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Second Rent Appeal No. 303 of 1976, decided on 4th June, 1981.

‑‑ Ss. 2 (1) & 13‑Tenant‑Landlord and tenant, relationship of Contention that if landlord establishes his title to property and a person proved to be in possession of same, landlord without consent of such person can accept him as his tenant and to create tenancy consent of such person not necessary, held, had no force‑Ordi nance recognise creation of tenancy by agreement and does not contemplate creation of tenancy at sole discretion of landlord without consent of tenant.

Suleman v. Settlement Commissioner, Karachi P L D 1967 Kar. 834 and Muhammad Hashim v. Zulfiqar Ali Khan P L D 1963 Lah. 418 ref.

‑‑ S. 2 (1) ‑‑ Contention that word "rented" having been used with word "land" and not "building" as such word "rented" suggests an agreement and no agreement necessary for creating tenancy in respect of building‑As such appellant could impose himself as landlord and relationship and landlord and tenant can thus be established‑Such contention, held, fallacious and devoid of force.‑[Words and phrases].

‑‑ S. 13‑Landlord and tenant, relationship of‑To prove relation ship of landlord and tenant landlord not examining himself but relying on judgments of Rent Controller and High Court holding him to be owner‑Tenant not party to such proceedings ‑ Merely proceeding against other tenants in respect of separate tenements in same building, held, does not establish respondents to be tenants of appellant.

Akhrar Mahmood for Appellant.

Shaffat Hussain .for Respondents.

Dates of hearing : 12th and 19th April, 1981.

The disputes relates to premises bearing No. 2/327/C‑5, situated at Cosmopolitan Colony, Raja Mahmoodabad Road, Karachi. The appellant claims to be the owner of the disputed property of which Haji Shakoor Tumbi the predecessor‑in‑interest of the respondents was the tenant in respect of the first floor of the disputed premises since 1954, at an agreed rent of Rs. 200 per month. After the death of Haji Shakoor Tumbi in the year 1958, the respondents being his legal heirs are alleged to become the tenants. The appellant filed an application for ejectment against the respondents on grounds of default in payment of rent, subletting and bona fide personal requirement. The respondents challenged the relation ship of landlord and tenant and claimed that they have been in occupation of we disputed premises from 1954, in their own independent right and have been regularly paying property taxes and all other dues. The respondents further claimed that the appellant never demanded the rent and they have never paid the rent to the appellant nor accepted him as their landlord. In view of these pleadings the Controller framed pre liminary issues. The appellant produced certified copies of the orders passed in two rent cases filed by him against other tenants of the same building and relied by him against other tenants of the same building and relied upon the judgment reported in P L D 1967 Kar. 834. The respondents examined Muhammad Amin and the respondent No. 1. On the basis of the evidence brought on record, the Controller by his order dated 30th October, 1979 held that the appellant was the landlord and tile relationship of landlord and tenant existed between the parties. Con sequently on 19th November, 1970 the Controller passed an order under section 13 (6), of the West Pakistan Urban Rent Restriction Ordinance 1959, directing the respondents to deposit the arrears of rent from 16th October, 1966 to 31st October, 1973 at the rate of Rs. 200 per month. The respondents were further directed to deposit future rent in Court before, 15th of every calendar month. The respondents continued to de posit the monthly rent till 25th July, 1974 when the ejectment application filed by the appellant was dismissed for non‑prosecution. The appellant filed an application for setting aside the order of dismissal which was gran ted by the Controller on 11th July, 1975 whereby the order dated 25^th July, 1974 was recalled on the payment of ‑cost and the Controller ordered that the application be restored to file and be placed at the same stage where it was at the time of dismissal. Further direction was given that "let the appellant lead his evidence on the next date of hearing positi vely". The respondents deposited all the arrears from July, 1974. to 31st July, 1975 on 1st August, 1975. The appellant moved an application on 11^th July, 1975 alleging that the appellant has failed to deposit the rent as required by order dated 19th November, 1970. The respondents filed objections and pleaded that after the order dated 11^th July, 1975 was passed he deposited the arrears of rent due within a reasonable time i.e. on 1st August, 1975 and denied that any default has been committed. The Controller by his order dated .19th January, 1976 held that the respondent had defaulted in depositing the rent in the terms of order dated 19th November, 1970 inasmuch as the rent for the months of June, should have been deposited up to 15th of July, as the order of restoration had been passed on 11th July, 1975 and consequently the defence of the respondents was struck off.

The respondents filed an appeal before the learned District Judge challenging the orders dated 30th October, 1970 and 19th January, 1976. The learned Additional District Judge allowed the appeal and set aside both the orders of the Controller.

Mr. Akhtar Mahmood the learned counsel for the appellant has frankly conceded that in view of various judgments of the Supreme Court and High Court appeal against order dated 30th October, 1970 is maintainable. There is therefore no dispute about the proposition that the appeal filed by the respondents before the Additional District Judge challenging both the orders of the Controller was competent.

Mr. Akhtar Mahmood the learned counsel for the appellant has con tended that in order to establish the relationship of landlord and tenant between the parties, if landlord establishes his title to the property and a person is proved to be in possession of the same, then the landlord even without the consent of such person can accept him as his tenant and it is not necessary that in order to create tenancy consent of such person may be obtained. The proposition seems to be very strange as from its very nature a person in occupation of a premises may become a tenant at the sole discretion and desire of the owner. .

Tenancy is a status which carries certain advantages. Under a contractual tenancy the relationship of landlord in consideration of the rent payable by the tenant confers on him a right of exclusive possession of the demised premises. Under the Rent Ordinance a statutory tenancy arises when a tenant under a lease or other contractual tenancy of premises within‑the Ordinance holds over and remains in possession after the expiry of the contractual tenancy. It can also arise under the Ordinance in cases where the tenant dies leaving such legal representatives which have been recognised by Ordinance to continue as tenant. A statutory tenancy can thus be created by operation of law. According to Sind Urban Rent Restric tion Ordinance 1959 landlord has been defined as "any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of or for the benefit of any other person and includes a tenant ‑ who sublets a building or rented land and every person from time to time deriving title under a landlord". The word "tenant" has been defined by section 2 (1), as any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of the tenancy in his favour, and (b) the wife and children of the deceased tenant. In these definitions words of wide import have been employed but in essence .as held in P L D 1963 Lah. 418 "rent is payable by a tenant in relation to transfer of an interest in and a right to enjoy a particular land" or build ing. The Ordinance recognizes creation of tenancy by agreement. It does not contemplate creation of tenancy at the sole discretion of the land lord without the consent of the tenant.

While referring to the definition of the words "building" and "rented land" as provided by the ‑Ordinance the learned counsel for the applicant submitted that the word "rented" has been used with the word "land" not with "building". He concluded that the word "rented" suggests an agreement and as it has not been used with the word "building" no agreement is necessary for creating tenancy in respect of a building. In this view the learned counsel submitted that the appellant could impose himself as a landlord and the relationship of landlord and tenant can thus be established. The contention is fallacious and devoid of any force. If this contention is accepted it will not only lead to absurdities but will unsettle the settled law. The two words referred above have been given a definite meaning in the Ordinance. By these definitions the legislature has clearly made a distinction between the word "building" and "rented land". The intention of the legislature cannot be determined by referring to the use of a terminology without referring to the meaning assigned to it. While interpreting the words "building" and "rented land" one has only to restrict himself to the clear meaning given by the statute. There is no ambiguity in the words used by the legislature and therefore they have to be interpreted in their literal sense. A glance on the definition of these words does not justify the interpretation sought by the counsel for the appellant. By no rule of interpretation such a meaning can be assigned to the word "building" as suggested on behalf of the appellant.

To prove the relationship of landlord and tenant the appellant did not examine himself. He only relied upon the order of the Controller and judgment of the High Court ‑holding him to be the owner. In all the matters in which the aforestated order a judgment was passed the respon dents were not a party. Merely because the appellant had been proceeding against other tenants in respect of separate tenements in the same build ing does not establish that the respondents were the tenants of the appel lant. The learned Additional District Judge has rightly observed that the finding of the Controller is not based on any evidence and he has only relied upon surmises and conjectures. Faced with' this situation the learned counsel for the appellant raised the arguments introducing a new concept of tenancy which cannot be accepted since the relation ship of landlord and tenant has not been established. The order passed by the Controller under section 13 (6), of the Ordinance and con sequently the order striking off the defence were illegal and without jurisdiction.

In view of the above discussion it is not necessary to deal with the arguments of the learned counsel for the parties relating to the default committed by the respondent in depositing the rent. The appeal is there fore dismissed with no orders as to the costs.

M.Y.M. Appeal dismissed.

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