P L D 1969 Peshawar 216 (PLP)

MUHAMMAD SIDDIQ, J.

‑ This is a second appeal against the judgment of the learned District Judge, Peshawar, dated the 7th of December 1959 by which he dismissed the appeal filed in his Court by the present appellants against the order of the learned Rent Controller, Peshawar, dated the 8th of October 1959, ordering the ejectment of the appellants from the house in dispute by reason of the default in payment of rent.

2. The house in dispute belonged to the appellants and was mortgaged with possession with the respondent under the mortgage deed, dated the 8th of April 1951, which was registered on the l9tih of April 1951. According to the terms of this document the mortgage was with possession for a period of one year, after which the mortgagors were entitled to redeem the mortgage. On the same date, the mortgagors (appellants) executed a lease deed in favour of the mortgagee (respondent) purporting to take the property mortgaged, on lease for a period of ten months starting from the 10th of April 1951 on a monthly rent of Rs.

90. It is also recited in the rent deed that a sum of Rs. 90 had been paid to the lessor mortgagee as advance rent. The entire property of the mortgagor‑lessees was made liable for the payment of rent.

3. The respondent‑mortgagee landlord moved the Rent Controller under his application dated the 31st of March 1959 for the ejectment of the mortgagor‑lessee appellants on the ground that they had defaulted in the payment of rent with effect from the 8th of August 1954 till March 1959 and a sum of Rs. 4865 was outstanding against them. It was also pleaded that the house was required by the landlord for his own personal residence.

4. On the pleadings of the lessee‑appellants the following issues were framed :‑ (1) Whether the registered mortgage deed and the rent deed dated 84‑1951, were executed by the respondents? (2) Whether the aforesaid deeds, in fact, related to the pledge of the house and the interest thereon, if so, with what effect? (3) Whether the deeds in question were based on fraud and were further against public policy, if so, to what effect ? (4) Whether the relationship of landlord and tenants exists between the parties? (5) Is the application barred by limitation? (6) To what relief is the petitioner entitled? The learned Rent Controller decided issues Nos. 1 to 5 in favour of the landlord respondent and ordered the ejectment .of the present appellants. In appeal, the findings of the learned Rent Controller were affirmed. Hence this second appeal.

5. In the admitting order dated the 23rd of February 1967, our learned brother specifically mentioned the question as to whether the relationship of landlord and tenant subsisted between the parties and mention was made of the authorities reported as (1) Gopi Chand v. Muhammad Umar and 3 others 4 Judicial Records, Vol. II, p. 12. (2) Panaganti Ramaravanimgar v. Sri Rajah Volugoti Govinda Krishna Vachandra Bahadar Varu and others A I R 1927 PC 32. (3) K. S Mian Feroz Shah Sohbat Khan and others AIR 1933 P C 178. (4) Baijnath Prasad and others v. Jang Bahadar Singh and another A I R 1955 Pat. 357 in which the two privy counsel rulings referred above as also the decision in Rajniti Parasad v. Commissioner of Income-Tax, B. & O. A I R 1930 Pat. 33 (B) and the decision in Umeshwar Parasad v. Dwarika Prasad A I R 1944 Pat. 5 (C) were noticed. The latest authority on this point is reported as Muhammad Abdullah v. Abdul Jabbar (P L D 1967 Lah. 1000) in which it was held by our brother Farooqi, J. That where property was possession and the same was taken back on lease without possession having changed, the transaction should be deemed to be a single transaction instead of consisting of two transactions namely one of mortgage and the other of lease and it was further held that the amount which is shown in the lease deed to be payable to the mortgage landlord as rent, should in fact be treated as a machinery for the realization of the interest due on the mortgage. Reliance was placed on Panagand Ramaravanimgar v. Maharaja of Venkatagiri where it was laid down on page 36, column 1 as follows :‑ It is contended before this Board on behalf of the defendant‑appellant that the two deeds Exhs. A and 1 should be read together as they form parts of one transaction, the lease being in the nature of machinery for the purpose of realizing the interest due on the mortgage. Their Lordships are of opinion that these contentions on behalf of the appellant must prevail. To the same effect was the observation of the Full Bench of this Court in the case reported as Muhammad Saeed v. Abdul Alim (27 I L R 805). Our brother in Muhammad Abdullah v. Abdul Jabbar had also mentioned the case of Mian Feroze Shah v. Sohbat Khan and others and was of the opinion that this authority was on different facts and could not be of any assistance for determining the relationship of landlord and tenant between the parties. His Lordship also mentioned with approval a Division Bench case of the Patna High Court reported as Baij Nath Prasad and others v. Jang Bahadar Singh and another wherein the Controller had ordered ejectment to a similar case. The appeal had gone against the landlord and the order of the Controller was restored in second appeal. The matter came up before the High Court under writ jurisdic tion and orders of ejectment passed in favour of the landlord were set aside on the ground that the relationship between the parties was in fact that of mortgagor and mortgage and the 'Instrument of lease merely provided a machinery for the realisation of the interest due on the mortgage money. In the present case also the execution of the lease deed was simultaneous with that of the mortgage deed and there was no actual transfer of possession to the mortgagee and re transfer to the mortgagors. The amount of Rs. 90 which as payable by the mortgagor‑lessee appellants to the present respondent was, therefore, to substance, a eturn not for the use of the immovable property but for the use of the capital advanced by the respondent. The definitions of the terms "landlord" and "tenant" as given in section 2 (c) and (i) of the West Pakistan Urban Rent Restriction Ordnance, 1959 contemplate a `landlord' to whom any amount is payable as rent and a 'tenant' by whom any amount is payable as rent. In the instant case, the amount mentioned to be payable as rent was in fact payable as interest for the amount advanced and is more related to the interest due on the mortgage money than to the rent for the use of the house in dispute No doubt, parties are bound by the terms of their contracts which are not hit by the provision.; of the Contract Act but tire Court is competent to see the teal nature of the trans action between the parties and to give effect accordingly. Proviso (6) to section 92 of the Evidence Act lays down that "any fact may be proved which shows in what manner the language of a document is related to existing facts" Illustration (j) under section 92 (ibid) is in the following terms :‑ "A and B make a contract in writing .to take effect upon the happening of a certain contingency. The writing is left with B who sues A upon it. A may show the circum stances under which it was delivered." While coming to the conclusion that the amount of Rs. 90 shown in the lease deed as rent was in fact not payable as rent but as interest, no violence is being committed against the provisions of the Contract Act or against the provisions of sections 91 and 92 of the Evidence Act. In our opinion, since the amount of Rs. 90 was not payable as rent the respondent was not a "landlord" and the appellants were not "tenants" in terms of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and the Controller, therefore, had no jurisdiction to proceed with the matter and to order the ejectment of the appellants. We, therefore, allow this appeal, set aside the judgments of the learned District Judge and of the Rent Controller and order that the appli cation filed by the respondent for the ejectment of the appellants shall stand dismissed. The parties arc, however; left to bear their own costs. K. S. A. Appeal allowed. Ejectment set aside.