'On 29-7-2003 the petitioners filed a suit against the respondents. In the plaint, it was stated that they, are respectively the President and Secretary of the Association of Hawkers (Khancha Farooshan) and are selling eatables in the New Sabzi Mandi, Multan, since years. The respondent No,1 was allotted a 17 Marlas plot in an auction held by the Market Committee on 19-7-2003 who is giving out that the hawkers should pay and obtain licence from him otherwise they will be removed An advertisement has been issued that only such persons can sell eatables in the Market who have licences from the respondent No,
1. With these averments, a declaration was sought that the said act of respondent No,1 is illegal and void and he be restrained from interfering with the right to do business of the petitioners. In its written statement, the respondent No,1 pleaded that the plot has been acquired in auction for selling eatables and only respondent No,1 is authorized to sell eatables. It was admitted that the said advertisement has been issued by the respondent No, 1 .
The respondents Nos.2 and 3 proceeded to state that they had not issued any licence to the hawkers. Along with the suit, an application for temporary injunction was filed which was also resisted. The learned trial Court dismissed the application vide order 5-4-2004 while a learned Additional District Judge, Multan dismissed the first appeal of the petitioners on 3-8-2004.
2. Learned counsel for the petitioners contends that the impugned orders have been passed in violation of the provisions of Article 18 of the Constitution of the country, read with Rule 8 of the Agricultural Produce Market (General) Rules, 1979. The precise contention is that in the absence of any legal or statutory requirements that the petitioners require a licence to do business in the Market, the Market Committee as well as its allottee i.e the respondent No,1 cannot interfere with the business of hawking by the petitioners. Learned counsel for the respondents, on the other hand contend that the petitioners cannot sell eatables in the Market in view of the express prohibition in section 4 of the Punjab Agricultural Produce Markets Ordinance, 1978.
3. I have examined the available copies of the records. It is anl admitted fact that the petitioners are hawkers and are hawking eatables in the said Market/Sabzi Mandi. Rule 8(c) of the said Rules of 1979 B specifically provides that hawkers who are not engaged in dealing of agricultural produce shall stand exempted from taking a licence.
4. Now section 4(4) of the said Ordinance of 1978, being relied upon, by the learned counsel for the respondents provides that no persons shall within the market, store, purchase, sell or in any other manner deal in any commodity which is not declared as agricultural produce. The said provision has to be read with the provisions for declaration of a notified market area as also specification of the agricultural produce under the C Ordinance. It does not at all mean that hawking of eatables in the Market area would not be allowed. If the interpretation being placed by the learned counsel for the respondents on the said section 4(4) of the Ordinance is accepted then the very allotment of the plot and setting up of a hotel therein by respondent No,1 itself will have to be declared illegal and void.
5. Now Article 18 of the Constitution vests the citizens of the country with an absolute right to conduct any lawful trade or business subject, of course, to its regulation in accordance with the proviso to the said Article. Now whereas rule 8 of the Rules of 1979 framed by the Provincial Government specifically exempts the hawkers from obtaining a licence provided they are not dealing in agricultural produce, there is no other statutory regulation imposing any condition upon the hawkers to sell eatables in the said market. There being no restriction prescribed either in the Ordinance or in the Rules framed thereunder, the respondents have no lawful authority whatsoever to cause any hindrance in the business of the petitioners-hawkers. The learned counsel for the petitioners has very correctly relied upon the case of A.Rshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193. The petitioners do have a prima facie, case and they are bound to suffer an irreparable loss in case the respondents interfere with the business 2f the hawkers in the Market/Sabzi Mandi. The balance of inconvenience is also in favour of the petitioners. The civil revision accordingly is allowed and both the impugned orders are set aside. The respondents are accordingly restrained from interfering with the business of the petitioners/hawkers in the Market/New Sabzi Mandi, Multan, pending the decision of the suit. No orders as to costs.
Revision allowed. FAISAL SHAHZAD and others---Respondents C.P. No,568 of 2003, decided on 31st January, 2005.
AFTAB AHMED SAEED---Petitioner Before Anwar. Zaheer aa J versus 2005 CLC 1668 [Karachi] Jam Sindh Rented Premises Ordinance (XVII of 1979)--- ----Ss. 2(F)(J), 14 &, 1'5(2)(ii)---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Ejectment of tenant on ground of default in payment of rent---Relationship of landlord and tenant---Petitioner vide lease deed duly executed in his favour was sole owner of the premises and respondent as per his own case was tenant in respect of one of the tenements of said premises---Definition of 'landlord' as given under S.2(f) of Sindh Rented Premises Ordinance, 1979, had made it clear that besides person who was authorized or entitled to receive rent of premises, every co-owner of premises was landlord---If one co-owner had not let out the premises, but some other co-owner or authorized person entitled to receive rent had let out, the property, by legal notion every co-owner of property would be deemed to be landlord and competent to maintain ejectment application on any ground available to him under S.14 or 15 of Sindh Rented Premises Ordinance, 1979, even without joining other co-owners as applicants, if otherwise such ground of ejectment was available to him---In the present case title/ownership of petitioner over property in question was based on registered lease deed and status of respondent as tenant in one of tenements was also not disputed, irrespective of any pending litigation between petitioner and his brother or other legal heirs of deceased original owner of premises---Relationship of landlord and tenant, in circumstances, was proved/established between petitioner and respondent---Concurrent judgments of Rent Controller and Appellate Authority, whereby ejectment petition by petitioner on ground of default in payment of rent was dismissed for the reason that, relationship of landlord and tenant did not exist between the parties; suffered from patent irregularity and misreading of evidence---Impugned order was set aside and case was remanded to Rent Controller to decide issue of default in payment of rent afresh after providing due opportunity of hearing to parties. [pp. 1672, 1673] A, B, C, D & E Kasim and another v. S. Rahim Shah 1990 SCM R 647 ref. K.A. Wahab for Petitioner. Ghulam Ghous for Respondents.
' Through this Constitutional petition, the petitioner has challenged the order, dated 30th November, 2002, passed by learned District Judge, Karachi (Central) in F.R.A. No,261 of 2001, whereby his appeal was dismissed and consequently, the order of Rent Controller dated 26-5- 2000, dismissing his Rent Application No,534 of 1999, for want of relationship of landlord and tenant between the parties was maintained.
1-A. Relevant facts gleaned from the case record are that the property bearing Plot No,13/8, Firdous Colony, Karachi, consisting of several commercial and residential tenements, was originally owned by one Saeed Ahmed Khan son of late Sher Muhammad Khan, who died at Karachi on 1-12-1980, leaving behind two sons, Aftab Ahmed (petitioner) and Khalil Ahmed, and four daughters Mst.
Sughra; Mst. Hajra, Mst. Jamila Begum and Mst. Roshan Jabeen, to inherit this property.
Subsequently, as per some family settlement, on 27-9-1986 all the legal heirs of deceased Saeed Ahmed Khan withdrew from their rights/shares in this property in favour of the petitioner, therefore, he got the registered lease deed of this property executed from the concerned authority in his exclusive name and claimed himself to be the exclusive owner and landlord of the whole property, including the tenement in possession of respondent No,1 as tenant.
2. On filing of ejectment application by the petitioner against respondent No,1, on the ground of default in the payment of rent from May, 1998, non-payment of maintenance charges amounting to Rs,750, K.M.C. Charges of Rs,1,470 and bills of other amenities, enjoyed by respondent No,1, he disputed the status of the petitioner as landlord. Respondent No,1 contended that the tenement in his possession was let out to him by Khalil Ahmed, brother of the petitioner, under written tenancy agreement, dated 1-8-1997, and he was regularly making payment of rent-and other charges to him. Thus, there was no default in the payment of rent etc. For any period as alleged by the petitioner. Challenging the status of the petitioner as landlord of the property respondent No,1 placed reliance upon another agreement dated 1-1-1986 purportedly executed between the petitioner and his brother Khalil Ahmed Khan, whereby Property No,13/8 Firdous Colony, Karachi was privately partitioned and Khalil Ahmed was shown to be the person, who will supervise and control the four flats, including the disputed tenements, until the daughters of late Saeed Ahmed claim their share in it.
3. During the proceedings of rent case, after recording of evidence, respondent No,3 (Rent Controller), while passing the order, dated 26-5-2000, framed points for determination relating to the existence of relationship of landlord and tenant between the parties and default. On assessm ent of evidence led by the parties, he came to the conclusion that there was no relationship of landlord and tenant between the parties, thus, the ejectment application was dismissed on that account.
4. Respondent No,2 (Appellate Court), in its impugned judgment dated 30-11-2002, concurred with the view of the Rent Controller, mainly on the ground that a dispute in respect of the title of the property was subsisting between the legal heirs of deceased Saeed Ahmed. Till such controversy was resolved, there was no relationship of landlord and tenant between the parties and the petitioner was not entitled to maintain the ejectment application.
4. Mr. K.A. Wahab, learned counsel for the petitioner, in his brief submissions, contended that after the demise of Saeed Ahmed Khan, the property had devolved upon all his legal heirs, including the petitioner and his brother Khalil Ahmed. Later on, the petitioner has purchased the share of his brother and sisters in the disputed property and on that basis the lease of the disputed property was executed by the concerned authority, the Government of Pakistan, Ministry of Works, Irrigation and Power, exclusively in his, name vide registered lease deed dated 26th November, 1988. He further contended that even if the tenement in question, was let out to the respondent No,1 by Khalil Ahmed the brother of the petitioner, under the tenancy agreement dated 1-8-1997, the petitioner being exclusive owner of the property is landlord of the property within the meaning of section 2(t) of the Sindh Rented Premises Ordinance, 1979, entitled to recover rent from the respondent No,1 and also to seek his ejectment on the ground of default or any other ground available under the provisions of Sindh Rented Premises Ordinance, 1979. He further contended that even, assuming for the argument sake, there had been no registered lease in favour of the petitioner, otherwise also, being co-owner of the property he is landlord of the property and thus, entitled, to maintain ejectment application against respondent No,1, who is admittedly tenant in respect of one of the tenements in the property. Learned counsel made reference to the case of Kasim and another v. S. Rahim Shah 1990 SCM R 647 and contended that even if there was/is some pending litigation in respect of title of the property then too till the title in favour of the petitioner, conferred through registered lease deed was not set aside by competent Court of law, for the purpose of Ejectment proceedings before the Rent Controller, he was deemed to be the owner and landlord of the property, and no adverse inference could have been drawn by the Rent Controller in this regard with reference to the pending litigation of title.
5. In reply to the above, Mr. Ghulam Ghous, learned counsel for respondent No,1, did not dispute the status of respondent No,1 as tenant in one of the tenements in the property. He, however, insisted that since the property was let out to him by Khalil Ahmed son of late Saeed Ahmed, the brother of the petitioner, therefore, only he was the landlord entitled to collect rent of the premises from respondent No,
1. He further contended that respondent No,1 has been regularly making payment of rent and other charges of the tenement in his possession to Mr. Khalil Ahmed, thus, no default has been committed by him in the payment of rent for any period. To fortify his case as regards the exclusive payment of rent to Khalil Ahmed, he also made reference to another agreement dated 1st January, 1986 executed between the petitioner and his brother Khalil Ahmed, which has authorized Khalil Ahmed to supervise and control the disputed tenement till share in the property is claimed by his sisters.
6. I have carefully considered the arguments advanced by the learned counsel and perused the material placed on record, which shows that vide registered lease deed dated 26th November, 1986 executed in the name of petitioner, presently he is sole owner of the Property bearing No,13/8, Firdous Colony, Karachi, and respondent No,1, as per his own case, is tenant in respect of one of the tenements of this property.
7. Reverting to the legal position, a bare reading of definition of word "landlord", given under section 2(f) of the Sindh Rented Premises Ordinance, 1979, makes it clear that besides person, who is authorized or entitled to receive rent of the premises, every co-owner of the premises is landlord.
Thus, if one co-owner has not let out the property, but some other co-owner or authorized person entitled to receive rent has let out the property, by legal notion every co-owner of the property shall be deemed to be the landlord, and competent to maintain ejectment application on any ground available to him under section 14 or section 15 of the Sindh Rented Premises Ordinance, 1979, even without joining other co-owners as applicants, if otherwise such ground of ejectment is available to him.
8. In the present case, when on one hand the title/ownership of the petitioner over the disputed property is based on registered lease deed which still holds good and on the other hand status of respondent No,1 as tenant in one of the tenements is also not disputed, irrespective of any pending litigation between the petitioner and his brother or other legal heirs of late Saeed Ahmed, relationship of landlord and tenant is proved/established between the petitioner and respondent No, 1.
9. The other question that whether in the facts and circumstances of the case payment of rent, if any, made by respondent No,1 to Khalil Ahmed could be considered bona fide payment of rent and would absolve him from the consequences of default, is another aspect of the case, which has not been touched or examined by the respondents Nos.2 and 3, I would, therefore, refrain from commenting upon this aspect of the case here for the first time. However, since the findings of the two Courts below, on the issue of relationship of landlord and tenant, contained in their impugned orders/judgments dated 26-5-2000 and 30th November, 2002 suffer from patent illegality and misreading of evidence, same cannot be sustained.
10. For the foregoing reasons, this petition is allowed, the orders/judgments dated 30th November, 2002 and 26th May of 2000 respectively passed by respondents Nos.2 and 3 are set aside, and the case is remanded to the Court of Rent Controller to decide the issue of default afresh after providing due opportunity of hearing to the parties.