2002 PLP 143 (CLC)

Ch. Muhammad Sadiq for Petitioner. Khalid Mehmood Ansari for Respondents. Dates of hearing: 18th and 19th September, 2001. Through the filing of this Constitutional petition, the petitioners have called in question order, dated 20-2-1993, whereby the learned Additional District Judge, Chiniot, while accepting the appeal, filed by the respondents, upheld the ejectment order, dated 3-5-1990, passed by the learned Rent Controller, Chiniot, whereby he accepted the application for the ejectment of Mashkoor Ahmad etc.

2. Briefly stated the facts leading to the filing of the present Constitutional petition are that Abdul Ghafoor etc. claiming to be the landlords of the property in question, the respondents, filed an ejectment application against 'Mashkoor Ahmad, predecessor-in-interest of the petitioners, for his ejectment from the house, said to have been purchased by Abdul Ghafoor and others. It was claimed that the predecessor-in-interest of the petitioners, namely, Mashkoor Ahmad, is a tenant under the respondents at a monthly rent of Rs.400 in the property in question. It was alleged that Mashkoor Ahmad has not paid rent since December, 1984 and he has demolished a portion of the property in question, therefore, he is liable to be ejected. The said ejectment petition was contested by Mashkoor Ahmad asserting therein that the learned Rent Controller has no jurisdiction to adjudicate upon the petition as no relationship of landlord and tenant exists between the parties, thus; prayed for the dismissal of the petition. Out of the pleadings of the parties solitary issue, viz. "whether the relationship of landlord and tenant exists between the parties? OPA" was framed by the learned Rent Controller, whereupon the parties led the evidence and the learned Rent Controller, after coming to the conclusion that Mashkoor Ahmad is a tenant in the disputed property under tile respondents at the monthly rent of Rs.400, proceeded to pass the ejectment order, against Mashkoor Ahmad vide order, date 3-5-1990. Obviously aggrieved by the ad ejectment order the petitioners filed the appeal. before the Appellate" Court, but it met the same fate and the learned Additional District Judge dismissed the appeal and upheld the ejectment order passed by the learned Rent Controller vide order, dated 20-2-1993, which orders have been assailed by the successors-in-interest of Mashkoor Ahmad with a prayer that the same may be declared as illegal, without lawful authority and having no legal effect.

3. Learned counsel for the petitioners has contended that there is no sufficient evidence on record to prove that the relationship of landlord and tenant exists between the parties and both the Courts below have erred in law while passing the impugned orders. It has further been submitted that both the Courts below have misread the evidence, which resulted in passing the ejectment order against Mashkoor Ahmad predecessor-in-interest of the petitioners. On the other hand, the- learned counsel for the respondents defended both the impugned orders and urged that there is sufficient oral evidence on record to establish that Mashkoor Ahmad was the tenant under the respondents and, thus, he contended that no exception could be taken by the petitioners to the impugned orders.

4. According to the stance of the respondents, who claimed themselves to be the owners and landlords of the house in question, the tenancy between the parties was oral and there was neither any lease deed nor any other written instrument, which will go to establish that the relationship between the parties is that of the landlord and tenant. It has also been admitted by the parties, as also discernible from the record of the case, that neither any rent deed nor any other document showing that Mashkoor Ahmad was the tenant under the respondents has been brought on record. Under the circumstances and rightly so both the parties are banking upon the oral evidence produced by the respective parties.

5. Before adverting to the evidence on record it appears appropriate to dilate upon, who can claim to be the landlord under the provisions of the Urban Rent Restriction Ordinance, 1959. Section 2(c) of the said Ordinance defines that a landlord can be any person, who is for the time being entitled to receive rent in respect of any building whether on his own account or on behalf of or for the benefit of any other person. It flows from the bare reading of the definition of "landlord", as given in the aforesaid Ordinance, that it is not necessary that in order to fall within the definition of landlord, a person must be the owner of the building or rented land. To further elaborate it can be possible that under the provisions of Rent Restriction Ordinance a person may not be the owner of the building, but still he can be the landlord of particular building. It can even be vice versa in the shape that a person may be the owner of the property, but he does not fall within the definition of landlord, as given in the said Ordinance, as such he cannot claim the land lordship of the building qua the tenant on the basis of his simple ownership.

6. In the above perspective, under the law, a person, who asserts himself as the landlord of the building and claims that a particular person is tenant under him has to establish either through documentary or unimpeachable oral evidence that the particular person is his tenant. In the instant case admittedly, there is no documentary evidence on record to prove the relationship of landlord and tenant and the parties are in consensus on the said position and under the circumstances both the parties are falling back upon the oral evidence, produced by them.

7. Both the Courts below, while relying upon the testimony of A.W.2 and A.W.4, came to the conclusion that Mashkoor Ahmad obtained the house in dispute as a tenant, which was purchased by the respondents, at a monthly rent of Rs.400 and as he did not pay the rent, therefore, the ejectment petition was filed. In order to reappraise the evidence I have examined the evidence on record. A.W.2 simply states that the tenancy was entered into due to his intervention and that he was instrumental in getting the house for Mashkoor Ahmad on rent from the respondents. However, in cross-examination he states that he even does not know the property number and the location of the house in question. He has frankly conceded that the rent for the house in question was never paid in his presence. A.W.4 is the attorney of the respondents, who stated that Mashkoor Ahmad sold his share out of the joint property to his brother, namely Manazar Hussain and thereafter took the house in question on a monthly rent of Rs.400 from the respondents. Apart from the aforenoted sentences, the entire thrust of the statements of these I1 witnesses was regarding the ownership of the respondents qua the house in question. As has been observed above, the "landlordship" and "ownership" of a person are two distinct expressions in law conveying I different meanings, therefore, the respondents may be the owners of the house in question, but they have failed to establish that Mashkoor Ahmad was tenant under them. In the absence of any documentary evidence the statements of these witnesses regarding the establishment of relationship I of landlord and tenant cannot be relied upon. Mere bald assertions regarding the relationship of landlord and tenant can be of no avail to the respondents.

8. I have examined both the judgments wherein both the Courts below have mainly relied upon the ownership of the respondents qua the house in question. Both the judgments suffer from misreading and non reading of evidence on record. Onus of proving the solitary issue was rightly placed on the respondents and they were under legal obligation to prove within the parameters of law that the relationship of landlord and 1 tenant exists between the parties. I am of the considered view that the respondents comprehensively failed to discharge the onus of the said issue, which has, to say the least, incorrectly been decided by both the Courts below, thus, the impugned orders definitely call for interference by this Court in exercise of its Constitutional jurisdiction.

9. In. view of the above conclusions and findings, I am inclined to exercise my Constitutional jurisdiction in the matter, thus, the writ petition is allowed and both the impugned orders, dated 3-5-1990 and 20-2-1993, passed by the learned Rent Controller and the learned Appellate Authority are hereby declared to be without lawful authority and having no legal effect. There shall be no order as to costs. S.A.K./S-306/L Order accordingly.