P L D 1977 Karachi 460 (PLP)

Mohammad Sadik for Appellant. Aftab Alan: Kizilbash for Respondent. Date of hearing : 25th January 1977. This is a second appeal under section 15 of the West Pakistan Urban. Rent Restriction Ordinance, 1959 against the order dated 30-4‑1976 passed by tee VII Additional District Judge and Appellate Authority, Karachi, whereby the appeal of the appellant against the order of ejectment passed against him by the Controller was dismissed.

2. The controversy in this appeal relates to residential promises‑ bearing No. G/6 in building No. S. B. 6/38 VA 177 Saddar Bazar, Karachi. At present there seems to be no dispute that the premises is owned by the respondent. While the respondent/owner was away from Karachi in connection with his service, his daughter Munira Akhtar put the present appellant in occupation of the premises as a tenant for 3 months under a written rent note dated 19‑7‑1970 for a monthly rental of Rs.

60. On 26‑4.1972 the present respondent/owner filed ejectment application under section 13 of the Urban Rent Restriction Ordinance, 1959 against the present appellant on three grounds, namely : (1) that the appellant had defaulted in the payment of rent since 1‑1‑1971 ; (2) that the appellant had sublet the premises to different persons from time to time ; and (3) that the premises were required in good faith for personal occupation of the respondent.

3. The appellant resisted the action for ejectment denying the allegations of the respondent as regards all the three grounds. The appellant denied the ownership of the premises by the respondent "for want of knowledge". After framing issues and hearing the evidence of the parties, the learned Controller came to the finding on the issue of personal requirement in favour of the respondent and ordered the eviction of the appellant. Aggrieved by this decision, the appellant filed an appeal before the Appellate Authority. The learned Appellate Authority arming the finding of the Controller dismissed the appeal by the impugned order in this appeal.

4. Learned counsel for the appellant first contended that the order passed by the learned Controller was illegal and without jurisdiction inasmuch as he failed to frame and decide the preliminary issue regarding the relationship of landlord and tenant between the parties. In this con nection it may be pointed out that no such issue was included among the issue which were tried by the Controller. However, learned counsel referred me to the order dated 9‑12‑1972 on the order‑sheet of the proceedings before the Controller whereby the learned Controller refused to frame the preliminary issue as to the existence of relationship of tenant and landlord for reasons disclosed therein. It was contended by the learned counsel that the failure on the part of the Controller to frame the preliminary issue had the effect of vitiating the further proceedings, for, it is well‑established that in case the tenant denies such relationship it becomes incumbent for the Controller to decide that issue before proceeding further. I find no substance in this contention. The learned Controller refused to frame the issue as in his view it was unnecessary on account of the fact that the appellant admitted that he was the tenant of the daughter of the respondent and the respondent had pleaded that the premises were rented out on his behalf. I have perused the pleadings of the parties and do not find a specific plea as to the question of relationship of landlord and tenant in the written statement of the appellant. He had however, denied the allegation of ownership of the respondent, as stated earlier for want of knowledge. In the circumstances firstly the specific issue did not arise out of the pleadings. Be that as it may, it will amount to stretching the technicalities too far, to hold that even if indirectly and unsubstantially, a plea is raised as to the question of existence of such relationship, the Controller would be bound to decide the issue as a preliminary issue. The law was first laid downing this regard in Akhrar Ali Pervaiz v. Altaful Rehman (P L D 1963 Lah. 390) but as pointed out by me in Muhammad Zaman v. Taj Rasool (P L D 1976 gar. 202) their Lordships after holding that it was incumbent upon the Rent Controller to decide the preliminary issue with regard to the jurisdiction first did not, ipso facto, strike down the order of eviction but proceeded to examine the question whether challenge to the jurisdiction was justified or not. Having examined the question their Lordships held that the rule laid down by them was not attracted in that case as the notice under section 30, Displaced Persons (Rehabilitation and Compensation) Act, 1958 receipt of which was denied was in fact, served on the tenant. On the authority of that case therefore, it is permissible for the Appellate Court to examine the case itself if the necessary facts are already on the record. In the instant case the plea of the appellant as to the non‑existence of the relationship of landlord and tenant is founded on the fact that the appellant was inducted in the premises by Mst. Munira Akhter, the daughter of the respondent. As earlier observed the appellant at present did not seriously dispute the factum of ownership of the respondent ;and rightly so in view of the unquestioned evidence of title produced by the respondent in the shape of permanent Transfer Deed (Bah. 1).

5. This brings me to the nest and the most important contention of the learned counsel for appellant. It was contended that admittedly the premises were let out by Mst. Munira without disclosing the name of the owner and not by the respondent and therefore, the contractual Obligation for payment of rent by the appellant was to Mat. Munira. Accordingly the submission was that Mst. Munira was the landlord in relation to the premises under the contract of tenancy vis‑a‑vis the appellant and as such ‑the respondent was not the landlord within the meaning of the Ran Ordinance. Learned counsel for the respondent on the other hand, emphatically contended that the facts established on record clearly show that the premises were let out by the respondent's daughter on his behalf and therefore the respondent was entitled to receive rent as a landlord.

6. By section 2(c) of the Urban Rent Restriction Ordinance landlord" is defined as under ; "'Landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land m the manner hereinafter authorised and every person from time to time deriving title under a landlord." For the present purposes a bare reading of the aforesaid definition clause shows that in order to be the landlord a person must be entitled to receive rent whether on his own account or on behalf or for the benefit of another. Clearly therefore, Mst. Munira would be regarded as the landlord of the appellant However, the contention on behalf of the appellant was that this is sufficient to hold that the respondent even if he is the owner of the premises cannot be deemed to be landlord, for there cannot be two landlords in respect of one premises vis‑a‑vis a tenant. Reliance was placed in this regard on an observation by Fakhruddin G. Ebrahim, J. in Sulaiman Youvuf v. Edulji Dinsnaw (P L D 1976 Kar. 512), raising the question whether there can be two landlords for the tenant in that case. But facts of that case were that the appellants were sub‑tenants under the tenant of the landlord and in consequence of their failure to deposit rents under section 13(6) of the Rent Ordinance they were ordered to be ejected. The case ultimately carne before the High Court and in support of the order it was contended that the Rent Controller was justified to order deposit of the rent by sub‑tenants as for all intents and purposes they were the tenants of the landlord. The learned Judge while repelling the contention that the sub‑tenants had directly become the tenants of the landlord held that as regards them the landlord, according to the rent law was the tenant and not the landlord as is clearly spelled out by the definition of the landlord in Rent Ordinance. The observation was made in the course of the discussion by the learned Judge in the interrogatory form : "Will the sub‑tenants have two landlords ?" The facts of the case are clearly distinguishable and I am quite unable to read into the observation any meaning which has bearing upon the question ,under consideration. The next case cited by the learned counsel namely Kalsoon Akhtar v. Mohammad Yaqub (P L D 1976 Kar. 992) has no material relevance to the question for decision as it was only held in that case that the definition of the "landlord" does not insist that condition of ownership of property should be fulfilled before a person could be landlord thereof. Similarly, the third case cited by the counsel namely Amir Ali v. Muhammad Hashim (P L D 1976 Kar. 857) does not in any way advance the case of the appellant. In that case the facts were that the tenant had taken the premises on rent from one Muhammad Hashim and after he committed default in the payment of rent, the latter applied for ejectment of the tenant. 1n defence the tenant raised the plea that he was the tenant of one Abdul Samad and not of Muhammad Hashim. It was found by the Controller that Muhammad Hashim was the landlord of the tenant as Abdul Samad bad himself confirmed that the house belonged to Haider Khan, minor son of Muhammad Hashim and that it was due to friendly relations with the tenant that he had requested Muhammad Hashim to let out the house to him. On these facts it was contended that Muhammad Hashim not being the real owner could not maintain an ejectment application as landlord. The D. B. of this Court in second appeal repelling the contention held that Muhammad Hashim having rented out the premises to the tenant was competent to eject him as the landlord as he was the person for the time being entitled to receive rent in respect of the premises. There can be no quarrel with the proposition of law postulated in that case. However, the question here is contrary to the one under consideration in that case. The question here is whether the real owner in case another person lets out the premises on his behalf can exercise his rights as the landlord under the Rent Ordinance.

7. Now there is no dispute that Mil. Munira Akhter would be the landlord within the meaning of the term as defined in Rent Ordinance. But the only contention is that in that case the owner of the premises namely the respondent cannot be deemed to be the landlord. The definition oft the term "landlord" makes it abundantly clear that the essential characteristic of the landlord as defined is that he should be a person entitled to receive rent, whether on his own account or on behalf of another. Mst. Munira was entitled to receive rent by virtue of the tenancy agreement but having regard to the established facts that she was not the owner of the premises, it can hardly be disputed that she was entitled to receive rent on behalf of the respondent. But the contention of the learned counsel for the appellant was that the rent note does not disclose the fact that Mst. Munira was not the owner or that she was entering into the tenancy agreement on behalf of her father. In my view this circumstance is entirely immaterial. Section 231 of the Contract Act provides that if an agent makes a contract with a person who neither knows, nor has reason to suspect, that he is an agent, his principal may require the performance of the contract; but the other contracting party has, as against the principal, the same rights he would have had as against the agent if the agent had been principal. Similarly, section 232 of the Contract Act provides that where one man makes a contract with another, neither knowing nor having reasonable ground to suspect that the order is an agent, the principal, if he requires the performance of the contract, can only obtain such performance subject to the rights and obligations subsisting between agent and other party to the contract. Thus it is obvious that an undisclosed principal is not denuded of the power to enforce the contract merely because other contracting party was not aware that the contract was entered into by his agent 'The only effect of such a situation is that as against the undisclosed principal, the third party shall have the same rights which he would have, against the agent if the agent had been the principal. The facts of the present case are that although the appellant may not have known that Mst. Munira Akhter was acting as the agent of her father, it is clear from her evidence that she had entered into the agreement of tenancy on behalf of her father which fact was communicated to the respondent. She has however, admitted in her statement that she entered into the agreement without his permission but she asserted that she informed him about it subsequently. The respondent has accepted this position and treated the appellant as tenant by filing application under section 13 for his eviction. The initial absence of permission by the respondent i9 therefore, immaterial as he has adopted the F contract by ratification as permitted by section 196 of the Contract Act The position that emerges therefore, is that at the date of institution of the proceedings, the contract of tenancy was proved to have been subsisting for the benefit of the respondent. Section 8 of the Transfer of Property Act, ‑seems to imply that the right to receive rents and profits of immovable property is an ordinary incident of ownership. The owner of the property therefore, in such a case, would invariably be entitled to receive the rent o the premises. It would he absurd to hold, that only because the contract of tenancy was entered into through an agent, the owner would be divested of rights normally flowing from factum of ownership. In view of this clear position the owner of the property would obviously be the landlord within the meaning of the term as defined in the Rent Ordinance. I am quite unable to understand why there cannot be two landlords in respect of the same premises, the one who enters into contract of tenancy on behalf of another and the real beneficiary of the contract. In the first case the contracting party would be entitled to receive rent by virtue of stipulations of the contract and the other by his own right to receive the rents as an owner. To hold otherwise would, in my opinion, lead to irrational results. It is an established rule of interpretation that the Court is to adopt a construction which is in harmony with the other provisions of the statute and which does not result in reducing any other provision of statute redundant. The construction placed by me on the interpretation of the provisions defining "landlord" is in consonance with the provisions of section 13 of the Rent Ordinance. Section 13(3) of the said Ordinance gives the landlord the right to obtain possession of the building in case he requires it for his bona fide personal use or for the use of his male children. This provision was construed in Dr. Miss Ali Muhammad v. Muhammad Shafique (PLD1971SC494) to mean the use of the trust in which the building vested and not the use of the trustee himself although the trustee fell within the definition of the landlord. By parity of reasoning therefore, in the present case even if Mst. Munira had applied for possession on the ground of personal age, she would have been required to establish the bona fide requirement of the premises by the real owner. If therefore, landlord means in this case only Mst. Munira, since her personal requirement would be irrelevant, the strict construction of subsection (3) of section 13 of the Ordinance would now allow the real owner to obtain possession on that ground. It would be absurd to hold that the Legislature intended in case where the premises are let out by the person other than the owner as the landlord, the possession can be obtained on proof of the personal requirement of such other person.

8. In view of the above discussion, T have therefore, come to the' conclusion that the respondent is the landlord of the premises within the meaning of the Rent Ordinance and as such could maintain the evictions, proceedings against the appellant.

9. The last contention of the learned counsel for the appellant wag that the finding on the issue of personal requirement was not justified on tile evidence led at the hearing. In this regard the only submission was that the respondent being a retired accountant of the Military service is not expected to utilize the premises consisting of one room for his personal occupation. In the first place this being a question of fact and there being a concurrent finding of the two Courts below, it is not open to the appellant to question this finding at this stage. Secondly it is admitted that the appellant is a businessman and has been using the premises as a house alongwith other accommodation. The contention therefore, has no substance and no fault can be found with the finding merely on abstract and hypothetical submission. Furthermore in the cross‑examination of the respondent, the appellant himself has brought out the fact that the respondent used to reside in the disputed premises prior to his transfer to Dacca.

10. For the foregoing reasons, I find no merit in this appeal and accordingly dismiss the same with costs. S. A. H Appeal dismissed,.