This is an appeal under Sind Rented Premises Ordinance, 1979, read with section 2 (2) of Military Courts (Validation of Orders) Ordinance (1 of 1980) against the decision of the Summary Military Court 'C' at Karachi.
2. The brief facts of the case are that the appellant is the tenant of Miss Najma Faruqi the respondent No. 2 in respect of the Horse No. 71-B, Block-W, Iqbal Town, North Nazimabad, Karachi since 1969.
It appears that the respondent No. 1 Zeenat Faruqi (who is the mother of the lessor i.e. Respondent No. 2) made an application under M. L. O. 20 to the Martial Law Administrator, Zone 'C', Karachi for ejectment of the appellant from the above-mentioned house on the ground that she is an old lady whose husband has died and that she is dependent on her 'daughter Miss Najma Faruqi (i.e. The lessor) and that they had rented the above house to the appellant abovenamed who has stopped paying rent since July, 1976. She further stated that she was a sick lady unable to climb third floor where she was residing. She accordingly prayed that the appellant may be ordered to vacate the bungalow as she required the bungalow for her personal use. She also prayed that the appellant/tenant be directed to pay the arrears of rent amounting to Rs.7,500. A copy of this application has been produced which does not show under what law this application has been filed but it appears that it was treated as an application under M. L. O. 20 and accordingly the- application was referred to the Military Court by the Martial Law Administrator. Thereafter a notice dated 6th October, 1977 was issued to the Respondent No. 1, Zeenat Faruqi and the appellant by the Summary Military Court constituted under M. L. O. 20 for deciding disputes between the landlords and tenants. The aforesaid notice is reproduced herein below.
"Subject: Petition of Mst. Zeenat Faruqi under M. L.O. 20.
Whereas the petition cited as subject has been fixed for hearing disposal on the 19th day of October, 1977 at 800 firs ; you are hereby sum--moned to appear in the Court alongwith relevant documents/evidence upon which you intend to rely in your support or defence in relations to the said petition.
Take notice that, in default of your appearance on the day mentioned above, the petition will be heard and decided in your absence."
3. The appellant appeared before the Summary Military Court pursuant to the aforesaid notice and contested the matter. The respondent No. I (Zeenat Faruqi) did not appear. Miss Najma Faruqi, the respondent No. 2 however attended the proceedings and conceded that she was the lessor of the said house and not the respondent No. 1.
It further appears that the Respondent No. 2 in the meantime had also filed a separate application dated 21st September, 1977 under M.L.O. 20 praying for ejectment of the appellant on the ground that she required the bungalow for her personal use, as her mother is sick and needs medical treatment and that the appellant was in arrears of rent since July, 1976 amounting to Rs.7,500.
It may be added here that it is admitted by Mr. Zafar Hadi Shah the learned Advocate for the respondents that neither any notice of the application filed by the respondent No. 2 Miss Najma Faruqi was ever given to the appellant as required by Article 5(a) of M. L. O. 20 nor the said applica- -tion was fixed for inquiry pursuant to the provisions of Article 5(b) of the aforesaid M. L. O.
The Summary Military Court on 24-10-1977 passed the impugned order which reads as follows :- "Taken all these matters into consideration t now order the Syed Shahid Hassan, son of Syed Riazul Hasan to hand over vacant possession of House 71-B, Block W. Iqbal Town, North Nazimabad, Karachi and clear all outstanding dues to the owner Miss Najma Farooqi by 1st January, 1978. For any wilful damage caused to the aforesaid pre--mises before vacation, the tenant shall be liable to make good such damage/loss when proved."
4. The appellant filed a revision petition as provided under M. L. O. 20 before the Martial Law Administrator Zone C and obtained temporary stay of the execution of the aforesaid order. As the stay order was due to expire on 30th April, 1978, and the said authority declined to grant further stay the appellant filed C. P. No. D-683 of 1978 in this Court which is still pending. In the meantime the Military Courts Validation of Orders Ordinance (Sind Ordinance No. I of 1980) was promulgated on 19th January, 1980, validating certain orders passed by the Military Courts and also provided appeal against the orders passed under M. L. O.
20. The relevant section 2 for the purposes of this appeal is reproduced hereinbelow for reference :- "2. Validation of certain orders, etc.-(1) Notwithstanding any order, judgment or decision of any Court, an order passed by a Military Court at any time on or after sixteenth day of August, 1977, in any proceed--ings under Martial Law Order No. 20 made by the Martial Law Administrator Zone 'C' shall be deemed to have been passed under the Sind Rented Premises Ordinance, 1979, as if the said Ordinance were in force at the time when such order was passed and shall have, and shall be deemed always to have had effect accordingly.
(2) Any person aggrieved by any such order as is referred to in sub-sec--tion(1) may, within thirty days of the commencement of this Ordinance, prefer an appeal to the High Court."
5. The appellant abovenamed accordingly filed this appeal on 14-2-1980 challenging the impugned order under section 2(2) of Sind Ordinance No. I of 1980 mentioned above.
6. The learned counsel for the appellant, Mr. Hasan Akbar, contended that the impugned orders passed on 24th October, 1977 directing the appel--lant to deliver possession of the aforesaid house to the respondent No. 2 is against the principles of natural justice. The submission of the learned counsel is that neither any notice of the application filed by respondent No. 2 under M. L. O. 20 was ever served upon the appellant nor he had any opportunity to show cause against any such application and that no enquiry was ever held in the case filed by the respondent No. 2 as contemplated by M. L. O. 20 before passing of the impugned order in favour of the respondent No. 2.
"2. A dispute, as is referred to them by Martial Law Administrator under the Sind Urban Rent Restriction Ordinance, 1959, and the Canton--ments Rent Restriction Ordinance 1965, between the tenant and land--lord of a building situated in Karachi and Hyderabad in the cases shall be decided by the Summary Military Courts specially empowered in this behalf
(a) Where the landlord is a retired Government servant and requires the building for his own use or the use of his dependents;
(b) Where the landlord is a widow and requires the building for her own use ;
(c) Where a tenant has unauthorisedly occupied or sublet the building for any purpose other than residential ;
(d) Where the landlord uses any means to harass the tenant with a view to secure ejectment or enhancement of rent ;
(e) Where a person has unauthorisedly occupied or sublet a building owned by an autonomous or semi-autonomous body ; (f ) Where the agreement between the landlord and the tenant has already terminated.
3. (a) A petition in respect of the above cases shall be submitted by the person concerned to the Martial Law Administrator.
(b) Every such petition shall-
(1) state briefly the facts constituting cause of action and the date when it arises ;
(2) state relief claimed and grounds therefore ;
(3) state full name and address of the parties."
Article .2 as would be seen above expressly lays down that only those disputes could be taken cognizance of under M. L. O. 20 which are between the tenant and landlord of a building situated in Karachi and Hyderabad, while Article 3 provides that the petition m the above cases shall be submitted by the party concerned to the Martial Law Administrator which shall contain the following particulars "(h) Every such petition shall
(1) State briefly the facts constituting cause of action and the date when it arises;
(2) State the relief claimed and grounds therefore;
(3) State full name and address of the parties."
7. The procedure to be followed on receipt of petition is prescribed by Articles 4, 5 and 6 which may also be reproduced hereunder to appreciate the arguments advanced by the learned counsel for the parties :- "4. On receipt of the petition, the Martial Law Administrator or any person authorised by him in this behalf, shall scrutinize and if con--sidered necessary, refer the same to the Military Court for disposal.
5. (a) The Military Court shall enquire into the case and for the purpose issue notices to the parties concerned for appearing before it on the date mentioned in such notices.
(b) The Military Court may examine such oral or documentary evidence in support of the petition or in defence of the opposite-party as may be considered necessary.
6. The Military Court shall on the conclusion of the proceedings give its findings."
Against an order passed by a Military Court, an aggrieved party could submit a revision petition before the Martial Law Administrator under Article 8 within seven days of the passing of the said order. No other or further remedy was provided under M. L. O. 20 against .The order passed under M.
L. O. 20 as originally constituted.
However on 19-1-1980 as already noticed above Sind Ordinance No. I of 1980 was promulgated and by virtue of section 2(2) thereof an appeal to the High Court has been provided against the orders passed under M. L. O.
20. It is not disputed that the present appeal has been competently filed in this Court.
8. The main submission of the learned counsel for appellant is that the only case of which the appellant received notice under Article 5 of M.L.O. 20 was that of the application filed by the respondent No. 1 and that she is not the landlord within the meaning of Article 2 of M. L. O. 20 under which a dispute between the tenant and landlord of a building situated in Karachi and Hyderabad alone could be entertained - and decided by a Military Court.
Section 2 (c) of the Ordinance of 1959 defines "Landlord" as follows "(c) "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 or as a trustee guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter -authorised and every person from time to time deriving title under a landlord"
And section 2 (f) of Sind Ordinance reads as follows :- "(f ) "Landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises :-
9. Considered in the light of the above "definitions in both the Ordi--nances in the absence of anything contrary in M. L. O. 20, it would be seen that the Respondent No. 1, is not the landlord of the premises in dispute. She neither claims to be the owner of the property nor she is a person authorized or entitled to receive rent from the appellant for the time being in respect of the premises in dispute. The Respondent No. 1 therefore, cannot be treated as a party concerned entitled to move the Martial Law Administrator under Article 3 of M. L. O. 20 for eviction of the appellant/tenant, Reference may here be made to the case of Miss L Ali Muhammad v.
Muhammad Shafiq (PLD 1971 SC 494) where the Hon'ble Supreme Court observed as follows :- "The trust is not, in any way, concerned with the running of a clinic by the appellant in her individual capacity. Accordingly although the appellant as trustee is still the landlord, the requirement of the shop for her use as a clinic cannot be said to be a requirement of the shop for the use of the trustee as landlord. This will be all the more clear if we take the case of a receiver. A receiver appointed by a Court for the management of a tenanted premises is also a "Landlord" according to its definition in section 2 (c). Such a receiver, by the very nature of his appointment, is only to manage the premises and not to use it himself. That being so, the receiver in spite of his being the landlord, cannot maintain an action for ejectment of the tenant on the ground that he requires the premises for his personal use. It is thus clear that the ground for ejectment in this case, namely, bona fide requirement of the disputed shop for the landlord's own use as provided in section 13 (3)
(a) (if), does no more subsist."
The above observations fully supports the case of the appellant that the respondent No. 1 had no locus standi to file the application for his ejectment. This would be so in spite of the fact that the respondent No. 1 is the mother of the respondent No. 2, the former having no privity of contract with the appellant and thus had no right to enforce any of the covenants between the appellant and the respondent No. 2.
10. The learned counsel for the respondents, however, submitted that the respondent No. 2 had also moved a separate application for eviction of the appellant under M. L. O. 20 in which she expressly prayed for his eviction on the ground that she is the owner of the building in question and that the lease agreement with the appellant had expired on 15-9-19701 that the appel--lant/tenant neither paid the rent amounting to Rs.7,500 nor vacated the said premises in spite of the fact that she required the premises for her personal use.
The learned counsel, however, frankly admitted that no notice of this application filed by the respondent No. 2 was given to the appellant. He was also unable to state that the application filed by the respondent No. 2 was ever fixed for hearing or inquiry as required by Article 5 of M. L. O. 20 or.
If any order whatsoever was passed on her application. .
11. From the perusal of the show-cause notice dated 6th October, 1977, received by the appellant from the Summary Military Court which has been reproduced above, it is evident that the only case which was fixed for hearing on 19th October, 1977, and upon which the order was passed w that of Mst. Zeenat Faruqi, the respondent No. 1 whereby the appellant was directed to deliver possession of the said property to the respondent No. 2. This order, therefore, cannot be considered to be in accordance with the provisions of M. L. O. 20.
No other point has been urged. The appeal, in the circumstances is allowed but with no order as to costs.
12. I would like to clarify that this appeal has been allowed on technical ground and shall not be construed in any manner as a decision on the merits or affect the rights of the respondent No. 2 to move the appropriate Court according to law.