1986 PLP 1760 (CLC)

(11) The learned Rent Controller has erred in law in ordering the eviction of the appellant as the order is based on mis-appreciation of legal position and, therefore, liable to be set aside. Mr. Khalid M. Ishaque, the learned counsel for the respondent, has submitted that the application was competent and the order is in accordance with the evidence on record. Reverting to the first contention of the learned counsel for the appellant that the application was incompetent. He has contended that he is not the owner of the premises in dispute, as such the application was incompetent. On the other hand Mr. Khalid M. Ishaque has submitted that the appellant was inducted by the respondent and the rent was also received by the respondent. No doubt the property stand in the name of the sons of the respondent who are dependent upon him. In this view of the matter the application was competent. The respondent was in employment of Government of Sind. He was residing in official residence bearing No. C‑6, 2nd Floor, Hassan Square, Gulshan‑e‑Iqbal, Karachi. He was retired from service with effect from 4‑6‑1984 on superannuation pension. The Government of Sind issued a notice to him to vacate the above mentioned flat forthwith but on his failure to vacate, he would be liable to penal action. On retirement, the respondent got notice issued on 5‑9‑1984 which received by the appellant on 9‑9‑1984 asking him to vacate the premises in accordance with section 14(i) of the Ordinance. On his failure to vacate the premises, the respondent filed Eviction Application No. 307 of 1985 (its new No. 3845/84). The appellant resisted the application. Section 14(i) of the Ordinance provides a special machinery for enabling a widow or a minor whose both parents are dead or a retired employee due to retire within the next six months or be retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years by notice inform the tenant that he needs the building for the personal use and require him to deliver the vacant possession of the building within such time as may be specified in the notice not being earlier than two months from the receipt thereof. The section appears to furnish almost a complete code for that purpose. The section contains a non‑abstinent clause, which states that the provisions of section 14 shall have effect notwithstanding anything contained in the Ordinance or any other law for the time being in force. Subsections (1) to (3) of section 14 of the Ordinance lay down the special procedure for the disposal of the application, which is almost summary in character for the disposal of applications made by the specified persons. Subsection (3) of section 21 of the Ordinance makes the order of the Controller final subject only to the power of the High Court under subsection (3) may for the purpose of satisfying itself that an order made by the Controller under subsection (3) of section 14 is according to law, call for the record and peruse the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either itself or by the Controller, make an appropriate order. Under proviso to subsection (2) , no injunction shall be granted if the appeal has been preferred from the order under section

14. The first question, which arises for consideration in this appeal is whether the respondent was entitled to get possession of the premises in dispute under section 14 of the Ordinance at all. This contention is raised by the appellant on the ground that the premises in question which stood in the name of his children actually belonged to them and section 14 was applicable only to cases where the premises in question truly belongs to the specified persons and is standing in his own name. It is urged on behalf of the appellant that since the finding of. the Controller is that the premises in question belonged to his sons, the eviction application filed by the respondent was to be dismissed. On the other hand it is urged on behalf of the respondent that the question of title to the property in question is foreign to the scope of a proceeding before the Controller who has to dispose of the matter in a summary manner and the specified persons acquire a right to resort to the provisions of section 14 by any of the specified grounds. It is urged that since in this case the respondent retired from service, which satisfies the requirement of section 14(1) of the Ordinance, no enquiry is called for in the question of title. In the alternative, it is urged on behalf of the respondent that even treating that the issue relating to title can be raised, the respondent has established that the premises in question owned by the respondent. It is further urged that the finding of the Controller supports the plea. In the circumstances of this case I feel that it is not necessary to go into question whether the question of title to the premises is relevant at all and if it is all relevant, whether it can be gone into by the Controller (See 1985 CLC 882). The respondent in para. 2 of the eviction application stated that the appellant is tenant of the respondent in respect of the premises in dispute and is paying rent thereof to the respondent at the rate of Rs.600 per month. The appellant in his cross‑examination admitted that "I am paying the rent to Mr. Ghulam Qadir/applicant. It is correct that I paid rent for the month of August, 1984 to applicant through cheque and thereafter also". It is pertinent to note that the appellant denied the contents of para. 2 of the eviction application including the payment of rent through cheque in the month of August, 1984 but admitted in his cross‑examination that he was inducted by the respondent and he has been paying rent to him. I shall assume for the purposes of this appeal that as contended on behalf of the appellant a specified person can succeed, where the building stand in his name only if he establishes that its true owner and the building is only nominally standing in the name of his wife or dependent child as the case may be. In the instant case it is to be noted that the respondent stated in his eviction application that the building belongs to his minor sons. Even this fact will not help the appellant. The respondent retired from service and he was asked to vacate official accommodation and he himself does not own other building, his sons are residing with him and they are depending upon him. He manages the property. It is not denied that the appellant has been paying rent to him. He was, therefore, entitled to file the application as he otherwise satisfied the requirement of law. The respondent could avail of the benefit of the provisions of section 14 and the notice issued to the respondent under section 14(1) of the Ordinance, which he was entitled to issue the object of which was only to inform the tenant. In the case of Moin Afridi v. Capt. M.R. Choudhry 1982 C L C 1116 my brother Naimuddin, J. held as follows:‑ "Even otherwise, if the respondent was not the owner of the premises, he was authorised and entitled to receive the rent which fact cannot be disputed for the appellant had been paying rent to him by cheques drawn in his name. Accordingly, within the meaning of section 2, clause (f) of the Ordinance the respondent was the landlord." The definition of the word 'landlord' given in clause (f) of section 2 of the Ordinance reads as under:‑ Landlord' means 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. The definition of tile word' 'landlord' given in clause (c) of the section 2 of the repealed Ordinance reads 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 subjects any building or rented land in the manner hereinafter authorised and every person from time to time deriving title under a landlord." In Muhammad Sharif v. Sh. Muhammad Amin P L D 1977 Lah. 516 in which Mr. Mzal Zullah, J. (as his Lordship then was) after quoting the above definition of the term 'landlord' observed as follows:‑ "It is obvious that the expressions "on behalf or for the benefit of" are very wide. There is no such rider in the statute that the entitlement of any person to receive rent on behalf of another person should be based on any writing. It is necessary to point out that wherever formalization through writing was felt necessary by the law‑‑maker, it was so provided. In section 2(i) (definition of 'tenant') it is provided that a person placed in occupation of a property by its tenant, "unless with the consent in writing of the landlord..." would not be included in the definition of 'tenant'. It is also to be observed that while the extended phrases used in the definition of 'tenant' go up to the limit of including a person' by or on whose account rent is payable for a property in this category the provision in the definition of 'landlord' has gone further to include the extending provision, namely, "whether on his own account or on behalf or for the benefit of any other person. "The case‑law shows that this provision has been given wide interpretation and sometimes even servants receiving rent on behalf of landlords and owners have been treated as landlords by virtue of the definition. It is accordingly held that the respondent, by virtue of the definition, has rightly been treated as landlord and the question of relationship of landlord and tenant has correctly been determined." In the above case, the respondent /landlord was the husband off the owner of the property who had been realising the rent from the appellant//tenant for a number of years and used to issue rent receipts on behalf of his wife, but ubsequently he started issuing rent receipts in his own name. It was held that he was a landlord within the meaning of above clause (c) of section 2 of the repealed Ordinance. In Muhammad Ali v. Haji Abdul Rehman and others 1990 SCMR 29 the Hon'ble Supreme Court while dismissing petition for leave to appeal against the dismissal of the second appeal by learned Single Judge of the Baluchistan High Court, observed as follows:‑ "Regarding the second point which undoubtedly is a technical one, it needs to be observed that in addition to the considerations which weighed with the learned lower appellate Courts, it cannot be ignored that the definition of landlord contained in section 2(c) of the Ordinance is very wide. An owner who is entitled to receive rent would undoubtedly be a landlord under the said Ordinance, but a person mentioned in the definition who is competent to receive rent on behalf or for the benefit, of the aforementioned landlord would also be the landlord. There is a peculiar feature of this case. On the petitioner's objection that the owners were not the landlord their application was earlier dismissed as incompetent. It cannot be said that this approach, in the first round of litigation, regarding definition of landlord, was correct. The respondent then filed the eviction application. He was constrained to do 4o notwithstanding the fact that as already noted, lie had only signed the lease‑deed on behalf of his sons. It needs to be mentioned at this stage that in his deposition as well, the respondent had stated that he was recovering the rent from the present petitioner on behalf of his sons. In this background if the respondent relied upon the necessary sanction which was obtained by his sons, the owners of the property in their own name, this would not mean a contravention of the provisions of the Ordinance contained in section 13(2)(vi) read with section 2(c), as analysed above. The apprehension of the petitioner expressed by his learned counsel that in case of default on the part of the respondent in erecting the building, he would not be protected under section 13(5‑B) of the Ordinance, is unfounded. The protections in case of default would undoubtedly be available to him. There is no force in the second contention of the learned counsel either." I am in respectful agreement with the above decisions for the reasons given by their Lordships in the above judgments and as such I am of the opinion that the order, dated 7‑9‑1985 does not call for my interference. Mr. Rao M. Shakir Naqshbandi the learned counsel for the appellant has contended that words "personal use" are defined in section 2(g) of the Ordinance and in this way the respondent cannot file application under section 14(1) of the Ordinance as he is not the owner of the premises in dispute. I am of the view that section 14(1) begins with the words "notwithstanding anything contained in this Ordinance or any other law for the time being in force." Any attempt to import the provisions of section 2(g) of the Ordinance for the interpretation would seem to be out of place. Section 14 is a self‑contained section and it is wholly unnecessary to go outside section 14 for determining whether personal ease means the use of the premises by the owner thereof or his wife (or husband), son or daughter. It clearly provides that a right to recovery possession of the premises accrues to certain specified persons if the requisite conditions are satisfied. The contention is devoid of force. In the result, the appeal was dismissed in limine with no order as to costs by the short order, dated 10‑lo‑1985 and these are the reasons for the same. The appellant was allowed four months' time to vacate the premises from 10‑10‑1985 provided he continues to pay rent. H. B. T. Appeal dismissed.