2018 PLP 101 (CLCN)

ZULFIQAR AHMAD KHAN, J.

This petition has been filed challenging order passed in the First Rent Appeal No.17 of 2003, available at Page No.15.

2. Admitted position is that the respondent No.1, who is now survived by his legal heirs was a tenant of the predecessor of petitioner, who through an agreement dated 20.04.1978 produced at Page No.13, of this petition, rented out the shop No.5 to the respondent No.1. The shop built at C.S. No.D/2273, Resham Gali, Hyderabad, originally was in possession of the landlord as an evacuee property vide PTD No.20762 dated 28.10.1970 and the tenant was put possession under the above relationship created through the rent agreement dated 20.04.1978.

3. A dispute arose between the landlord and Evacuee Trust, where vide order of the Chairman Evacuee Trust produced at Page No.87, the PTD issued by Settlement Department in respect of a number of properties including the subject property was cancelled, against which a representation was made before the Additional Secretary, Government of Sindh, dated 26.01.2005 available at Page No.93. When this battle was going on, the landlord moved an application before the Rent Controller alleging default and personal bona fide use. The Rent Controller vide order available at Page No.41 while gave negative findings on the point of default, however, on the point of personal bona fide use, allowed the application and directed the tenant to handover possession of the shop within 90 days. The said order was challenged by the tenant in F.R.A. No.17 of 2003 where appellate Court on its own motion framed the point of determination "as to any relationship of landlord and tenant between the parties" and allowed the appeal on the ground that no such relationship existed since the landlord was in dispute with the Evacuee Trust. The said order was challenged through C.P. No.S -115/2004 where this Court vide order dated 28.08.2006, set-aside the impugned order and remanded the case back to the concerned District Judge with directions to pass speaking order after giving opportunity to the parties within 4 months. On that order, judgment dated 02.03.2007 was rendered where as to the point of relationship of landlord and tenant, the Court gave the findings that no such relationship existed, therefore, allowed the appeal in the above manner. The said judgment has been impugned through the instant petition.

4. Learned counsel for the petitioner landlord submitted that the case of his allotment was between landlord and Evacuee Trust of which no benefit could have been claimed by the tenant, who paid the rent from October-1978 till October-2001 and thereafter stopped paying the rent. Learned counsel placed reliance on 1996 SCMR 1603 and 2007 SCMR

128. Learned counsel further added that even if there was a dispute between the Evacuee Trust and the landlord, the tenant was sitting as statutory tenant of the petitioner, therefore, he was required to make payment of rent to the landlord. In support of his contention, he placed reliance on 1985 SCMR 1256 and 1998 SCMR 349 also.

5. Learned counsel for the respondent challenging the assertions of the petitioner's counsel submitted that once landlord's PTD was cancelled, his client seized to be the tenant of the petitioner, therefore, he was not required to make payment of the rent to him. Learned counsel further submitted that for the last 15 years, his client is depositing the rent with Evacuee Trust. Learned counsel concluded by submitting that the petition being meritless be dismissed.

6. Heard the counsels and perused the material available on record.

7. The case at hand is that the landlord's title is the legal creation of an order passed by the Evacuee Trust, which may be in dispute but the admitted fact is that the tenant is a creation of the agreement entered into between the landlord and tenant in the year 1978. There could have been no possibility of the tenant sitting in the premises, if he had not been entered into the rent agreement with the petitioner. Any dispute between the petitioner and the Evacuee Trust is independent of the character of tenancy relationship between the parties to the tenancy agreement. The Apex Court in particular cases relating to the matter where a dispute between the landlord and the Evacuee Trust was in the offing has held that the tenant would not be beneficiary of that dispute and he continues to remain a tenant of the landlord who made him sit in the premises. In the case reported as 2007 SCMR 128, the apex Court held that the ownership of the property is not an essential condition to create relationship of landlord and tenant. The law regulating the relation between landlord and tenant, being the Sindh Rented Premises Ordinance, 1979 under section 2 very clearly defines "landlord" being the owner as well as a person for the time being entitled or authorized to receive the rent in respect of the premises. When posed with the challenge as to in which capacity the tenant is continuously keeping the possession of the premises, rapidly the learned counsel for the respondent produced payment slips of the rent to the Evacuee Trust and submitted that he has been given the premises by the Trust. While no such evidence is brought forward to the Court or is available on record, however, contrary findings are available at Page No.83 where the concerned officer of Evacuee Trust has stated that no authority has been given to the tenant to pay the rent of the premises, nor he was paying the rent. For the reasons mentioned above, I reach to the conclusion that the respondent has no legal character to continue to occupy the premises, which have been called upon by the learned Rent Controller to be vacated for the bona fide personal use of the landlord, therefore, I am compelled to allow this petition by setting aside the judgment of the appellate Court. SA/F-14/Sindh Petition allowed.