1993 PLP 2222 (MLD)

A bare reading of clause (f) of section 2 of the said ordinance makes it clear that it means the owner of the premises and the same would also include a person who is for the time being authorized or entitle to receive rent in respect of such premises. In Shahriyar Ali Patudi and 3 others v. M/s. Decora Furnishers PLD 1985 Kar.47, Mr. Saleem Akhtar, J. (now Judge of Supreme Court) held that under law any person entitled to receive rent whether on his own account or on behalf of or benefit of any other person, is a landlord. Co‑owner is entitled to recover rent on behalf of or for the benefit of other co‑owners. In Shakir Ahmed v. Khurshid and another 1988 MLD 326, it was held by Mr. Justice Saleem Akhter, J (now Judge of Supreme Court) that a person who is owner or authorized to receive rent, is a landlord. In Yousaf and another v. Muhammad Zubair and another PLD 1986 SC 154, it was held that "a reading of this provision (section 2(f)) clearly shows that the word `landlord' has been given an extended meaning, to include not only the owners but also persons, who for the time being, are either authorized or entitled to receive rent in respect of the premises in question and they need not be the owners of the same". In Dr. Burjor N. Anklesaria v. Mrs. Zenobia and another 1982 SCMR 98, it was held that according to the above definition of the word `landlord', even a person for the time being entitled to receive rent in respect of any building, is a landlord for the purposes of the Ordinance in question. In Raja Saleem Akhtar v. Habibullah and 2 others 1984 CLC 2604, Mr. Munawwar Ali Khan, J. (as he then was) held that the definition of landlord, of course, includes a person who is for the time being authorized or entitled to receive rent. The position that emerges is that the definition of word `landlord' includes a person who is for the time being authorized or entitled to receive rent. It has come on record that the respondent entered into an agreement of tenancy with the appellant. This is not denied by the parties. The specific plea raised by the appellant is to the effect that the tenancy agreement was not renewed. The owner of the shop premises is Doctor Muhammad Rafiq. It is admitted position that Dr. Muhammad Rafiq had filed suit being Suit No.745 of 1986 against the respondent in 1980. The parties settled their disputes and had filed a compromise application. The compromise was recorded on 6‑3‑1988. The respondent had personal knowledge about pendency of the suit but he did not care to mention the same in his eviction application which was presented on 30‑9‑1987. It is pertinent to note that the tenant took a specific plea that he was paying rent to Dr. Muhammad Rafiq. The question for determination is that the appellant has committed wilful default in payment of rent or not. The case of the appellant, as set out in his written statement, is that Dr. Muhammad Rafiq is owner and he has been paying rent to him. The tenant has produced eight receipts in support of this plea. The appellant has filed an application under section 21(3) of the said Ordinance praying for holding enquiry. The learned counsel appearing for the appellant has drawn my attention to a case namely Dr. M. Murtaza Hussain v. Muhammad Mustafa reported in 1988 SCMR 741 wherein it was held at page 743 as under: ‑‑ "On a plain reading of the aforesaid provisions it appears to us that the only limitation on the power of the appellate authority to make a further inquiry at the appellate stage is that after perusing the record of the case and hearing the parties, such further inquiry should be deemed to be necessary:" In Haji Ibrahim v. S. Rehmatullah 1985 SCMR 241, it was held at page 249 as under: ‑‑ "These general principles of law, viz. the vesting of the property rights, i.e. of the estate of the deceased in the legal heirs, and the need to give certainty and finality to adjudications by reference to the date of institution of the proceedings and its hearing are controlled by yet another principle, that in appropriate cases an appellate Court may mould the relief according to the changed or altered circumstances, on facts or law. This last overriding principle finds statutory recognition in sections 107 and 151, Order VII, rule 7, Order XLI rule, 27 of Civil procedure Code, section 15 of Urban Rent Restriction Ordinance,' 1959 and section 21 of Sindh Rented Premises Ordinance, 1979. It finds recognition as principle of equity in the words that follow: ‑‑ `A decree in equity generally operates on the parties and subject matter as they stood at the commencement of the suit, but it does not only to sub server the ends of justice, and where a radical change in the ultimate rights of the parties has been brought about by the passing of time and knowledge of this change is judicially before the Court or is brought in by appropriate pleading, its decree is addressed to the rights existing, not at the commencement, but at the time of determination of the suit or date of the decree provided there was sufficient foundation for the suit when it was commenced, and such relief is pertinent to that sought by the bill, and provided further it would be equitable and just to recognize the intervening rights'." 30CJS990 It has been further held in Dr. M. Murtaza Hussain's case 1988 SCMR 741 as follows:‑‑‑ "In order to make up his mind whether further inquiry is necessary or not, it is obvious that the appellate authority has to see the nature of the evidence proposed to be produced by the applicant. If such evidence, whether ‑‑oral or documentary, is upon a matter irrelevant to the controversy before the Court, it cannot be deemed necessary to reopen the case for additional evidence under section 21(3)." The dictum of law laid down in the above cases, is relevant to the facts of the instant case. In the light of the above dictum, the documents annexed to the application, counter‑affidavit and affidavit‑in‑rejoinder are relevant in the case. The said Dr. Muhammad Rafiq has filed affidavit in this Court stating therein that being a doctor, busy in his profession, he rented out this property to the appellant through his father. He has further stated that the appellant was regularly paying rent to him through his father and therefore directly to him at their request. He has further stated that the appellant has paid rent upto date to him and he is not defaulter. In the facts and circumstances of the case, I am of the humble opinion that the application under section 21(3) of the said Ordinance is maintainable and the documents are not irrelevant. In the result, the application is allowed. The impugned order is set aside and the case is remanded to the VIth Senior Civil Judge/Rent Controller, Karachi East for disposal in accordance with law after affording the parties opportunity to lead additional evidence in support of their respective contentions. The parties through their counsel are directed to appear before the Controller on 17‑10‑1992. The learned Controller is directed to decide the main case within three months from 17‑10‑1992. 1n the circumstances of the case, the parties are directed to bear their own costs. H.B.T./Z‑192/K Application allowed.