Find a Lawyer

Writ Petition No. 102 of 1984, decided on 6th November, 1985.

‑‑‑S. 13‑‑Eviction of tenant‑‑Mistake in description of rented property‑ Effect‑‑Mistake in description of property wherefrom eviction of tenant was sought, held, could be corrected at any stage of proceedings --Eviction application could not be dismissed on ground of such mistake‑ When property could be identified by its municipal number, discrepane3 in boundaries mentioned in sale‑deed of same and given in site plan attached with ejectment petition was of no consequence.

‑‑Ss. 2(c) a 13 (2)(vi)‑‑Reconstruction of rented property‑‑Sanction granted by Authority to real owner‑‑Validity‑‑Property in dispute was purchased and owned by wife of landlord‑‑"Husband of landlady was landlord within meaning of S.2(c) of Ordinance 1959 as he was looking after property and was receiving rent of property from tenant‑‑Husband of owner lady being landlord and not owner, held, could not obtain sanction for reconstruction of property from Authority concerned‑ Sanction granted by Authority in name of real owner (wife of landlord) was correctly granted.

‑‑'Preamble'‑‑Provisional Constitution Order (1 of 1981), Art. 9 Object of Ordinance‑‑Substantial compliance with provisions‑‑Object o1 Ordinance, 1959 primarily was to regulate relation between landlord and tenant‑‑To control rent payable by tenant to landlord and to control right of landlord to eject his tenant‑‑Law required substantial compliance with provisions of Ordinance‑‑Literal or strict compliance with provision thereof, held, could be avoided when it might lead to impossible results.

Muhammad Hussain Munir v. Sikandar P L D 1974 S C 139 and Badrul Haque v . Election Tribunal, Dacca P L D 1963 S C 704 ref.

Muhammad Sardar Khan for Petitioner.

Abdur Rahim for Respondent No. 1.

Date of hearing: 29th October, 1985.

The dispute in this writ petition concerns shop No. 1217 situated in Muslim Meena Bazar, Peshawar City. The shop was purchased by Mst. Saadia Begum (respondent‑2) wife of Abdul Salam by registered sale‑deed, dated 24‑2‑1962. On 23‑12‑1978 she applied before the Rent Controller, Peshawar for ejectment of Bashir Ahmad (petitioner) from the shop on the grounds of default in the payment of rent and bona fide requirement for reconstruction. The tenant in his written statement denied the relationship of landlord and tenant and stated that the Rent Controller had no jurisdiction. In view of the evidence produced by the parties the learned Rent Controller came to the conclusion that there was no relationship of landlord and tenant between the parties as Abdul Salam (respondent 1) husband of Mst. Saadia Begum was the landlord who had rented out the shop in favour of the tenant. Mst. Saadia Begum feeling aggrieved went in appeal before the District Judge, Peshawar but her appeal was dismissed on 18‑9‑1980 and the finding of the Rent Controller was affirmed. Subsequently on 11‑2‑1980 Abdul Salam and his wife Mst. Saadia Begun jointly applied for the eviction of the tenant from the shop on the grounds of default in the, payment of rent and bona fide need for reconstruction. The application was again resisted by the tenant by raising various legal and factual pleas including the one that the application was hit by the principle of res judicata. The learned Rent Controller after recording evidence of the parties came to the conclusion that since similar application had already been dismissed by the Rent Controller the present application was barred under section 11 of the Civil Procedure Code read with section 14 of the West Pakistan Urban Rent Restriction Ordinance, 1959. It was also held that the boundaries of the shop in question given in the site plan attached with the application did not tally with the boundaries given in the site plan of the proposed construction. Regarding the default in payment of rent it was held that since the tenant had been remitting the rent by money orders the tenant did not commit any default. The issue regarding the bona fide need for reconstruction was also decided against the landlords as the learned Rent Controller could not say as to whether sanction given by the Municipal Corporation for reconstruction in fact related to the shop in question. The ejectment application was, therefore, dismissed on 21‑6‑1982. Abdul Salam and Mst. Saadia Begum then went in appeal and their appeal was accepted by the Additional District Judge, Peshawar on 10‑12‑1983 and the ejectment order prayed for was granted in their favour against the tenant. It was held that the application was not barred under section 14 of the West Pakistan Urban Rent Restriction Ordinance because the present application was instituted by Mst. Saadia Begum and her husband jointly and there was no denial that Mst. Saadia Begum was the real owner of the shop and Abdul Salam, her husband, was the landlord as he on behalf of his wife rented out the shop to the tenant and was also receiving rent from him and thus the application filed by both of them was not incompetent under section 14 of the Ordinance. Regarding the boundaries of the property it was held that the record keeper of the Municipal Corporation has proved that the site plan attached to the petition related to the same property in respect whereof the petition was brought and this site plan and the one approved by the Municipal Corporation, are in material particulars, the same. It was held that the site plan attached with the petition was correct. However, the issue of default in payment of rent was decided in favour of the tenant but the bona fide requirement of the landlords for reconstruction was upheld on the ground that even if the shop was not in a dilapidated condition and did not require reconstruction the landlords had the right to reconstruct the property and enhance its value.

2. In support of the petition the learned counsel raised two fold contention. Firstly, that the description of the property was not correctly given inasmuch as the number of the shop mentioned in the sale‑deed, dated 24‑2‑1962 whereby Mst. Saadia Begum purchased the property is 217 but in the eviction application the number is given as 1217. Similarly the boundaries mentioned in the sale‑deed do not tally with the boundaries given in the site plan attached with ejectment application and, therefore, for this reason no order of ejectment could be passed against the tenant. Secondly, that the sanction for reconstruction of the property was given by the Municipal Corporation in the name of Mst. Saadia Begum and not in the name of Abdul Salam who was held to be the landlord by the Rent Controller in the former ejectment application as under section 13(2)(vi) of the Ordinance only the landlord is required to obtain the necessary sanction for reconstruction or erection of a new building. Thus, Mst. Saadia Begum not being the landlady, the sanction accorded in her name was not a proper sanction and the learned appellate Court had erroneously held that a valid sanction for the reconstruction of the property had been obtain by the landlord. Regarding the first contention it may be mentioned that in his written statement the tenant had only stated that the site plan attached with the application was not correct because the property of some other persons was also mentioned therein. It was not his case that the shop in his possession was not the same wherefrom his eviction was sought before the Rent Controller. His plea was that he was a tenant in the shop in question not under Mst. Saadia Begum but under Abdul Salam, her husband. Thus, the identity of the property was never in dispute between the parties and even if there was a mistake in the description thereof it could be corrected at any stage of the proceedings and the eviction application could not be dismissed on this ground. Since the identity of the property is not in dispute it can be said that the number of the shop mentioned in the sale‑deed as 217 and in the eviction application as 1217 is the result of a clerical mistake and it appears that the correct number of the shop is 1217 as mentioned in the eviction application as well as in the site plan for reconstruction approved by the Municipal Corporation. When the property can be identified by its Municipal number, the discrepancy in the boundaries referred to by the learned counsel would be of no effect. Regarding the other contention of the learned counsel it may be mentioned that the validity of the registered sale‑deed, dated 24‑2‑1962 in favour of Mst. Saadia Begum is not questioned. It is in evidence that Abdul Salam her husband was looking after the property on her behalf and also inducted the petitioner as a tenant in the property and was receiving rent from him. Thus for all intents and purposes Mst. Saadia Begum, being the owner of the property, was also the landlady but for the purposes of the Rent Restriction Ordinance and in view of the definition of the word "landlord" as given in section 2(c) thereof, Abdul Salam her husband was held to be the landlord in the former eviction application because according to the said definition, "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. Abdul Salam though a landlord within the meanings of the Ordinance was not the owner of the property and hence could not obtain sanction for reconstruction from the Municipal Corporation. Thus the sanction in this case was correctly granted in the name of Mst. Saadia Begum who was the real owner of the property. It may be mentioned that the object of Rent Restriction Ordinance primarily is to regulate the relation between the landlord and tenant with a view to control the rent which is payable by the tenant to the landlord and also to control the right of the landlord to eject his tenant. What the law requires is a substantial compliance with the provisions of the Ordinance and a literal or strict compliance with the provisions thereof can be avoided when it may lead to impossible results. While giving a liberal construction to the provisions of the Ordinance', in the peculiar circumstances of this case it can be said that the sanction for reconstruction was not invalidated simply because it was obtained by Mst. Saadia Begum, the real owner of the property, and not by Abdul Salam who was looking after the property on her behalf and was considered as a landlord for the purposes of the Ordinance.

3. In these circumstances even if we are persuaded to hold that the impugned order was erroneously passed it would not furnish a ground for interference in the constitution jurisdiction. In Muhammad Hussain Munir v. Sikandar P L D 1974 S C 139 it was observed that:---

" ----it is wholly wrong to consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exerciseable in a full‑fledged appeal, which plainly is not the intention of the Constitution makers."

In Badrul Haque v. Election Tribunal Dacca P L D 1963 S C 704 it was held that:‑‑

"The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of mala fide or a mere colourable exercise of jurisdiction could be made out the decision would not be without lawful authority. If an order can be without legal authority because of a clearly wrong determination of a question of law, it should be without legal authority even in case of a clearly wrong determination of a question of fact. There is no reason for any distinction in this connection between a decision on a question of law and a decision on a question of fact."

In this view of the matter we do not find any scope for interference by us in the constitutional jurisdiction. The writ petition is accordingly dismissed with no order as to costs.

H . B . T . Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.