1989 PLP 710 (CLC)

(1) Whether there exists the relationship of landlord and tenant between the parties? (2) Whether the rent application is not maintainable ? The case was then adjourned to 6‑4‑1976 for evidence on preliminary issues. The appellant No.2 Yousuf Ali filed his affidavit in‑evidence who was cross‑examined‑and on behalf of the respondents one of their directors Badruddin filed his affidavit‑in‑evidence and was also cross‑examined. Mr. Suleman Kassim has further pointed out that the impugned order of the Rent Controller shows that the three issues were settled which read as under:‑ (1) Whether the relationship of landlord and tenant exists between the parties ? (2) Whether the opponent has committed default in payment of rent ? (3) What should the order be ? The learned counsel for the appellants has argued that the issue No,2 in the order pertaining to the default was not amongst the preliminary issues framed earlier on which the parties had led their evidence and, therefore, the present appellants/ landlords did not bring any evidence on record on the said issue. His contention is that affidavit‑in‑evidence was only with regard to the maintainability of rent application and the relationship of landlord and tenant. He has further contended that for the said reasons the findings of the Rent Controller on the issue No.2 cannot be sustained and, is liable to be set aside. Mr. Maqbool Baqar, learned counsel for the respondents has not been able to real the above said contention of the learned counsel for the appellants but has confined his argument with regard, to the question of maintainability and relationship only. The pleadings of the parties show that one of the grounds taken in the ejectment application pertains to the alleged default in payment of rent committed by the respondents but since specific preliminary issues were framed with regard to the maintainability of application and relationship. the Rent Controller ought to have given her findings with regard to the said preliminary issues and should have dismissed the rent application on these two issues in case she had arrived at the conclusion that there was no relationship of landlord and tenant and that the rent application was not maintainable. But in ease the findings of the Rent Controller were otherwise then an opportunity should have been given to the parties to bring evidence on other issues. I. would, therefore, set aside the findings of the Rent Controller on issue No.2 pertaining to the default. Dealing with the issue with regard to relationship of landlord and tenant the order of the Rent Controller shows that she has held that there was no relationship of landlord and tenant for the reason that no notice as required under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance, 1959, was served on the respondents. Mr. Suleman Kassim, has argued that in the first instance the said provision is not applicable to the present case. He has submitted that as pleaded by the respondents the premises in dispute was originally owned by Ibrahim jee and Fida Hussain M. Lotia and that the present two appellants are their sons. The said Ibrahim jee and Fida Hussain M. Lotia both expired in the year 1960 and the property devolved upon the present appellants. The provisions of section 13‑A were incorporated in the Rent Ordinance by section 6 of the West Pakistan Urban Rent Restriction (Amendment) Act, 1965. Thus, the said section 13‑A will not be retrospective in operation. Mr. Suleman Kassim has further argued that since the original owner had died in 1960 and that admittedly ever since then the rent was being paid by the respondents to Yousuf Ali the present appellant No.2, the relationship of landlord and tenant stands established. He has pointed out to the cross‑examination of Badruddin the Director of the respondents. It will be advantageous to reproduce the same which reads:‑ "I see photo copy of Annexure 'A' (Rent Receipt) and say that this type of receipt was issued by the landlord. Exhibit A bears the signature of applicant Yousuf Ali." From this he has argued that admittedly the rent was being paid to the appellant Yousuf Ali from the very beginning which fact is further supported by the evidence of the appellant Yousuf Ali also. Yousuf Ali has specifically stated in his affidavit‑in‑evidence that the respondents always paid the rent to them and dealt with them in the capacity of tenant. The respondents have not cross‑examined the appellant Yousuf Ali on this point. Mr. Suleman Kassim has relied on the case of M/s Interhome Limited v. Major (Retd) Nisar Ahmad Khan 1980 SCMR 958 wherein their Lordship have held:‑ "Again, it was urged that the lessor was the late Wing Commander Abdul Jabbar Khan who resided in a separate house before his death and, therefore, the respondent could not seek ejectment on the ground of his personal requirement. This contention is also misconceived as the petitioner‑Company tendered rent to the respondent from January, 1973, onwards and. therefore, it had accepted the respondent as the landlord, The ejectment application was filed after the acceptance of the rent. and hence the respondent could seek ejectment of the petitioner Company for his own personal use. He has also relied on the case of Pakistan Burmah Shell Limited v. Additional District Judge, Rawalpindi and others 1987 SCMR 1288 wherein their lordships have held:‑ "

9. We have gone through the record and the judgments of the Courts below, and we do not agree with the arguments of the learned counsel. There is ample evidence on the record to show that the appellant had the requisite information that after the death of the original landlord namely Brig. K.M. Idris, his widow Begum Ghousun Nisa had been receiving the rent, and on her death, respondent No.8, son of late Brig. K.M. Idris produced a succession certificate to the effect that he was entitled to receive the arrears of rent and monthly rent in future Letters, plead on the record, also reveal that there was no manner of doubt regarding the entitlement of respondent No.8 to receive the rent. Assuming for the sake of argument that there was some doubt in the mind of the appellant regarding the entitlement of respondent No.8 to receive the rent, the appellant, as rightly held by the Court below, could have deposited the rent in the Court of the learned Rent Controller. In this regard the observation of the learned District Judge made in paragraph 6 of his order dated 16‑2‑1986 as reproduced in paragraph 7 above is quite pertinent." He has also placed reliance on the case of Muhammad Ali and another v. Jamil Ahmaa PLD 1976 Kar. 820 in which Zakaullah Lodhi, J. (as he then was), relying on the case of Muhammad Hussain v. Amtul Batool 1970 SCMR 86 has held:‑ "In this case their Lordships of Supreme Court have held that section 13‑A of the Ordinance VI of 1959 does not have retrospective effect. In the circumstances 1 am of the view that it was not incumbent upon the appellants to serve the respondent with a notice under section 13‑A of the Ordinance VI of 1959." From the above discussion it is obvious that the provisions of section 13‑A of the Ordinance do not have retrospective effect and that in the instant case the tenants having been dealing with the son of the deceased landlord for more then 15 years cannot now turn round and plead that there was no relationship of landlord and tenant. In fact he had by his conduct and overt act conceded to the appellants being the landlord. I, would, therefore, hold that the relationship of landlord and tenant did exist between the parties ever since the death of the original owners. Mr. Maqbool Baqar, learned counsel for the respondent repelling the above contention of the appellants has placed reliance on the case of Shaikh Muhammad Hussain v. Mst. Mubina Begum 1979 CLC 42 and the case of Mrs. Mariam Fernandes v. The State Life Insurance Corporation of Pakistan PLD 1981 Kar.

591. He has argued that the service of notice under section 13‑A was a mandatory requirement and no relationship of landlord and tenant would be established in the absence of such notice. This contention of the learned counsel cannot be accepted in the present case as in the above two decisions cited by him the change of ownership had occurred after the promulgation of section 13‑A , whereas in the present case the same had occurred in the year 1960 and prior to promulgation of section 13‑ A . It may further be pointed out that the learned Rent Controller has not given any findings on the preliminary issue of maintainability nor has framed any issue with regard to the present application being barred under section 69 of the Partnership Act.. The upshot of the above discussion is that the orders of the learned Rent Controller are set aside on all the issues while the issue of relationship of landlord and tenant is answered in affirmative in favour of the appellants and the case is remanded to the Rent Controller with the directions to allow the parties to lead evidence on the other issues and decide the same after hearing them. However, in the circumstances of the case there will be no order as to costs. H.B.T./T‑48/K Case remanded.