1988 PLP 1112 (MLD)

This appeal is directed against the order of the learned XIIth Sr. Civil Judge/ASJ/Rent Controller, Karachi, passed in Rent Case No.484 of 1981 on 15-5-1984 whereby she has directed the appellant to vacate the demised premises and hand over its vacant possession to the respondent within 60 days from the date of the order viz. 15-5-1984.

2. The respondent filed an application on 3-3-1981 under section 15(1)(ii)(iii)(vii) of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) stating that the appellant is his tenant in respect of Flat No.S.R.9/67, Ratoomal Building Aoutram Road, Karachi, (hereinafter referred to as "the demised premises") at a monthly rent of Rs.330/-, that he had failed to pay rent for the last 3 months., He also stated that he required the demised premises in good faith for his own occupation and use.

3. The appellant contested the said application by filing a written statement. He inter alia, raised preliminary legal objection to the effect that the demised premises was transferred. to Mst. Anwari Begum, who had since died about two years back and that she being the transferee of the said premises from the Settlement Authorities failed to serve the statutory notice upon the appellant. It was further pleaded that there was no relationship of landlord and tenant between him and the respondent. The allegations of default and personal requirement as pleaded in the application were denied as being false.

4. Out of the pleadings of the parties the learned Rent Controller framed the following issues:- "(1) Whether there exists relationship of landlord and tenant between the parties? (2) Whether the opponent has committed default in payment of rent? (3) Whether the applicant requires the premises in case for his personal bona fide use? (4) What should the order be?" By his impugned order he answered the issues Nos.1 and 2 in the affirmative and the issue No.3 in the negative. Consequently, he allowed the application as stated above.

5. I have heard the leaned counsel for the parties and have also with their assistance perused the depositions of the parties. The admitted position which emerges from the lower Court record is that the demised premises was transferred by the Settlement Authorities in favour of Mst. Anwari Begum, who admittedly died in 1973. By virtue of Ex.0/1 dated 1-9-1965 the tenancy agreement was executed between the deceased Mst. Anwari Begum and the appellant above named. It is further admitted by the respondent in his cross -examination that he had been receiving the rent of the demised premises from the appellant as an attorney/rent collector of the deceased Mst. Anwari Begum. It also appears from the deposition of the respondent that even after her death he continued to receive the rent from the appellant. The respondent has also specifically admitted in his cross-examination, as already stated, that the demised premises belonged to and was owned by Mst. Anwari Begum. He has, however, deposed that upon her death he continued to receive the rent despite the fact that the property in question had not been mutated in his name. It is, however, clearly borne out from the deposition of the respondent that he is not the owner of the property inasmuch as he has led no evidence on record to substantiate as to how and m what manner this property devolved upon him, when he was admittedly the grandson of the deceased owner. The power of attorney or the right to collect the rent on behalf of the deceased owner Mst. Anwari Begum ceased to exist in law upon her death in the year 1973. If after the death of the owner the respondent collected the rent or the appellant paid him the rent it did not, in the eye of law, result in creating relationship of landlord and tenant between them independent of the original tenancy between the appellant and Mst. Anwari Begum. It was, in my opinion, incumbent upon the respondent to have specifically pleaded in the application as to how had the ownership of the demised premises vested in him and that the appellant had admitted him to be the owner of the house and in that capacity paid the rent to him. These factors unfortunately have not been pleaded or proved by the respondent. The learned trial Court, in my opinion, utterly failed to examine the case in the right legal perspective.

6. The learned counsel for the appellant has drawn my attention to an authority of the Supreme Court of Pakistan reported in P L D 1985 S C 1 wherein it has been held as under:- "Two main questions, amongst others, were examined in that case. One, whether when acting under the Rent Restriction Law a Controller or a Court in appeal can decide issue of relationship of the landlord and tenant in favour of the landlord even when there is a doubt about the strength of his case or to put it otherwise, the material brought on record by the tenant has made the landlord's claim doubtful. And two, whether in such a situation, the tenant and not the landlord should be left/advised to seek remedy in a .civil Court." Regarding the first question it was made clear that when a person relying on the opening part of the definition of landlord in section 2(c) of the West Pakistan Urban Rent Restriction Ordinance (NO.VI of 1959) basis his claim on the right to receive rent on account of the ownership of the property, he will have to "satisfy" the Rent Controller about the title. If he succeeds, he would be adjudged as landlord. If he fails to satisfy the Rent Controller the verdict will be against him. And further if the Rent Controller's satisfaction is not beyond reasonable doubt even then the verdict on this question will be against him." He also invited my attention to a decision of Baluchistan High Court reported in P L D 1979 Quetta 157 wherein it has been held as under:- " ....A person appointed by a landlord to correct rent, of his various properties, on his behalf, does not make such collector the. landlord of the properties in question. Such rent collector is merely deputed to receive or collect the rent. By such appointment the rent collector does not become entitled to receive rent is conferred on such person, and by virtue of such title the person can collect rent in his own right though on behalf of or for the benefit of any other person. Mr. Khalid Malik, the learned counsel for the respondent contends, that in view of the admission of the appellant that respondent Ghulam Raza used to receive rent even 'during the lifetime of late Wali Muhammad makes him landlord in terms of section 2(c) of the Ordinance. In the first place mere act of collection of rent and to issue receipts does not mean that such person was entitled to receive, unless independently such entitlement is shown. This has not been shown in this case. Secondly, the appellant has stated, in her cross-examination, that the receipts issued by Ghulam Raza, on such payment of rents during the life time of Wali Muhammad were so issued on behalf of Wali Muhammad. This fact negates the contention, if any, that Ghulam Raza was entitled to receive rent even during the lifetime of late Wali Muhammad."

7. For the reasons recorded above I am satisfied that the learned Rent Controller has exercised his jurisdiction in the instant case with patent illegality: inasmuch as there was no relationship of landlord and tenant existing between the appellant and the respondent as` discussed above. His finding on issue No.1 is patently unsustainable in law. It is accordingly reversed.

8. In the result, the impugned order is set aside and the appeal is allowed with no order as to costs. M.Y.H./G-68/K Appeal allowed.