title of the appellant as well as the relationship of landlord and tenant between the parties. The appellant has produced several witnesses to show that the property was purchased by her husband from Din Muhammad who had purchased it from Muhammad Umar. Exh.P.3 is a receipt dated 7‑2‑1968 on a stamp paper of Rs.2 by which Muhammad Umar had sold to Din Muhammad the premises built with mud and woods in Badal Para, Purana Golimar. Second document Exh.P.4 is also entitled as a receipt from Din Muhammad in favour of Murad Bukhsh, the husband of the appellant. By this document he transferred his right to Murad Bukhsh in respect of the two houses built of mud and two houses built of wood in Badal Para, Purana Golimar, Manghopir Road. This transaction was made on 23‑3‑1969. In the ejectment application filed by the appellant, the case is in respect of two wooden room constructed on Plot No. 342 Old Golimar, but nothing has been shown to co‑relate this property with the property alleged to have been purchased by the husband of the appellant. Moreover, receipt Exh. P/4 cannot create any title or interest in respect of immovable property, which is more than Rs.100 and is sought to be transferred by an unregistered document. Although this document was executed by Din Muhammad on 23‑3‑1969 the witness No.4 and the Oath Commissioner have signed and attested on 23‑4‑1969 i.e. one month after the alleged execution of the receipt. The appellant has also examined the executing witness, but this will not change the legal effect of the document produced by her. There is a genuine dispute between the parties regarding ownership and title to the property. In these circumstances the observation made in Rehmatullah's case 1983 S C M R 1064 should govern the situation where it was observed as follows:‑ "What is permissible for Courts of general jurisdiction in the field of fairplay, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy in a Civil Court, first and then again approach to the Controller. Even when the tenant has not succeeded before the Controller to create the required 'reasonable' doubt but has convinced him that his plea is not frivolous and or vexatious, but due to constraint of summary/ speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same." In the facts and circumstances of the case, I have refrained from making any observation on the merits of the case as the issue regarding ownership has to be settled by a civil Court. For the purpose of the present proceedings suffice to say that the appellant should first get her title cleared after which she can proceed with the ejectment case against the respondent. The next contention which has prevailed upon the learned Controller and on the basis of which the application has been rejected is the provision of section 5 of the Sind Rented Premises Ordinance which reads as follows:‑ "

5. Agreement between landlord and tenant.‑‑(1) The agreement by which a landlord lets out any premises to any tenant shall be in writing and if such agreement is not compulsorily registerable under any law for the time being in force, it shall be attested by, signed by and sealing with the seal of, the Controller within whose jurisdiction the premises is situated or, any Civil Judge, or First Class Magistrate. (2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registerable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registerable, the original duly attested under subsection (1) shall be produced and accepted in proof of the relationship of the landlord and tenant: Provided that nothing in this section shall affect any agreement between the landlord and tenant; immediately before coming into force of this Ordinance." Miss Wajahat Niaz while supporting the order of the learned Controller has contended that unless the agreement of tenancy is made as provided by section 5 of the Sind Rented Premises Ordinance 1979 there can be no valid tenancy in the eyes of law. In this regard reference has been made to Habib Ahmed's case P L D 1985 Kar. 741 where it was observed as follows:‑ "It would be noticed from the subsection. (1) of above section that every agreement by which any premises is to be let out has got to be reduced in writing. The use of word .shall in the said subsection denotes the intention which clearly is that it is mandatory for the parties to have such agreement in writing. In other words the oral agreement in respect of such transaction will have no legal force and hence will not be permitted to be used as the basis for any litigation in respect of any matter including ejectment of tenant under the Ordinance. This is clear from subsection (2) hereinabove which requires the written agreement to be produced and accepted as proof of the relationship of landlord and tenant between the parties." With respect I am unable to subscribe to the view expressed ink this judgment. Sind Rented Premises Ordinance was promulgated in November, 1979, which repealed the provision of Sind Urban Rent Restriction Ordinance, 1959. The repealed Ordinance had not provided for a mode of execution of tenancy agreement. It only restricted itself in giving definition of the terms 'landlord' and 'tenant'. In the Sin Rented Premises Ordinance, 1979 section 5 and section 6 were introduced which provisions did not find place in the earlier Rent Ordinance of 1959. Section 5 has been reproduced above. Section 6 reads as follows: Section

6. Tenure of tenancy.‑‑No tenancy shall, at a time, be valid beyond such period as the landlord and tenant have, by mutual agreement, fixed before or after the commencement of the tenancy: Provided that nothing in this section shall affect any tenancy existing immediately before coming into force of this Order." Section 5 provides a mode for executing an agreement of tenancy which will be accepted as proof of relationship of landlord and tenant. Section 6 provides that after expiry of the period of tenancy fixed under the agreement between the parties the tenancy shall cease to be valid. Consequently by section 15 subsection (2)(i) a ground for ejectment was provided as follows:‑ Section 15 (2).‑‑The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as specified in the order, if he is satisfied; (i) that the tenancy has ceased to be valid under section 6. (ii) ,.:....... Therefore, if a duration of tenancy is fixed under an agreement then on the expiry of such period the tenancy ceased to be valid and the landlord could seek ejectment of the tenant. Subsequently, section 6 and section 15 (2)(i) were omitted by an amendment made by Sind Rented Premises (Amendment) Ordinance 1984 with effect from 30th July, 1984. Section 6 and section 15 (2) (i) do not exist on the statute book. In this background we have now to examine the provision of section 5 of the Sind Rented Premises Ordinance. Before adverting to section 5 it will be pertinent to keep in mind the meaning of the word "tenant" as definded by section 2 subsection (j) which reads as follows:‑ "(j) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the 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; and" This definition in general term provides that person who agrees or is liable to pay rent as consideration for possession or occupation of any premises will be a tenant. Besides the contractual tenants it, recognises statutory tenants as well. Significantly enough it does not provide that contractual tenancy will be created only by agreement in writing as provided by section 5, nor this definition is subjected to any other provision of the Ordinance. Section 5 provides that the agreement of tenancy shall be attested by signing and sealing with the seal of the Controller within whose jurisdiction the premises is situated or any Civil Judge or any 1st Class Magistrate. Subsection (2) provides that the relationship of landlord and tenant can be proved by producing a certified copy of a registered agreement or the original of an agreement not compulsorily registerable duly attested in terms of section 5 (1). Section 5 or any other provision of the Ordinance does not provide that if the agreement of tenancy is not in accordance with section 5 it will be a nullity in law and will not be accepted as a proof of relationship of landlord and tenant. If the intention of the Legislature would have been to nullify all tenancy agreements which are not in conformity with the provisions of section 5 then such a provision would have been provided in the Ordinance. The absence of any penalty for non compliance with section 5 of the Ordinance makes it directory and not mandatory. The use of the word "shall" does not make the provision of section 5 mandatory. While interpreting a provision of law the entire scope of the statute and other provisions have also to be taken into consideration. In Niaz Muhammad v. Fazal Raqib P L D 1974 S C 134 it was observed:‑ "It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the fact shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision." Section 5 provides a manner for making the agreement and care' has been taken to avoid any doubt or ambiguity in execution of the tenancy agreement. It is well‑settled that any person can enter into agreement of tenancy orally as well. It is not prohibited under law. However it is also well‑recognised that as the tenancy creates a valuable right it is advisable and convenient that it should be in writing to avoid dispute regarding terms and existence of relationship of landlord and tenant between the parties. Therefore, section 5 is in the nature of procedural provision which requires the agreement to be executed in a particular form, but it does not nullify the agreement not made in this form. As observed in Khuda Yar's case P L D 1975 S C 678, the procedural provisions are "desired with a view to impart certainty, consistancy, and uniformity to the administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fides". Section 5 was designed to complement section

6. This was necessary as under section 6 after expiry of agreed period of tenancy, the tenancy did not only cease to be valid but under section 15 (2)(1) was liable to be ejected. Therefore, in order to press in service the provisions of sections 6 and 15(2)(i) it was necessary that the agreement of tenancy should be executed as provided by section

5. In my view section 5 requires agreement of tenancy to be made in writing in a particular form which shall if produced in Court will be accepted without any further proof but it cannot be extended to mean that where the agreement of tenancy is in writing but not in the manner provided by section 5 the relationship of landlord and tenant shall not be created between the parties. Refer Mushtaq Ahmad v. Abdul Sattar 1984 M L D

1. It is a well‑settled principle of interpretation that all the provisions of a statute are to be construed harmoniously and to avoid conflict. If a strict interpretation as contended by the learned counsel for the respondent is given to section 5 then the tenancy created orally cannot J be treated as valid and will run counter to the provision of section 2 (j) which defines tenant and does exclude tenancy created by oral agreement. It is significant to note that in section 5(2) the production of certified copy of registered document and where it is not compulsorily registerable then the original deed, duly attested as provided by subsection (1) shall be produced and accepted in proof of relationship. If a strict view is taken and this provision is held mandatory then although an unregistered agreement in terms of section 5 (2) was executed, if it is lost it cannot be proved by producing its copy. The provisions of section 5 do not confer any substantive right. They are procedural in nature. If the agreement of tenancy in writing is not in terms of section 5 then neither it is invalidated nor the parties are debarred from proving the relationship of landlord and tenant by proceeding and proving such agreement or other admissible evidence as provided under law. The appeal is dismissed. A.A. Appeal dismissed,