1986 PLP 1986 (MLD)

Khalilur Rehman for Appellant. Karamchand R. Kingrani for Respondent. Date of hearing: 10th March, 1986. This First Rent Appeal has been filed by Abdul Rauf Bhatti, against the order, dated 23‑4‑1983, of XIIth Senior Civil Judge and Rent Controller, Karachi whereby he dismissed the rent case.

2. Briefly the facts of Rent Case No.2392/1981 filed by Abdul Rahman Kalia, are that property constructed on Plot No.NP‑7/35, known as Bulbul‑e‑Hazar Dastan Building situated at South Napier Road, Karachi was originally owned by Hap Fazaluddin, who during his life time gifted the above property to appellant by declaration on 22nd June, 1977 and since then he has become the owner of the above said property. After the death of Hap Fazaluddin there arose dispute between the appellant and other heirs. The civil suit was filed. The Additional District Judge, Karachi in Civil Miscellaneous Appeal No.105/79 is stated to have passed an order authorising the appellant to collect the rent. Appellant, therefore, by notice, dated 1‑6‑1980 informed the respondent about such orders and his right to collect the rent. He called upon respondent to pay rent of a shop from May, 1980 at the rate of Rs.80 per month and also to pay the arrears due against him.

3. Respondent in his written statement stated that he paid monthly rent up to May, 1980 and thereafter he started depositing monthly rent in Court in Miscellaneous Rent Case No.3996/1980 just to avoid dispute and safeguard his interest. He produced such receipts alongwith, the written statement.

4. Appellant Abdul Rauf Bhatti, was; examined before the Rent Controller. He in his affidavit‑in‑evidence corroborated the facts given in the rent application and also produced photostat copy of order of the IVth Additional District Judge, Karachi. The respondent Abdul Rehman Kalia in his evidence stated that late Haji Fazaluddin himself or through his manager Amin or his nephew Abdul Waheed used to collect the rent and such rent receipts were issued. He has stated that he paid rent upto May, 1980. He has also deposed that due to dispute between the legal heirs of late Haji Fazaluddin, he just to avoid the dispute and save himself, from any kind of default started depositing the rent in Court. He has admitted to have received legal notice but states that he approached the appellant and informed that he is depositing rent in Court.

5. Mr. Khalilur Rehman, Advocate for the appellant submitted that the learned Additional District Judge, while disposing of the civil appeal against refusal of temporary injunction which was filed in the suit has authorised the appellant to collect the rent, therefore, he by virtue of being owner and as well as an authorised person has right to demand rent from the tenants. It is also contended by the learned counsel that respondent is depositing rent in the name of dead person with mala fide intention. He has referred to the case reported in P L D 1985 Lah.

607. He has also referred to the case reported in 1980 S C M R 419 and submitted that even omission to mention names of landlord in Miscellaneous Rent Application can be fatal to the tenant. Mr. Khalilur Rehman has also referred to a case reported in P L D 1973 S C 214 and contended that co‑sharer can collect the rent.

6. Mr. Karam Chand R. Kingrani appearing for the respondent argued that after the death of Haji Fazaluddin, there arose a dispute between the heirs, therefore, respondent in good faith started depositing rent in Miscellaneous Rent case and has not committed any default. He has referred to the cases reported in P L D 1979 Lah. 618 and submitted that deposit in the name of deceased person cannot be fatal to the instant case. He has also referred to the case reported in 1985 C L C 2863 and submitted that on technical fault the tenant cannot be evicted. He has also referred to the case reported in 1985 C L C 1949.

7. In the present rent case appellant gave notice, dated 1‑6‑1980 Exh.B/1 to the tenants in which it is stated that one of the co‑sharers of the late Haji Abdul Rashid filed a Civil Suit No.3121/78 in the Court of IInd Senior Civil Judge, Karachi, therefore, he admittedly there exists dispute about the ownership of the property and such Civil Suit is pending. The Rent Controller or this Court cannot determine or decide the ownership while disposing of the rent case. The case of the appellant is that in Civil Suit injunction application was filed which was decided against him and he went in appeal and learned Additional District Judge authorised him to collect the rent. I have gone through the order, dated 7‑5‑1980 of the IVth Additional. District Judge who while deciding the appeal against injunction application ordered that appellant would neither transfer nor alienate the property in question and would deposit the rent in Court except to the extent of his share would be entitled to pay the due and tax proportionately from the rent amount collected. Appellant has not been authorised by this order to collect the rent from the tenants but it shows that he was collecting the rent from some other tenants and in respect of rent amount so collected this order was passed. Moreover, the respondent was not a party in these proceedings as such order of Additional District Judge is not binding on the respondent. The appellant did not apply to the Rent Controller under section 16 of the Ordinance for passing .of any tentative order. Had he done so the Rent Controller should have decided this point after holding summary inquiry as provided under section 16 (1) of the Ordinance. The respondent bona fide is paying rent in the name of late Haji. Fazaluddin, though dead. There is a dispute between the partners and it has not yet been resolved as to who is the owner and to what extent they can claim the share of the rent. The appellant has also not proved if co‑sharer authorised him to collect the rent. The definition of word ,landlord as given in section 1 of the Ordinance, is as under:‑ "1. (f) "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 matter is still under dispute and it is yet to be decided if appellant is owner of the premises and entitled to receive the full amount of rent in respect of such premises. At this stage without going into the merits about the title over the property and other circumstances, I am of the view that order of the Rent Controller dismissing the rent application is proper and calls for no interference; the appeal has no merit and is, therefore, dismissed. M.Y.H. Appeal dismissed.