MUHAMMAD SADIQ LEGHARI, J.--- Through present constitutional petition concurrent decisions recorded by IVth Rent Controller, Karachi-West in Rent Case No.128 of 2001 and by IVth Additional District Judge, Karachi-West in F.R.A. No.46 of 2003 have been attacked.
2. The facts of the case are that petitioner Syed Mehboob Hussain is owner of House No.25/50, Sector 10, Afridi Colony, Orangi Town, Police Station Mominabad, Karachi. Respondent Raza Shah is occupying part of that house (hereinafter referred to as "the disputed premises") since, 1992. The owner of the house/petitioner claims him to be occupying the disputed premises as tenant at the rate of Rs.1200 per month payable on or before 10th of each English calendar month, whereas case of Raza Shah is that his possession is in pursuance of an agreement of sale between him and the petitioner.
3. On 5-7-2001 petitioner Syed Mahboob Hussain filed Rent Case No.128 of 2001 against Raza Shah for his ejectment on the ground of default stating that the respondent/opponent had stopped payment of rent from June, 1992 and is continuing his illegal and unlawful possession over the premises.
4. Raza Shah, the respondent/opponent resisted the rent case and filed written statement denying therein the relationship of landlord and tenant between him and the petitioner/applicant. He claimed his possession over the disputed premises to be in pursuance of an agreement without stating anything further about the nature of agreement and terms thereof.
5. After recording the evidence the learned Rent Controller dismissed the rent case by his judgment dated 27-5-2003 giving his finding that no relationship of landlord and tenant was established. The Appellate Authority/IVth Additional District Judge, Karachi-West concurred with the learned Rent Controller vide judgment, dated 30-9-2004 in F.R.A. 46 of 2003. Those decisions have been assailed through present petition.
6. After hearing the arguments the judgment was reserved. Now I proceed to record the same.
7. Mr. Chaudhry Iqbal appearing for the petitioner argued that although the learned two Courts below rightly did not attach any weight to the plea of Raza Shah respondent about so-called purchase of the disputed premises but they wrongly held that the petitioner had failed to establish the relationship of landlord and tenant between him and respondent Raza Shah. Continuing with his arguments Mr. Chaudhry contended that since Raza Shah has no legal right over the disputed premises, the evidence of petitioner that he (Raza Shah) came into possession of these premises as tenant at the rate of Rs.1200 per month should have been accepted.
8. Mr. Chaudhry next contended the facts that the petitioner is owner of the disputed premises and the respondent No.1 is occupying them without his legal right are sufficient for drawing the conclusion that the said occupant of the disputed premises is bound to pay rent as consideration for occupation of the premises by him. In continuity Mr.. Chaudhry stated that such occupant of the premises acquires the status of tenant. He referred to the definition of tenant in clause (j) of section 2 of SRPO, 1979. In support of this view the learned Advocate referred to two decisions of this Court one in case of Muhammad Shabber and others v. Mst. Hamida Begum reported in 1992 M LD 323 and the other in the case of Saifullah and others reported 2000 CLC 1841. According to Mr. Chaudhry the respondent No.1 is tenant in respect of the disputed premises by implication of law, therefore, the learned two Courts below should have ordered his eviction on the basis of admitted position that he is not paying the rent.
9. Mr. Raja Muhammad Aslam Kiyani appearing for respondent Raza Shah defended the impugned decisions saying that except oral word of the petitioner no evidence was produced to prove the relationship, therefore, the learned two Courts below have rightly held that the relationship was not established. Mr. Kiyanai further contended that the interpretation of the definition of "tenant" given by Mr. Chaudhry the petitioner's learned Advocate is not correct as tenant is only that who occupies the premises in that capacity and not a person who is occupying the premises in any other capacity.
10. Petitioner Syed Mahboob Hussain is owner of the disputed premises and respondent Raza Shah is occupant thereof. Since the petitioner claims the respondent No.1 to be tenant it was for him to establish the relationship of landlord and tenant between him and Raza Shah. He produced oral evidence, which was denied by the respondent orally. No such evidence was produced which could prove the entry of respondent No.1 in the disputed premises as tenant or payment of rent by him at some later stage. Thus, the Courts below have rightly held that the entry of Raza Shah in the disputed premises as tenant or his acknowledgment to the petitioner/owner as his landlord was not established through evidence.
11. As regards the existence of relationship of landlord and tenant by implication of law Mr. Chaudhry has only referred to the definition of "tenant" in clause (j) of section 2 of SRPO. For its proper understanding the definition is reproduced below:-- "Section 2(j) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes--
(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;
(ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant."
According to this definition "tenant" is a person who undertakes or is bound to pay rent as consideration for possession or occupation of any premises by him or by any other person on his behalf and includes any person who continues to be in possession or occupation of "premises" after termination of his tenancy, and heirs of tenant in possession or occupation of premises after death of tenant. Obviously the premises referred to in the above definition mean the premises coming within the scope of Sindh Rented Premises Ordinance, 1979 and not out of that. For knowing as to what premises come within the scope of the Ordinance the definition of premises in clause
(h) of section 2 of the Sindh Rented Premises Ordinance, 1979 is to be looked at. It reads as under:-- - Section 2(h) "Premises" means building or land, let out on rent, but does not include a hotel.
Under this definition "Premises" are only those buildings or lands which have been let out on rent.
Hotel has been excluded from such buildings or land. Obviously the premises which have not been let out on rent do not come within the purview of Sindh Rented Premises Ordinance, 1979. The occupant of such premises does not acquire the status of tenant by implication of law. Merely for being the occupant without any legal claim he cannot become tenant of the owners in respect of, the premises in his occupation. It has to be kept in mind that by recognizing such an occupant as the tenant all the legal rights and protections given by the law to the tenant will stand automatically conferred upon him. That is not the scheme of the Sindh Rented Premises Ordinance, 1979.
12. Relationship of landlord and tenant (tenancy) is combination of three components namely; premises, landlord and tenant. Unless these three as defined in Sindh Rented Premises Ordinance, 1979 are present there is no tenancy. In view of this legal position I am unable to agree with the view expressed on this point by the Honourable Benches in the decisions referred to by the petitioner's learned counsel.
13. Since the relationship of tenant and landlord has not been established in present case the decisions of the learned two Courts below do not call for interference by this Court in exercise of the constitutional jurisdiction. Consequently, the petition fails and is dismissed at Katcha Peshi stage.