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‑‑ Ss. 13 & 2(c)‑Relationship of landlord and tenant‑Rent Con troller framed issue on disputed question of relationship of landlord and tenant but confined his order to determination of question of ownership of house without adverting to question of relationship Lower appellate Court affirming finding of Rent Controller‑Disputed question, held, not well‑founded and finding of Rent Controller as well as of lower appellate Court liable to be set aside.

------S. 13(6)‑Default‑Striking off defence‑Rent Controller directing tenant to deposit arrears of rent into Court by a fixed date but tenant remitting arrears to landlord by money order within time allowed by Court and producing money order coupon‑Rent Controller not taking same into consideration and striking off defence of tenant for default Fact that arrears remitted by tenant to landlord within period fixed by Rent Controller, held, shows that tenant acted in good faith and keeping in view his bona fides it cannot be said that he had failed to comply with orders of Rent Controller‑‑Order of striking off defence set aside.

Saadullah Khan Mian Khel for Appellant.

Muhammad Iqbal Khan Kundi for Respondent.

Date of hearing : 7th September, 1982.

Mst. Kishwar Begum (respondent) instituted this ejectment application in the Court of the Rent Controller, Bannu against the appellants seeking their ejectment from the house in dispute on the ground that she has become the owner of the house in question on the basis of a civil Court decree ; that the tenants (a1;Y. .:. : had paid the rent upto 31‑12‑1.970 and since then they had defaulted in the payment of the rent. She also alleged that the house was damaged by the appellants and she bona fide needed the house, for her personal use. The appellants in their written statement denied the relationship of landlady' and tenant' and alleged that they were tenants under Mst. Mihraj Begum, mother of the respondent. It was further alleged that on the application of Mst. Mihraj Begum to the Martial Law Authorities, the arrears of rent were paid to her and later on they also remitted the rent by money order, but Mst. Mihraj Begum refused to receive the same. Similarly the other pleas of the respondent were also controverted.

2. The learned Rent Controller on 27‑5‑1979 framed a preliminary issue to the effect whether there exists the relationship of landlady' and tenant between the parties. The evidence was recorded on the preliminary issue and vide order dated 20‑1‑1981, the learned Rent Controller decided the preliminary issue in favour of the respondent and directed the appellants to deposit the areas of rent by 9‑2‑1980. However, on 9‑2‑1980 it was found that arrears were not deposited by the. tenants and hence their defence was struck off: Qadir Knan and Faizullah Khan (appellants) preferred an appeal before the learned District Judge, Bannu but it was dismissed on 17‑3‑1980. Hence this second appeal.

3. From the perusal of the evidence produced by the parties it becomes clear that the finding of the lower Courts is correct to the extent that Mst. Kishwar Begum has proved her ownership of the house in dispute on the basis of a Civil Court decree but there is no evidence worth the name that relationship of landlady and tenant exists between the parties. Mst. Mihraj Begum (P. W. 1) appeared as attorney of respondent before the Rent Controller and stated that previously the house was rented out by her the appellants and later on her daughter became the owner on the basis of a decree of the Civil Court. She admitted that the property in question as well as the other property belonging to the respondent was rented out by her as an attorney of her daughter. It may be noted that she, being the attorney of her daughter, was entitled to receive the rent from the tenants. According to section 2 (c) of the Rent Restriction Ordinance, 1959, landlord means 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 or for the benefit of any other person and thus it can be urged that Mst. Mihraj Begum was the landlady and the appellants were justified to take the plea that they were tenants under her.

4. It appears that the Rent Controller has confined his order to the determination of the question of ownership of the house without adverting to the question of relationship of landlady and tenant between parties. A Similarly the learned District Judge has affirmed the finding of the Rent Con troller without deciding the question whether the relationship of landlady and tenant existed between the parties.

5. So far as the question of default is concerned, the stand taken by the appellants, is that the arrears of rent were remitted by them through money order to the respondent under a misapprehension because when the direction for the deposit of arrears of rent was made by the Controller, their counsel was not present and thus, they failed to understand the true import of the order of the learned Rent Controller, thinking bona fide that the arrears of Rs. 1,000 were to be paid to the respondent, they remitted the amount by money order. The money order coupon was produced by them before the learned District Judge but it appears that the same was not taken into consideration.. The fact that the arrears were remitted by the appellant to the respondent within the period fixed by the Rent Controller, shows that they had acted in good faith. Had they intended not to comply with the direction of the Rent Controller regarding the payment of the arrears, there was no reason why they should have remitted the amount by money order to the respondent. Therefore, keeping in view the bona fide of the appellants, it cannot be said that they had defaulted in compliance with the order o the Rent Controller for the deposit of the arrears of the rent. In this view of the matter, I have come to the conclusion that the findings of the Rent Controller as well as the learned lower appellate Court, on the disputed questions, are not well founded and thus liable to be set aside.

6. For the aforesaid reasons, the appeal is accepted, the orders of the Rent Controller and the learned lower appellate Court are set aside and the case is remanded to the learned Rent Controller for fresh decision after framing all the relevant issues arising in the case including the issue of landlady' and tenant'. The parties shall be given full opportunity to lead evidence for and against their respective contentions. However, this order shall not prejudice the learned Rent Controller in arriving at the independent conclusion on the evidence adduced in the case.

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