It is stated that petitioner, while residing at Oslo, Norway, acting through his father Syed Yaqub Ali Shah, had rented out, his shop No. B--10/67, situated at Chowk Shah Daula Sahib, Gujrat to respondent No. 1 through a Rent Note dated 1-1-1975, marked as Exh. A/3. Subsequently, petitioner executed a general power of attorney on 26-9-1973 at Oslo, Norway and registered at Gujrat on 16- 1-1974, marked as Annexure A/1, authorising his father, Syed Yaqub Ali Shah, to "dispose of the property". On the basis of this power of attorney, a suit for ejectment of respondent No. 1 was instituted on 18-10-1981, but the same was withdrawn on 14-2-1982, with a permission to file fresh one, categorically saying that above mentioned power of attorney i.e. Annexure A/1 is defective, since the word "dispose of," used therein, does not include the right to rent out. Subsequently, a second power of attorney was executed on 22-2-1982, at Oslo, Norway, and registered at Gujrat on 14-3-1982. However, this second power of attorney is not on the file of the present petition, but is stated to be on the record of the Court below.
2. Ejectment petition, on the basis of second power of attorney, dated 14-3-1982, was filed before the learned Rent Controller, on 16-3-1982 being Case No. 32/82, by petitioner through his father acting as general attorney, against respondent No. 1, on grounds of default, sub-letting, deterioration of property and reconstruction. A copy of the ejectment petition is attached with the petition and is marked as Annexure `B'. Seven issues were framed other than "relief", which are set out herein--below: "(1) Is petition not maintainable in law?
(2) Was petition filed without proper authority?
(3) Whether respondents Nos. 2 and 3 were sub-tenants of respondent No. 1?
(4) Whether respondent No. 1 was defaulter in payment of rent?
(5) Whether respondent No. 1 violated the terms of tenancy?
(6) Whether respondent No. 1 has diminished the value of the shop in dispute?
(7) Whether shop in question is needed by petitioner in good faith for reconstruction?"
3. At the trial, issues Nos. 1 and 2 were decided in favour of petitioner, whereas issues Nos. 3, 4, 5 and 6 were not pressed, thus were decided against petitioner. Issue No. 7 was decided in favour of petitioner, and consequently, the learned Rent Controller vide his order dated 15-4-1985, marked as Annexure 'G' to the petition, allowed the ejectment petition and directed respondent No. 1 to vacate the premises after one month. This order of ejectment was appealed before the learned Additional District Judge, Gujrat in . Civil Appeal No. 94/85 dated 7-5-1985, and the same was decided vide judgment dated 26-10-1985, the impugned order in this petition. The learned appellate Court accepted the appeal and set aside findings of the trial Court on issue No. 1, and held that petitioner was not a landlord, thus was not competent to seek ejectment of respondent No. 1. Nothing was said as to issue No. 1. Since issues Nos. 3, 4, 5 and 6 were not pressed in arguments, therefore, the same remained undisturbed. However, in relation to issue No. 7, the learned Additional District Judge refrained from making any observations in view of the findings on issue No. 1. Hence the present petition.
4. The learned counsel for petitioner contends that the appellate Court has misinterpreted section 2(c) of the Punjab Urban Rent Restriction Ordinance, 1959, i.e. expression "landlord", and that both petitioner as well as petitioner's father (being his attorney) are landlords within the statutory definition; therefore, the finding on issue No. 1, in appeal reversed by the learned Additional District Judge is not in accordance with law. It was, further, contended that during continuation of tenancy, tenant is estopped from denying title of the landlord. It was also contended that without setting aside findings of the trial Court on issue No. 7, the appellate Court could not have accepted the appeal and lastly, that no finding has been given on issue No. 2 by the learned Additional District Judge, there--fore, the impugned order merits to be set aside.
5. Learned counsel for respondent, on the other hand, has raised a preliminary objection, that petitioner has not approached this Court with clean hands ; since he has suppressed material facts from this Court. It is stated that institution of the earlier petition for ejectment, its subsequent withdrawal, and the factum of first power of attorney dated 26-9-1973, has not been mentioned before the trial Court, whereas the second power of attorney which though has been relied upon before the trial Court and in the appeal, has not been mentioned in this petition. It has also been stated that respondent does not only deny title of petitioner but also his status as landlord and competency/locus standi to file the ejectment petition. It has also been stated that father of petitioner, Syed Yaqub Ali, has been receiving rent as landlord and not as attorney on behalf of Amjad Ali, whom the respondent has never met. Lastly, it has been argued that the learned Additional District Judge has fallen in error by not adverting to Issue No. 7, in view of the fact that in the grounds of appeal bona fide of petitioner for reconstruction has been specifically questioned, with material particularity and with full details specifically.
6. 1 have gone through the petition, the written statement, the petition for ejectment, reply filed before the trial Court, grounds of appeal and all the documents which were exhibited before the trial Court and are presently available on the file of this case, and have also heard arguments of the learned counsel for the parties.
7. Since the crucial question in this litigation, which goes to the root of its maintainability is as to whether petitioner falls within the statutory definition of "landlord", I advert to section 2(c) of the Punjab Urban Rent Restriction Ordinance, 1959, the text of which has been set out hereinunder :-- "2(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 the title under a landlord."
A perusal of the above reveals that the rubric to this clause is the expression "entitled". The intention of the framers of this piece of legislation is clearly beyond any ambiguity that a person to be a landlord within the meanings of the above clause is not restricted to a person who actually receives rent, but it also contemplates within its ambit, a person who is eligible to receive rent though he might have never in fact received rent in the past. To illustrate this point, one may say that, an attorney, an estate Manager, owner, co-owners etc. Are the persons who simultaneously at a given point of time, are entitled to receive rent and thus are landlords.
8. In this particular case, Rent Note dated 1-1-1975, Exh. A/3 start with a word.This has been signed by respondent and duly witnessed. The text preconceives the notion that both A Amjad Ali as well as Syed Yaqub Ali are entitled to receive rent, the former in the capacity of landlord, and the latter in the capacity of attorney. This status was accepted by virtue of the Rent Note having been executed and acted upon by the parties, right up til now as the basis of the tenancy. Therefore, I am of the opinion that both Syed Amjad Ali as well as Syed Yaqub Ali, fall within the statutory expression of "landlords" a defined above and thus are entitled jointly as well as severally to institute ejectment proceedings ; since respondent as stated above from the inception of the tenancy had acknowledged the status of Syed Yaqub Ali as attorne and that of petitioner as landlord. In this view of the matter, I set aside the finding of the learned Additional District Judge on Issue No. I and hold that petitioner is a landlord within the meaning of section 2(c) of the Punjab Urban Rent Restriction Ordinance, 1959 ; and consequently, hold that the ejectment petition was competently instituted. The learned counsel for respondent has categorically made a statement that title of petitioner is not disputed ; therefore, this point need not to be perused any P further.
9. The learned Additional District Judge, erroneously, did not advert to Issue No. 2 ; however, in view of findings on Issue No. 1, I am of the opinion that this issue was rightly decided by the learned Rent Controller in favour of petitioner.
10. Lastly, coming to Issue No. 7, I may say that the learned Additional District Judge has not acted in accordance with law by not giving a categorical finding on Issue No. 7, which he was obliged in view of the fact that it was specifically urged before him in the grounds of appeal with particularity, since there is only one appeal available and respondents) cannot be denied the right of appeal in this manner.
11. Before parting, I may advert to the argument advanced by the learned counsel for respondents as to suppression of facts. The learned counsel for petitioner conceded at the Bar that it is a bona fide omission on his part having not stated these matters in the writ petition. This practice, however, is not appreciated.
12. Having held that the ejectment petition was competently institu--ted, I remand the case to the learned Additional District Judge, Gujrat, who shall summon the parties and decide Issue No. 7 on merits. There shall E be no order as to costs.