1993 PLP 761 (CLC)

"Who is the actual tenant out of opponents Nos.1 and 2, and who is liable to pay rent?" By order dated 14‑7‑1971, the Rent Controller decided the preliminary issue holding that the respondent No.2 was the tenant of the disputed premises. On 8‑5‑1972, the Rent Controller passed an order directing the tenant to deposit arrears of rent and monthly rent due. This order was not complied with and consequently on 19‑7‑1975, the defence of respondent No.2 was struck off. This order was challenged by all the respondents in Rent Appeal No.449 of 1975 in the Court of District Judge., Karachi. The appeal was heard by Additional District Judge, Karachi, who vide order dated 30‑4..1977, set aside the order of Rent Controller. The appellant challenged the order of the Additional District Judge, Karachi, before this Court in 11 Appeal No.172 of 1977, which was allowed vide judgment dated 15‑3‑1983. This judgment was also maintained by the Supreme Court. During the pendency of execution application filed by the appellant the Deputy Commissioner (South), Karachi, requisitioned the disputed premises under subsection (1) of section 3 of the Sindh Requisition of Immovable Property (Temporary Powers) Act, 1956, directing the appellant to permit continuance of possession of the said building by the Director of School Education, Karachi, for the housing of school of respondent No.2. This order was challenged in Constitutional Petition No.D‑173 of 1985, and was declared to have been made without lawful authority vide judgment dated 17‑10‑1985. The respondents Nos.3 to 7 then filed an application under section 47, C.P.C. in Execution Application No. 12 of 1984. On 10‑11‑1985, the Government of Sindh, through Secretary Education Department filed an application under Order I, Rule 10, C.P.C. for being joined as a party claiming to be the real tenants of the disputed premises. Both these applications were, however, dismissed. In the meantime on 24‑11‑1985, the Government of Sindh filed a suit bearing No.5455 of 1b85 against the appellant and the respondents herein. The plaint in this suit was rejected by V Senior Civil Judge (South), Karachi, on 19‑12‑1985. On 21‑12‑1985, the respondents Nos.l and 3 to 7 filed an application for inspection of the site and direction to the bailiff, stating therein that since the appellant had denied the status of respondents Nos.3 to 7 as tenants and, as such, they were not to be ejected in terms of order dated 19‑7‑1975. This application was allowed by the Rent Controller vide order dated 11‑1‑1986 in the following terms: "I, therefore, confine myself to the wordings of original orders dated 14‑7‑1971 and 19‑7‑1975 which are upheld finally by the Honourable High Court of Sindh with its kind orders dated 15‑3‑1983, and feel that the present execution is to be carried in respect of premises in possession of R.P. Rabadi, Government Boys Primary School. Issue writ of possession to the above extent on costs. This order is the subject‑matter of the present appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979.

3. I have heard Mr. Mohsin Tayeb Ali, learned counsel for the appellant and Mr. M. Shah, learned counsel for the respondents.

4. When the facts of this case are understood, the decision of the appeal presents no difficulty. It is the case of the appellant from the very outset of this litigation that the respondents Nos.3 to 7 have occupied the disputed premises unauthorisedly through respondent No.l, and they were impleaded to avoid any future legal complication. The orders dated 14‑7‑1971 and 19‑7‑1975, passed by the Rent Controller appear to me to create no difficulty. On the face of these orders the respondents contested the order of ejectment up to the disposal of II Appeal No.172 of 1977 and all of them had jointly filed Rent Appeal No.449 of 1975 in the Court of District Judge Karachi. They have assumed inconsistent positions and have tried to blow hot and cold at the same time. The stand which they have finally taken is clear from the following short order passed by my learned brother Nasir Aslam Zahid (as he then was) on 22‑1‑1991 during the course of arguments of this appeal:‑‑ "I have heard some arguments. According to Mr. Mohsin Tayebally, learned counsel for the applicants/landlords, all the 7 respondents are Government schools. According to Mr. Mohsin Tayebally, the applicants had given the premises, which is now in occupation of the respondents, initially to R.B. Rabadi Government Boys Primary School which was previously being run by K.M.C. but later on it was being run by Sindh Government. It is further informed by Mr. Mohsin Tayebally that Sindh Government have allowed other schools to be located in the premises which had been earlier rented out by applicant to R.B. Rabadi School. Mr. Abdul Waheed Siddiqui, learned counsel for respondents, states that all the 7 respondents are Government schools and in law they are not separate entities and they are part and parcel of the Sindh Government. According to Mr. Abdul Waheed Siddiqui, the ejectment application had only been filed in respect of one portion of the building in which R.B. Rabadi School is being run and in respect of the other portions of the building in which other respondents are located, neither the said ejectment application was filed nor any relief was claimed for ejectment in respect of the areas in occupation of the other respondents. It is further stated by Mr. Abdul Waheed Siddiqui that Rs. 586 per month is being paid by R.B. Rabadi.School in respect of that portion only which is in physical occupation of R.B. Rabadi School. In respect of other portions of the building which are in occupation of other respondents it is stated by Mr. Abdul Waheed Siddiqui that those portions of the building are also owned by the appellants but those portions had not been rented out by the appellants to the other respondents and in fact the other respondents were put in possession of their respective areas by R.B. Rabadi School. According to Mr. Abdul Waheed Siddiqui the other respondents can be termed as oral licensees of R.B. Rabadi School. Part heard. To come up on 24‑1‑1991."

5. The learned Rent Controller has failed to appreciate that the writ of possession was to be executed against respondent No.2 and/or any other person claiming through it. He has also lost sight‑of the fact that Order 21, Rule 103, C.P.C. provides in clear terms that all questions. arising as to title or interest in, or possession of, immovable property between an applicant under rule 97 and the opposite‑party, or between an applicant under rule 100 and the opposite‑party, shall be adjudicated upon and determined by the Court. The only directions which the learned Rent Controller could have issued, were to issue a writ of possession in respect of the building standing on Plots Nos.S‑B.4‑86 to 89 and 91, Saddar Quarters, Karachi, and if and when the execution was resisted by any person, then such a person would have moved an appropriate application to establish that such person was claiming independent rights.

6. Having regard to the above legal position, the impugned order cannot be sustained and is set aside. The Rent Controller is directed to issue writ of possession in respect of building situated on Plots Nos.S.B. 4‑86 to 89 and 91, Saddar Quarter, Karachi, and if the execution of the said writ is resisted or obstructed by respondents Nos.1 and 3 to 7 claiming in good faith to be in possession of the property on their own account, it will be open to them o move appropriate application to establish their claim, which will be disposed of in accordance with the provisions of law.

7. The appeal is accepted in the above terms, but the parties are left to bear their. own costs. It may be mentioned that the Rent Controller shall not be influenced by any observation made herein. He shall decide the case on the basis of the material available on the record and the law applicable thereto, independently of anything herein contained in this judgment. AA./A‑1081/K Appeal accepted.