' FAISAL ARAB, J.---In March, 2006 the respondents Nos.1 and 2 filed eviction application against the petitioner claiming that the petitioner has committed default in the payment of monthly rent from February, 2004 and onwards, in spite of receiving the notice for change of ownership in their favour.
Along with the eviction application, the respondent No,1 and 2 also filed an application under section 16(1) of Sindh Rented Premises Ordinance, 1979 seeking deposit of rent from February, 2004 to March, 2006 @ Rs,22,898 as well as a direction for deposit of water charges @ Rs,994 per month for the period from 2000 to 2006 amounting to Rs,24,850, KPT ground rent from 2000 to 2006 amounting to Rs,23,775 and properly tax @ Rs,1,590 from 2000 to 2006 amounting to Rs,39,750.
2. The petitioner filed objections to the application filed under section 16(1) of Sindh Rented Premises Ordinance, 1979 and claimed that the rent upto February, 2004 was paid to the previous landlord and subsequently all rents from March, 2004 onwards are being deposited in MRC No,61 of 2004, which are also being withdrawn by the respondents Nos.1 and 2.
3. The Rent Controller passed rent order dated 25-1-2007 under section 16(1) of Sindh Rented Premises Ordinance, 1979 holding that all past rents have been deposited in MRC, which have also been withdrawn by the respondent No,1 and 2 and therefore all future rents from November, 2007 and onwards be deposited in the present case on or before 10th of each calendar month and with regard to the claim of deposit of water charges, KPT ground rent and property tax, the same shall be decided after the evidence is led by the parties.
4. The respondents Nos.1 and 2 then filed application under section 16(2) of Sindh Rented Premises Ordinance, 1979 seeking striking off the defence of petitioner on the ground that the rents for the months of December, 2007, January, 2008 and June, 2008, have not been deposited within the prescribed time.
5. The petitioner resisted the application under section 16(2) of Sindh Rented Premises Ordinance, 1979 by filing counter-affidavit, wherein they have alleged that the rent is being deposited regularly and the delay occurred only on account of the fact that the bank, after receiving the pay order, takes two days time for its confirmation and only thereafter used to issue receipt, hence two days that were consumed by the bank in the confirmation process cannot be attributed to the petitioner, therefore no default in the payment of rent has been committed.
6. The ledger extract of rent deposits shows that the rent for the month of December, 2007 was deposited on 12-12-2007, the rent for the month of January, 2008 on 12-1-2008 and the rent for the month of June, 2008 on 12-6-2008. The Rent Controller struck off the defence of the petitioner on the ground that the rent was required to be deposited on 10th of each calendar month. Since it was claimed by the petitioner that the pay orders were got issued on 10th and it was the bank, which sought their confirmation that caused two days delay and this fact has not been rebutted by the respondents No,1 and 2, the Rent Controller ought to have accepted such explanation and resultant two days delay ought to have been condoned. Hence, I am of the opinion that there was no default in payment of rent on the part of the petitioner. The findings of both the Courts below are not justified and liable to be reversed.
7. The learned counsel for the petitioner has also argued that in view of Notification issued by the Government of Sindh under section 3(2) of Sindh Rented Premises Ordinance, 1979, the premises in question stand exempted from the application of the 1979 Ordinance and, therefore, Rent Controller had no jurisdiction to entertain eviction application. In support of this contention, learned counsel for the petitioner has relied upon the case of B.S. Khan v. Pakistan State Oil Company reported in 1989 SCM R 75. He further contended that the eviction application has been filed by Respondent No,1 and 2 on the basis of decision of the Supreme Court in the case of Lalazar Enterprises Pvt. Ltd. v.
Oceanic International Pvt. Ltd. Reported in 2006 SCM R 140 but as the said judgment of two judges is in conflict with the decision of the earlier judgment reported in 1989 SCM R 75, which was delivered by three Judges, the judgment reported in 1989 SCM R 75 continue to hold the field and the Rent Controller ought to have dismissed the rent cases as not maintainable. Learned counsel also relied upon the judgment reported in 1999 SCM R 2518, wherein it has been held that if there is conflict between two judgments of the Supreme Court then the judgment delivered by a larger Bench shall prevail.
8. Section 3(2) of the Sindh Rented Premises Ordinance, 1979 empowers the Government to exempt through notification any particular building or class of building or rented land or lands from the application of 1979 Ordinance. Pursuant to such powers, the Government of Sindh issued Notification No,VIII (3) SOJ/75 on 15-3-1981, which is reproduced as follows:-- "In exercise of the powers conferred by subsection (2) of section 3 of the Sindh Rented Premises Ordinance, 1979, and in supersession of all orders issued previously, the Government of Sindh is pleased to exempt the premises belonging to Karachi Port Trust, Karachi from the application of the said Ordinance."
9. Through this notification all premises belonging to Karachi Port Trust were given immunity from the operation of Sindh Rented Premises Ordinance, 1979. Now the question that needs to be addressed in these and others connected cases is whether the above referred notification grants immunity also to building and other constructions, which are though built on the land belonging to Karachi Port Trust but are not owned by Karachi Port Trust but by the lessees of Karachi Port Trust.
10. The Karachi Port Trust grants leases of open lands to individuals and other entitles usually for a term of 25 years. Depending upon the terms of the lease, the lessee utilizes the land either as an open plot or raises construction of a permanent nature. A lessee may, either rent out the land as it is to a third party or he does so after raising building thereon. The grant of lease by Karachi Port Trust and renting out of the building by the lessee are two separate and independent situations. In the first situation Karachi Port Trust is owner of the land and in the second the lessee is owner of the building. Both the situations given rise to the concept to dual ownership. One of the Karachi Port Trust and the other of the owner of the building and this concept has to be given due recognition as two separate legal implications are associated with it. If this concept of dual ownership is ignored and the lessee's ownership of the building is considered to be non-existent then no basis would be left for the tenant to regard him as owner. Such cannot be the intent behind section 3 of the 1979 Ordinance and the notification issued behind section 3 of the 1979 Ordinance and the notification issued thereunder. Thus the ownership of Karachi Port Trust in the land has no relevance, when it comes to exercising ownership rights of the lessee in the building constructed on the land owned by Karachi Port Trust. Thereafter the exemption granted under the notification has no application when a dispute arises between a lessee who owns the building and the person who occupies it as tenant.
11. The Supreme Court in Lalazar's case reported in 2006 SCM R 140 after examining the interpretation given in 1989 SCM R 75 held that in the said case exemption under the notification was extended only for the reason that in the case reported in 1989 SCM R 75 the premises was an open plot and when a premises is an open piece of land, a portion of the plot or an open ground then the exemption becomes applicable but it shall not be applicable to premises which is built by the lessee on the land leased out by Karachi Port Trust. On the basis of such interpretation of the Supreme Court in Lalazar's case reported in 1989 SCM R 75 was distinguished.
12. When the Supreme Court of Pakistan interprets the effect of any provision of the Constitution or a law or its own judgment, it becomes law of the land. When the Supreme Court interprets the legal effect of its earlier judgment in a certain manner then it is no open to the High Court to differ from such interpretation. All Courts have to examine a controversy in the light of such interpretation unless the Supreme Court itself overrules it through its subsequent decision. As long as a judgment of the Supreme Court stands, it has to be given effect to by all Courts including the High Courts. The judgment in Lalazar's case reported in 2006 SCM R 140 was delivered by the Supreme Court on 20- 10-2005 and since then it reflects the intent behind issuance of Notification No,VIII(3)SOJ/75 dated 15-3-81. The respondents Nos.1 and 2 filed rent cases in the year 2006. Thus on the date of filing of the Rent Cases, the meaning that this Court can give effect to section 3(2) of the Sindh Rented Premises Ordinance, 1979 would be as interpreted by the Supreme Court in Lalazar's case being the law of the land and it matters not that prior to Lalazar's case, the respondents Nos. 1 and 2 have themselves taken a different position in their earlier legal proceedings. A party through its conduct could neither confer nor take away jurisdiction of a Court which is to be purely determined in accordance with the law that for the time being regulate the jurisdiction. For the purposes of the present case, it is the Lalazar's case which holds the field since 20-10-2005 and gives answer to the applicability of the notification. Therefore, interpretation given in Lalazar's case is to be applied to all these cases.
13. The applicability of Sindh Rented Premises Ordinance, 1979 to the present case can be examined from yet another angle also. Section 3(1) the 1979 Ordinance exempts such premises from the applicability of the 1979 Ordinance which are owned by the Federal or a Provincial Government. The Notification that was issued under section 3(2) also provides that all premises belonging to Karachi Port Trust are exempted from application of Sindh Rented Premises Ordinance, 1979. If the exemption granted under the notification dated 15-3-1981 was also to be applied to the building which is constructed on the land leased out by Karachi Port Trust then similar interpretation under section 3(1) of the 1979 Ordinance would become applicable to the buildings that are constructed on lands leased out by the Federal or a Provincial Government. Such a strict interpretation of ownership would lead to disastrous consequences as the concept of ownership if taken only in its etymological sense would then mean that the buildings that are built by lessees on the land leased by Federal and the Provincial Government have to be exempted from the application of Sindh Rented Premises Ordinance, 1979. Almost all buildings in urban areas would then come under the umbrella of exemption as they are mostly built on the lands owned either by federal government or provincial governments. This would amount to doing violence to the meaning of ownership. Under section 3(2) read with the Notification dated 15-3-1981 one cannot give different interpretation to the meaning to the ownership of a premises which is built by a lessee on the land owned by the federal or a provincial government. This was not the intention of the lawmakers while enacting provisions of section 3(1) and 3(2) of the Sindh Rented Premises Ordinance, 1979. Therefore, the concept of ownership as provided in the Notification issued on 15-3-1981 under section 3(2) of the 1979 Ordinance is to be given the same restricted meaning that is being given to the concept of ownership under section 3(1) of the 1979 Ordinance.
14. This concept of dual ownership has also been very aptly discussed by the Indian Supreme Court in the case of Smt. Shanti Sharma v. Smt. Ved Prabha reported in AIR 1987 SC 2028. In this case it was held that the term "owner" not only include to be the person who holds absolute ownership in the land but also include a person who on the strength of a long lease of a piece of land from the authority constituted by the State owns superstructure that has been build on the leased land. It would be worthwhile to reproduce here paragraphs 13 and 14 of the said judgment in order to examine the concept of duel ownership:--
13. Admittedly if this contention of the learned counsel for the appellant is accepted in Delhi more than 50% of the properties stand on leasehold plots and therefore it would not be possible for any landlord to seek an order or decree for eviction on the ground of bona fide requirement. It appears that it is therefore clear that if the Legislature had this narrow meaning of ownership in mind, it would not have used it, as it could not be contended that the Legislature did not keep in view that in most of the modern township in India the properties stand on plots of land lease out either by the Govt. Or the Development Authorities and therefore it was not contemplated that for all such properties the landlord or the owner of the property used in common parlance will not be entitled to eviction on the ground of bona fide requirement and it is in this context that we have to examine this contention.
14. The word 'owner' has not been defined in this Act and the word `owner' has also not been defined in the Transfer of Property Act. The contention of the learned counsel for the appellant appears to be that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the person who holds properties will only be lessees or the persons holding the land on some term from the Govt. Or the authorities constituted by the State and in this view of the matter it could not be thought of that the Legislature when it used the term `owner' in the provision of S.14 (1) (e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. This Act has been enacted for protection of the tenants.
But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant. In the context, the phrase 'owner' thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only thing necessary for him to prove is bona fide requirement and that he is the owner thereof. In this context, what appears to be the meaning of the term 'owner' is vis-a-vis the tenant i,e, the owner should be something more than the tenant.
Admittedly in these cases where the plot of land is taken on lease the structure is built by the landlord and admittedly he is the owner of the structure. So far as the land is concerned he holds a long lease and in this view of the matter as against the tenant it could not be doubted that he will fall within the ambit of the meaning of the term 'owner' as is contemplated under this section. This term came up for consideration before the Delhi High Court and it was also in reference to S.14(1)
(e) and it was held by the Delhi High Court in T.C. Rekhi v. Smt. Usha Gujaral, 1971 Ren. CJ 22 of p. 326 as under:-- "The word 'owner' as used in this clause has to be construed in the background of the purpose and object of enacting it. The use of the word 'owner' in this clause seems to me to have been inspired by the definition of the word 'landlord' as contained in S.2(e) of the Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any other person. Construed in the context in which the word `owner' is used in Cl.(e) it seems to me to include all persons in the position of Smt. Ushal Gujral who have taken a long lease of sites from the Government for the purpose of building house thereon. The concept of ownership seems now to be eclipsed by its social and political significance and the idea of ownership, in case like the present is one of the better right to be in possession and to obtain it. To accede to the contention raised by Shri Kapur would virtually nullify the effect of Cl.(e) and would render all such landlords remediless against tenants however badly they may need the premises for their own personal residence. I do not think such a result was intended by the Legislature and I repeal the appellant's contention. I consider it proper before passing on the next challenge to point out that the word 'owner' as used in Cl.(e) in S.14(1) does not postulate absolute ownership in the sense that he has an absolutely unrestricted right to deal with the property as he likes. To describe some one as owner, and perhaps even as an absolute owner of property is to say two things; it is to assert that his title to the property is indisputable and that he has all the rights of ownership allowed by the legal system in question. Rights of ownership may, therefore, be limited by special provisions of law and include in those provisions such as are in force in New Delhi according to which citizens are granted long leases of sites for constructing buildings thereon. Now the words of a statute, though normally construed in their ordinary meaning may contain inherit restrictions due to their subject-matter and object and the occasion on which and the circumstances with reference to which they are used. They call for construction in the light of their context rather than in what may be either their strict etymological sense or their popular meaning apart from the context (See Halsbury's Laws of England Third Edition Vol., 36 Para 893, p.394). The meaning of the word 'owner' in Cl. (e) is influenced and controlled by its context and the appellant's construction is unacceptable because it seems to be quite clearly contrary to the reasonable operation of the statutory provision."
15. In view of the above discussion it is absolutely clear that exemption granted under the notification issued under section 3(2) of the Sindh Rented Premises Ordinance is not attracted when the lessee of Karachi Port Trust after raising construction of permanent nature rents it out to a third party.
16. As no default in the deposit of rent has been committed, this petition is allowed and the impugned judgment is set aside. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.