P L D 1957 (W (PLP)

MUNSHI, J.

Respondent No. 1 has a bungalow, situated in Pakistan Employees Co-operative Housing Society Ltd., Karachi, which while it was still under construction, he, by an agreement dated 6th 'November 1953, leased out to the petitioner, one of the terms of the said agreement being that the tenancy was to begin from 1st December 1953. The rent fixed was Rs. 300 per month. Respondent No. 1 was to complete the bungalow by 5th January 1954. This, however he could not do. He therefore wrote a letter to the petitioner admitting his inability to complete the construction, and at the same time informing him that the rent of the house would start front 1st March 1954, instead of 1st December 1953, as was originally agreed. In this letter he undertook to complete the construction within 15 days. He however failed to complete the construction during the stipulated period. The petitioner therefore on 30th June 1954, made an application to Rent Controller, Karachi under section 4 of Karachi Rent Restriction Act of 1953 for fixation of fair rent of this bungalow. One of the objections raised by respondent No. 1 was that it was time-barred, and as such the Rent Controller had no jurisdiction to determine the fair rent of the premises The Rent Controller rejected the objection, and by his order dated 30th January 1955, decided the question of limitation in favour of the petitioner. Having disposed of the question of limitation, the Rent Controller after recording evidence, fixed Rs. 187-8-0 as fair rent of the premises. Against this order, respondent No. 1 went in revision before the Chief Judge, Small Causes Court, Karachi. The learned Chief judge by his order dated 11th November 1955 held that the applica tion for fixation of fair rent was time-barred and therefore the Rent Controller had no jurisdiction to determine the fair rent. It is against this order that the present petition has been filed. We have heard the learned counsel on either side and we have come to the conclusion that this petition must be allowed and the order of the Chief Judge, quashed. The order of the learned Chief Judge, Small Causes Court is obviously vitiated by an error apparent on the face of record. It is clear from clause 6 of the agreement that although the petitioner occupied the house in November 1953, his tenancy was to start from 1st December 1953. This was due to the fact that the building which had not been completely constructed, was expected to be so by 1st December 1953. But, as it could not be completed by 1st December 1953 respondent No. 1 himself wrote a letter to the petitioner that since he had not been able to complete the construction by 1st December 1953, he would charge the rent from 1st March 1954, instead of 1st December 1953. The provisions of section 4 of the Act show that the application for fixation of fair rent is to be made by a landlord or by a tenant. Section 2 (7) of the Act which defines the term tenant, reads as under :- "'tenant' means any person by whom or on whose account rent is payable for any premises and includes every person from time to time deriving title under a tenant and also every person remaining in possession of the premises leased to him after the determination of the lease with or without the consent of the landlord". Thus one becomes tenant only when he is liable to pay rent. The mere fact of physical possession is therefore im-material when deciding the question of tenancy for premises can be occupied by a licensee or even by a trespasser, Proviso 1 to section 4 of the Rent Restriction Act which relates to fixation of fair rent, says that the Rent Controller should not entertain any application, or take any action of his own motion for determining the fair rent after a lapse of a period of 4 months next after the date on which the premises are first occupied. The learned counsel for respondent No. 1 contended that the words 'first occupied' did not necessarily refer to tenants. According to him these words refer to that person who has occupied the premises first, be he a tenant, a landlord, a licensee or even a trespasser. We however find it impossible to accept this view. The interpretation which the learned counsel wants the Court to put upon the words 'first occupied' if accepted, would lead to absurd results and defeat the very object with which the Act was passed, for in that case an unscrupulous landlord has simply to occupy his house for 4 months before letting out the same on rent. Section 4. as said above provides for an application by a tenant and we know that tenant is one by whom rent is payable. Surely rent is not payable by a landlord, a licensee or a trespasser. It is therefore clear that the period of 4 months starts from the date the premises are first occupied by a person as tenant It is by now admitted that the tenancy was to start from 1st March 1954 when the rent was payable. The application for fixation of rent was made: on 30th June 1954. It was obviously within 4 months and therefore within time. Thus it is clear that the finding of the learned Chief Judge, Small Causes Court, on the question of limitation is based on an error of law which is apparent on the face of record. The error is no doubt material. The whole order of the learned Judge is practically based on this point. We therefore direct that the writ of certiorari be issued quashing the order passed by the learned Chief Judge of the Small Causes Court on 11th November 1955. A. H. Petition allowed.