1. These two First Rent Appeals bearing Nos.893/1984 and 894/1984 are directed against the orders dated 15-8-1984, of XVth Senior Civil Judge and Rent Controller, Karachi, whereby the Rent Controller has allowed the rent applications bearing Nos.698/1971 and 699/1971, of Mst. Zohra Bai, landlady.
2. Mst. Zohra Bai is a landlady of Plot No.511/4/G. R.E., by virtue of P.T.O. No.18362,dated 22-9-1964, and P.T.D. No.KYC-3580, Page No.104, dated 17-2-1965, issued by the Deputy Settlement Commissioner, Karachi. She filed two separate Rent Cases Nos.698/1971 and 699/1971 against Faqir Muhammad and Taj Muhammad, tenants on the ground of default in payment of rent. It is stated in the rent applications that Faqir Muhammad is tenant in respect of four rooms -of Tenement No.14, Plot No.511/4-G.R.E., Patel Para, Karachi, while Taj Muhammad is a tenant in respect of one room of Tenement No.17, Plot No.511/4-G.R.E., Karachi. The monthly rent according to Excise and Taxation has been assessed as Rs.40 and Rs.30 respectively. The respondent served notice on the appellants' on 29-7-1970, and called upon them to pay the rents. The rent was not paid and appellants in their written statements took the plea that structure was raised by them, as such there is no relationship between Mst. Zohra Bai and the appellants. In para No.7, of the written statements, they have stated that respondent declined to accept the rent of the portion of land in appellants' occupation at the rate at which the Custodian of Evacuee Properties, Karachi, was realising and they are ready to pay the above rate of rent or at the rate which is fixed by the Court.
3. I have heard Mr. S.A. Akbar for the appellants. It is contended by the learned counsel that in view of the provisions of section 30 of the Displaced Persons Act, the plot does not come under the jurisdiction of the Rent Controller. Therefore, the rent cases filed by the respondent were not maintainable and were without jurisdiction. It is argued by the learned counsel that respondent can seek remedy by way of filing civil suit as both the appellants are old tenants and they raised structures. He has referred to the case reported in 1984 CLC 2888. Mr. Mirza Abdur Rashid appearing for the respondent in both these appeals submitted that since 1970, the appellants are not paying the rent nor have made any attempt to tender the rent; therefore, they have committed default and they are liable to be evicted. With regard to the legal proposition, it is submitted that this point has been decided in a case reported in 1984 CLC 3227.
4. In both the appeals, identical point of jurisdiction has been raised by the learned counsel for the appellants and on that basis, appellants have not paid the rent to the respondent. Therefore, this identical point is involved in both these First Rent Appeals. I, therefore, propose to dispose of both the appeals by this single order. The documents relied upon by Mst. Zohra Bai regarding ownership of the respondent have not been denied or disputed by the appellants. The respondent has admitted that they are in possession of the premises but raised constructions themselves. The Rent Controller on 3-11-1971, under these circumstances, framed the preliminary issue and by an order dated 1-10-1978, after hearing the learned counsel of the parties and considering the evidence, came to the conclusion that there exists relationship between the landlady and the tenants, and he observed as under:- "Keeping in view the definition of tenant as given under section 2(c) of the West Pakistan Urban Rent Restriction Ordinance, 1959, I am of the considered "opinion that the opponents are liable to pay the rent and accordingly I hold that the relationship of the landlady and the tenants exists between the parties. "
5. The rent cases were pending and during that period appellants neither paid the rent nor attempted to tender the same, with the result that Rent Controller has accepted both the rent cases and ordered the eviction of the appellants. The Rent Controller during the pendency of the rent cases and after deciding the preliminary issue also did not pass any order under section 13(6) of the then Ordinance. He could have done so after deciding the preliminary issue and it was also incumbent upon the appellants to have remitted the rent by money order or deposited in the office of the Rent Controller having jurisdiction of the area in terms .Of explanation and section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, which was applicable at that time. Even at this stage, Mr. S.S. Akbar has stated that the rent was not deposited because there is a dispute about the jurisdiction of the Rent Controller. From the very face of it when it is admitted in the written statements that appellants were prepared to tender the rent for some portion of the premises but respondent declined which clearly shows that relationship was admitted long ago before deciding of the preliminary issue against them. In spite of all, no efforts have been made to pay the rent. Now, I come to the legal plea taken by the appellants. First of all, no such issue was framed by the Rent Controller nor this plea was taken specifically. Whatever the case may be, this point has been fully discussed and decided, in case of Muhammad Moosa and two others v.
6. Shabbir Ahmad and another, reported in 1984 CLC 3227. In this case, the Division Bench of this Court held at page 3237-A as under:- "Viewed in this context the case of the present appellant wouldalso fall within the purview of section 30 because on his own showing in para 2 of his objections he has raised constructions over the plots and he is using them for commercial and residential purposes. No doubt the premises have been transferred to the respondents as open plots by the Rehabilita--tion Authorities but constructions have been raised thereon as early as 59/60, and they were being used for commercial and ail residential purposes at the time of transfer. Thus, the case .1would fall within the purview of section 30. If section 30 is 911, applicable then statutory tenancy is created and, therefore, they become tenants of the respondents and their ejectment could be secured only through the forum of the Rent Controller under the provisions of the Sind Rented Premises Ordinance, 1979." Mr. S.S. Akbar has not been able to lay hands on any other authority and stated that it ishe latest position of law. He only referred to a case of Mst. Safdar Bano and four others v.
7. Inamul Haq and two others reported in 1984 CLC 2888 decided by a Single Judge of this Court where section 2(f) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was interpreted. The facts in the present case are different as these premises have not been used for commercial purposes and this case is distinguishable from the above case cited by Mr. Mirza Abdur Rashid. For the reasons stated above, I am of the view that Rent Controller has rightly allowed both the rent cases. Therefore, I dismiss the First Rent Appeals Nos.893/1984 and 894/1984, with no order as to cost.