2003 PLP 2069 (YLR)

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 petitioner's 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 were 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 Ahmed and 5 others v. Mst. Farukhnisa (PLD 1985 Karachi 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 never 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 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 objections 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 contains 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 tenant under section 2-j(i). After his demise, the two petitioners became tenants in respect of the house being heirs in occupation of the premises under section 2-j(ii) which treats/acknowledges as tenants only those heirs of the tenant who are in occupation of the premises after his death. For appreciation of the first objection raised by the petitioner's learned Advocate regarding the relationship and preliminary issue, it will be appropriate to reproduce and examine the definition of "tenant" as given in section 2-j(i)(ii) 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 said tenant continued 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 incapacity of purchaser/agreement holder specially when 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 Lahore 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 tiled, the Controller shall, on application by the landlord and after such summary inquiry as he deems tit 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 tenant 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.

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 tenant 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 by 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 their 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:-- "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 referred to by the petitioner's 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 controversy about the rate of rent. 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 is 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 respect of the future monthly rent. Unless the order of the Rent Controller is without jurisdiction it would not be illegal in its entirety for being defective partly. 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 Karachi 698) and S.B. decision reported in Shaikh Fazal-ud-Din 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 suffer from 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. H.B.T./F-44/K Petition dismissed.