2001 SCMR 2012 (PLP)

MAMOON KAZI, J.‑‑‑Marie Colaco School situated on Plot NO.P N.I. Lines, Karachi, was being run by A.M. Qureshi, the predecessor‑in‑interest of the respondents. On the promulgation of M.L.R. 118 of 1972 the said school was nationalised and was taken over by the Government, the petitioner in this case.

2. On 5‑3‑1978, the respondents, predecessor filed a rent case seeking ejectment of the petitioner from the said school for non‑payment of rent. The case of the respondents was that prior to the said take‑over the school building had been let out under an agreement at a monthly rent of Rs.2,500 and such rent was being paid by the management of the school to the respondents' predecessor.

3. In the written statement filed on behalf of the petitioner, the relationship of landlord and tenant between the parties was questioned and the respondents were put to proof to establish such relationship.

4. On 27‑2‑1979, the Rent Controller passed a tentative rent order under section 17(8) of the Cantonments Rent Restriction Act, 1963, directing the petitioner to deposit rent at the rate of Rs.2,070 per month which was in accordance with the assessment made by the Excise and Taxation Department in respect of the disputed premises. The petitioner was directed to deposit such rent from the period starting from 5‑3‑1975 to 28‑2‑1979. It was further directed to continue to deposit future monthly rent at the same rate.

5. In the meanwhile, the landlord approached the Rent Controller to strike off the petitioner's defence alleging that on twenty‑one occasions the tenant had committed default by railing to deposit the monthly rent within time. Thereafter, order dated 3‑3‑1983 was passed by the Rent Controller whereby the petitioner's defence was struck off and they were directed to hand over vacant possession to the landlord.

6. The petitioner filed appeal before the District Judge, Karachi which also failed, however, the said order was set aside by the High Court of Sindh in a Constitutional petition as it was held that the Rent Controller was first bound to decide the question in regard to the relationship of the landlord and the tenant between the parties. The matter ultimately came before this Court but the order of the High Court was upheld and the matter was remanded to the Rent Controller for a fresh decision. It was observed by this Court in this regard as under:‑‑ "Mr. J.H. Rahimtoola submitted that the Government was claiming that as a result of the take‑over of privately managed school under M.L.R. 118, the properties connected with such schools vested in the Government as owners, but this position was abandoned and the owners of such property were accepted as landlords by the Government subsequently. In this connection he referred to the order of this Court, dated 25th January, 1990, in Civil Petitions for Leave to Appeal Nos.18‑K of 1989 to 20‑K of 1989, where in similar circumstances the Government accepted the owners as their landlords. Mr. Khalid Anwar has, however, explained that in Syed Zulfiqar Ali Gillani v. Chairman, Local Council, Election Authority (1989 SCMR 1197), the question has been finally set at rest by the Court as to the true connotation and meaning of the term 'vest' occurring in paragraph 5 of the M.L.R.

118. It has been held that such privately managed schools vest in the Government, not as owners in relation to the building wherein the schools were being run but the take‑over only related to the management of the institution. As the owners in that case were not charging rent from the school management, they were treating the Government as licensee after nationalisation. Mr. Khalid Anwar submits that, therefore, the question whether the relationship of landlord and tenant exists between the parties in respect of such nationalized school would depend upon the fact of each particular case and the mere fact that the school has been taken over under M.L.R. 118 would not ipso facto and by operation of law create relationship of landlord and tenant. This appears to be correct position but in any case we would leave this matter to be determined by the learned Rent Controller as the case now stands remanded tee him for decision."

7. After remand of the case to the Rent Controller although, the landlord appeared before the Rent Controller but admittedly the petitioner did not put an appearance to defend the case notwithstanding various opportunities afforded to it in this regard. However, the landlord adduced evidence in support of his said contention but as none appeared on behalf of the petitioner, no evidence was placed before the Controller in rebuttal. After determination of the preliminary issue regarding the relationship between the parties, the petitioner failed to contest the matter further but evidence was I produced on behalf of the respondent‑landlord upon which the Rent'. Controller once again concluded that default had been committed by the petitioner and, therefore, once again he ordered its eviction from the demised premises.

8. The petitioner once again filed appeal before the High Court but in view of the circumstances of the case, without any success and hence the present petition, for leave to appeal.

9. We have heard Mr. Muneeb Ahmed Khan, learned A.A.‑G. appearing on behalf of the petitioners. However, we find that the reasons given by the learned Judge of the High Court for dismissal of the rent appeal do not appear to be open to exception. Admittedly, the petitioner had notice of the proceedings before the Rent Controller after remand of the case to the latter but none appeared on its behalf and led evidence before the learned Controller. The question as to the jurisdiction of the Rent Controller in the matter had already been decided by this Court in the said judgment and the case was remanded to the Rent Controller only for disposal on merits as relationship of landlord and the tenant between the parties had been disputed by the petitioner. It was, however, incumbent on the petitioners to appear before the Rent Controller and led evidence but they themselves failed to appear and defend the case, as just pointed out. Under the circumstances, the Rent Controller had no other option but to proceed with the case and thus, the case was once again decided in favour of the respondent. There is, therefore, no force in this petition. In the result, the petition is dismissed. H.B.T./G‑66/S Petition dismissed.