2005 PLP 1106 (YLR)

On 20-2-1993, Mst. Rakia Dada let out her town house No.F-1803, Block-5, Clifton Karachi, (hereinafter referred to as the house ) to Ghulam Muhammad Rajput at the rate of Rs.10,000 per month. The tenancy was agreed to be for the period of seven months. The tenant paid entire rent of seven months in advance besides security deposit Rs.10,

000. It was also a term of the tenancy agreement that the tenant shall hand over the vacant association of the house on expiry of the seven months.

2. It will be relevant to mention here that after the tenancy agreement dated 1-2-1993 Mst. Rakia Dada the owner also executed an agreement of sale in favour of Ghulam Muhammad Rajput on the same day viz. 1-2-1993 agreeing thereby to sell the house to him for Rs.12,00,000, out of which Rs.70,000 being the part payment were paid by the vendee to the vendor and the balance was to be paid at the time of signing the transfer documents in K.D.A. Office. The possession of the house was to be delivered to the vendee together with all documents on full and final payment on or before 20-9-1993.

3. On 19-12-2000 Ghulam Muhammad Rajput expired and the house remained in possession of his two sons, namely Tanveer Rajput and Zubair Rajput. On 26-4-2001, the landlady Mst. Rakia Dada, through her attorney Muhammad Arif, filed Rent Case No.8084/2001 in the Court of III Senior Civil Judge, (South) Karachi for ejectment of the occupants of the house pleading that after expiry of seven months, the lease period of the house tenant Ghulam Muhammad Rajput neither vacated the house nor paid authority nor he inducted his two sons and other members of his family in the house without consent or intimation to the landlady or her authorized agent and as such the house was sublet by him. She also alleged that petitioners/occupants had damaged the house by bringing undue alterations and additions in it.

4. The petitioners/respondents in rent case pleaded that after expiry of seven months the period of tenancy, their father Ghulam Muhammad Rajput approached the landlady/owner of the house for completing the part of the contract of sale but she failed to do so till 19-12-2000, when the latter died due to heart attack. They further pleaded that they were occupying the house in pursuance of sale agreement and not by virtue of tenancy agreement and were prepared to perform their apart of contract of sale. They also stated that since the owner of the house was not prepared to perform the part of her contract they had filed the suit for specific performance of contract and permanent injunction in the High Court of Sindh (Suit No.195/2002), which was later on transferred to second Senior Civil Judge, Karachi (South) where No.1772/2002 was assigned to it.

5. The respondent No.1, the landlady, filed an application was tentative rent order under section 16(1) of Sindh Rented Premises Ordinance, 1979 and the learned Rent Controller passed order, dated 20-3-2002 directing thereby the petitioners/opponents to deposit the arrears of rent for three years preceding the institution of rent case within 45 days and continue depositing the future monthly rent at the rate of Rs.10,000 per month or on or before 10th of each succeeding calandar month. As the opponents petitioners did not comply with the order their defence was struck off on 31-5-2002 directing them to hand over the vacant possession of the house to the landlady within 60 days.

6. Appeal against the ejectment order was dismissed by the learned IIIrd Additional District Judge, Karachi (South) on 24-2-2003. Both of the orders have been assailed through present Constitutional petition.

7. The petitioners learned Advocate raised two objections against the impugned orders. His first objection was that despite denial of the relationship of landlady and tenant by the petitioners the learned Rent Controller did not frame preliminary issue on that point ignoring the mandatory requirement of the law to determine the question of relationship before proceedings to pass order under section 16(1), Sindh Rented Premises Ordinance, 1979. The second objection of the learned counsel was that even if it is assumed for the sake of arguments that the petitioners had become statutory tenants in respect of the house still they were not liable to pay the entire arrears of the rent as the arrears. If any, against their father was to be paid by all of his legal heirs and not only the petitioners. In support of this contention, the learned Advocate referred to the decision of Single Judge of this Court reported in Safdar Arshad and 5 others v. Mst. Farukh Nisa PLD 1985 Kar.

633. He further contended that the tentative rent order directing the petitioners only to deposit the arrears of rent against their father was a defective order, therefore, the non-compliance thereof justified the striking off their (petitioners) defence. On this point he referred to the decision of this Court reported in Muhammad Aslam v. Pakistan Steel and another 1990 CLC 849 by the pronouncement of the ejectment ordered on account of non-compliance of tentative rent order was set aside for defect in the order passed under section 16(1) of the Sindh Rented Premises Ordinance and the case remanded to the Rent Controller for deciding application under section 16(1) afresh.

8. The learned Advocate representing the respondent No.1 defended the order of the Rent Controller and the Additional District Judge contending that the objection raised by the petitioner s learned Advocate are fanciful and without any substance. He argued that framing of issue of relationship becomes essential in case of a genuine dispute and not on the basis of an artificial and baseless plea. He further argued that in the present case the agreement of sale dated 1-2-1993 itself contains that possession was never handed over to the vendee/agreement holder. The agreement further contained that Ghulam Muhammad Rajput, the father of the petitioners, was inducted in the house as tenant. The learned counsel, further submitted that after expiry of seven months the initial period of tenancy, the possession of Ghulam Muhammad Rajput was in continuation of the tenancy and not as a vendee/agreement holder. Therefore, he continued to be tenant in respect of the house in view of the definition of tenant under section 2j(i). After his demise, the two petitioners became tenants in respect of the house being heirs in occupation of the premises under section 2j(i) which treats acknowledge as tenants only those heirs of the tenant who are in occupation of the premises after her death. For appreciation of the first objection raised by the petitioners learned Advocate regulating the relationship and preliminary issue. It will be appropriate to reproduce and examine the definition of tenant as given in section 2(j)(i)(a) of Sindh Rented Premises Ordinance, 1979. It reads as under:

Section 2(j). tenant means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:

(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy. (ii) heirs of the tenant in possession of occupation of the premises after the death of the tenant.

9. Undisputedly late Ghulam Muhammad Rajput entered the house as tenant under the tenancy agreement executed on 1-2-1993. Although the agreement was for seven months but the tenant contention to be in possession of the house after expiry of the tenancy period, therefore, he was surely a tenant under clause (i) of section 2(j). His status could not and did not convert automatically as occupant in capacity of purchaser agreement holder as the agreement of sale itself contains that possession shall be delivered to the vendee against full and final payment of the price which even the petitioners do not claim to have been made. The petitioners who came into possession of the house after the death of tenant Ghulam Muhammad Rajput became statutory tenants in respect of the house under clause (ii) of section 2(j).

10. In the circumstances, the pleadings of the parties and the two agreements dated 1-2-1993 (tenancy agreement and agreement of sale) sufficiently and clearly establish the existence of relationship, therefore, the learned Rent Controller rightly did not consider it necessary to frame an issue regarding relationship between the parties and record evidence thereon. When the denial of relationship appears to be frivolous and with ulterior motives to prolong the proceedings and the existence of relationship is evident from the material on record, no formal issue regarding relationship of landlord and tenant and recording of evidence thereon is necessary. The view gets support from pronouncement reported in Q. Qureshi v. Sardar Ranjhay Khan Farooq 1980 CLC Lah. 1457.

11. The contention of learned counsel for the petitioners about recovery of the arrears against Ghulam Muhammad from his estate is also without substance. For better appreciation of the objection it will be appropriate to examine section 16(i) of Sindh Rented Premises Ordinance which reads as under:

16(i): Arrears of rent:

Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in his behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.

12. A bare look at the subsection leaves no room for confusion that the Rent Controller can direct the tenant to deposit the arrears of rent within such period as he may fix and further direct him to deposit monthly rent regularly. Thus the scope with the Rent Controller under the provision is to the extent of tenant and not any person other than the tenant. As discussed above, the petitioners are the tenants therefore direction issued to them for payment of the arrears and future rent is surely in accordance with the scheme of section 16(1) of Sindh Rented Premises Ordinance. E

13. The tenancy of the petitioner is not independent of the tenancy of their father Ghulam Muhammad Rajput. It is linked with and dependent upon it. They became tenants under the statute for being heirs of the tenant in possession of the demised premises at the time of his death. They derived title to the tenancy from the deceased. On succeeding to the tenancy of the deceased they definitely succeeded to the default also and as such were bound to the default committed by their father Ghulam Muhammad Rajput. It was held by the Hon ble apex Court in Muhammad Azim and others v. Shaikh Muhammad Nawaz and others PLD 1966 SC 182 that the children deriving their right from the father would be affected by the default committed by him even if proceedings for ejectment had started after his demise. This was clarified by his Lordship Mr. Justice B.Z. Kaikaus in his separate note at page 187 of the judgment (supra) placitum D . His Lordship observed as follows:

E If the children derived their right from the father then they would be affected by the default committed by him even though proceedings for ejectment had not started in his lifetime. On the other hand if they do not derive their title from the father their right would not be affected by the fact that proceedings for ejectment had started against the father for in that case those proceedings would be proceedings against the father personally and would come to an end by his death. In the light of the above pronouncement of the Hon ble apex Court, the judgment of single Bench to by the petitioners learned Advocate is not helpful to him.

14. If it is considered for a moment, for the sake of arguments, that the arrears against Ghulam Muhammad Rajput are not recoverable from the petitioners then also they were required to deposit the arrears relating to the period of their tenancy and the future rent specially when there was no Governors (sic) rem. They even did not deposit the monthly rent therefore, their defence as tenants was liable to be struck off under section 15(1) Sindh Rented Premises Ordinance the learned Rent Controller competent to pass order for payment of arrears and also for deposit of the current and future rent. In some orders the direction is only in respect of arrears or the future rent and some orders carry in them both of the directions one in respect of arrears, and the other in respected the future monthly rent. Unless the order of the Rent Controller without jurisdiction it would not be illegal to its ensurety for being defective party. In the instant case, as held above, the Rent Controller was competent to pass the order in respect of the arrears of future rent. If it is assumed that the direction relating to the arrears for the period of the tenancy of Ghulam Muhammad Rajput was to be implemented against all the heirs of Ghulam Muhammad Rajput then also the other part of the order particularly relating to the future monthly rent was essentially to be complied with by the petitioners. Non-compliance of that part of the order fully warranted the striking off their defence. D.B. decision of this Court reported in Ali Jan v. Shujauddin PLD 1985 Kar. 698 and S.B. decision reported in Shaikh Fazaluddin v. Dawood Rehman and others 1983 CLC 470 can be referred to in support of this view. The decision in the case of Muhammad Aslam (supra) does not contain observations in clash with the view taken in the above two decisions of this Court. In fact that judgment had set aside the orders of the Rent Controller for the sake of consistency with the earlier orders in the connected petitions whereby the orders of the Rent Controller were set aside and the matter remanded for fresh decision.

15. In view of the above discussion and conclusions, the orders assailed through the present Constitutional petition do not contain any jurisdictional defect or legal infirmity and as such do not call for interference in exercise of Constitutional jurisdiction. Consequently, the petition fails and is dismissed in limine. M.H./T-21/K Petition dismissed.