' The validity of the order of learned Additional District Judge dated 2-9-1984 is called in question in this constitutional petition whereby the learned Additional District Judge exercising appellate authority under section 24 of the Cantonments Rent Restriction Act 1963 (XI of 1963) accepted the appeal, set aside the order of learned Rent Controller dated 23-10-1983, ordered the eviction of the petitioner from the disputed premises.
2. In brief, the facts leading to the present petition are: that Ahmad Shah herein the petitioner is alleged tenant while Mst. Sakhian Bibi is alleged landlord. The premises in dispute is house situated in Mohallah Ghaziabad, Rawalpindi Cantt.
3. Mst. Sakhian Bibi filed eviction petition before the learned Rent Controller in respect of the disputed house. The learned Rent Controller vide order dated 23-10-1983 dismissed the petition and came to the conclusion that relationship of landlord and tenant did not exist between the parties, directed the landord to seek adjudication in respect of title from the Civil Court. On appeal the learned Additional District Judge accepted the appeal, set aside the findings of the Rent Controller on preliminary issue and ordered the eviction of respondent. Hence Ahmad Shah has filed this constitution petition.
4. It is advantageous to note the precise pleas of the parties. Mst. Sakhian Bibi took up the plea to the effect that Mst. Begum Jan had purchased the disputed premises through registered sale deed Ex. P2 dated 4-8-1959; that Begum Jan made gift of the disputed house in her favour vide registered gift deed dated 6-5-1980; that Mst. Begum Jan had constructed the house and inducted Ahmad Shah and Muhammad Shah as her tenants in the month of June, 1980 at the rate of Rs, 550 per month; that the tenant defaulted in making payment of rent after tendering the rent of June and July, 1980; that the shop was required for personal use.
5. Ahmad Shah disptued the relationship of landlord and tenant between the parties on the ground that the disputed premises measuring one kanal was pruchased by all the three brothers i.e, Ahmad Shah, Muhammad Shah and Syed Jan Shah, the husband of Mst. Sakhian in the name of Mst. Begum Jan who was their married sister. The purchase was effected in the name of Mst.
Begum Jan on account of prohibition contained in Police Rules whereby the police employees were not permitted to purchase the land without the permission of police authorities. It was also asserted that Mst. Begum Jan was a custodian of the earnings and savings of three brothers, had no indepedent means of income and was only benamidar.
6. The plea of Ahmad Shah prevailed with the learned Rent Controller but was negatived in the Court of first appellate authority.
7. Learned counsel for the petitioner raised the following points:
(i) It was maintained that the learned Additional District Judge fell into error of law by misreading of the evidence of PW1 where it was admitted that Ahmad Shah and Muhammad Shah were living in the houses built upon the disputed premises, that the houses were constructed 15 years before, that the PWs had no knowledge as to who were the persons who constructed the houses. It was urged that by non-reading of this evidence, the learned appellate authority fell into error of non- exercise of jurisdiction.
(ii) It was next contended that the learned Additional District Judge failed to notice that appellate authority under the Act was Tribunal of limited jurisdiction and could not decide the complicated question of title in view of the rule laid down in Rehmat Ullah v. Ali Muhammad and another 1983 SCM R 1064.
(iii) Thirdly, it was asserted that the finding of the Additional District Judge was based on conjectures and surmises and was devoid of legal efficacy.
' On the other hand, learned counsel for the contesting respondent supported the impugned order.
It was proposed that the wrod "tenant" in section 1(J) of the Cantonments Rent Restriction Act, 1963, hereinafter referred to as Act No, XI of 1963, had a wider meaning and a broader spectrum than the word "tenant" given in the Punjab Rent Restriction Ordinance, 1959, hereinafter referred to as Ordinance VI of 1959. According to him the word "tenant" in the Act XI of 1963 included a person who was in mere possession of the premises in dispute. Elaborating his submissions, it was contended that even a trespasser was a landlord in the context of word "tenant" in Act No, XI of 1963.
' Secondly, it was contended by the learned counsel for the contesting respondent that the constitutional jurisdiction was not available against the order passed by authority which was competent to pass order under the provisions of law.
8. I felt necessity of further assistance as to examine the scope of words "landlord" and "tenant" in Act No, XI of 1963 and in Ordinance VI of 1959. I accordingly asked Mirza Anwar Baig, Advocate Supreme Court to render assistance on this vital question as amicus curiae:
(i) whether the simple possession was sufficient to constitute relationship of landlord and tenant between the parties under Act VI of 1963;
(ii) what was the effect of rule laid down in Rehmat Ullah's case.
9. Mirza Anwar Baig Advocate, assisted the Court with a usual industry and clarity of mind and cited the uptodate case law before the Court.
10. Giving his arguments on the question noted above he contended that relationship of landlord and tenant in all the rent laws including rent law relating to Cantonment, rent law relating to Urban Properties in Punjab and Sindh Rented Premises Ordinance, 1979 (Ordinance No, 17 of 1979) clearly envisaged a bilateral relation arising from the contract between the landlord and tenant or from a statute. According to him tenancy was not a unilateral relationship. It depended upon consent of both, the landlord and tenant. In support of this proposition he cited "Ghazi Inam Nabi Pardesi and 15 others v. Dr. Maj. Syed Ahmad Hassan and another PLD 1975 Kar.
530.
11. Reverting to definition of tenant in Act No, XI of 1963 he contended that the same definition was in the Sindh Rent Premises Ordinance, 1979. The High Court of Karachi in the above noted case came to the conclusion that definition of landlord given in Ordinance 17 of 1979 was not different than the definition of Punjab Urban Rent Restriction Ordinance, 1959. It was urged that in all these authorities, the argument that the scope of tenant was wider and broader was repelled. The learned counsel in respect of effect of Rehmatullah's case contended that whereever the Rent Controller came to the conclusion that evidence in support of title furnished by the landlord was not beyond doubt or the question of title was serious between the parties and required detailed evidence; it was appropriate that the landlord be sent to the civil Court for adjudication of title.
12. I have heard the arguments of both the parties and have been also benefited by the assistance rendered by the learned amicus curiae. The arguments advanced by the parties raised the following questions for determination:--
(i) Whether mere occupation of premises is sufficient to create relationship of landlord and tenant between the parties in the context of definition of "tenant" given in Act No, XI of 1963.
(ii) Whether the order of learned Additional District Judge is in accord with the rule laid down in Rehmat Ullah's case.
13. It will be convenient to examine the definition of "tenant" given in Act No, XI of 1%3, in Ordinance VI of 1959 and Ordinance No, XVII of 1979. The definition of word "tenant" given in Act No, XI of 1963 is as follows:-- "Tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of a building 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 building after the termination of his tenancy; and
(ii) in the event of the death of the tenant, his heirs and successors and after the termination of the tenancy, his heirs and successors who continue to be in possession or occupation of the building.
The definition of the word "tenant" given in Ordinance VI of 1959 is as follows:-- "Tenant" means any person by whom or on whose account rent is payable for a building or rented land and includes:
(a) a tenant continuing in possession after the termination of the tenancy in his favour and
(b) the wife and children of a deceased tenant, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, cart-stand, or slaughterhouse or of rents for shops has been farmed out or leased by a municipal, town or notified area committee, or by the Corporation of the City of Lahore or by the Lahore Improvement Trust or any other Improvement Trust; ' The definition of the word "tenant" given in Ordinance XVII of 1979 is as follows:- "Tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premsies 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.
14. No authoritative pronouncement from Lahore jurisdiction was cited by the learned counsel for the respondent in support of proposition that the word "tenant" in Cantoment Law had a wider connotation. The bare examination of the definition of tenant in Act No, XI of 1963 and Act No, 17 of 1979 will show that both the words have the same meaning.
' The word tenant in Ordinance 17 of 1979 had been a subject matter of interpretation in number of cases before the Karachi High Court. It will be appropriate at this stage to examine these cases.
15. In Haji Suleman v. Haji Amin Shakoor Tumbi and another 1982 CLC 1453, repelling the argument that relationship of landlord and tenant was created by mere possession, His lordship Mr. Justice Saleem Akhtar held as under:-- "Tenancy is a status which carries certain advantages. Under a contractual tenancy the relationship of landlord in consideration of the rent payable by the tenant confers on him a right of exclusive possession of the demised premises. Under the Rent Ordinance a statutory tenancy arises when a tenant under a lease or other contractual tenancy of premises within the Ordinance holds over and remains in possession after the expiry of the contractual tenancy. It can also arise under the Ordinance in cases where the tenant dies leaving such legal representatives which have been recognized by Ordinance to continue as tenant. A statutory tenancy can thus be created by operation of law. According to Sindh Urban Rent Restriction Ordinance 1959 landlord has been defined as "any person for the time being entitled to receive rent in respect of any building or rented land and every person from time to time deriving title under a landlord". The word "tenant" has been defined by section 2(1) as any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of the tenancy in his favour, and (b) the wife and children of the deceased tenant. In these definitions words of wide import have been employed but in essence as held in PLD 1963 Lah. 418 "rent is payale by a tenant in relation to transfer or an interest in and a right to enjoy a particular land" or building. The Ordinance recognizes creation of tenancy by agreement. It does not contemplate creation of tenancy at the sole discretion of the landlord without the consent of the tenant".
16. The same principle was highlighted in Syed Aijaz Hussain v. Azimullah 1984 CLC 2908, Haji Faqir Muhammad v. Hazartullah 1989 CLC 252.
17. I am in complete agreement with the rule laid down in the aforesaid noted authorities and I am of the definite view that the word tenant in Act No, XI of 1963 is not of a wider connotation as proposed by the learned counsel for the C respondent and is relatable to only the persons who are inducted into tenancy on account of agreement between the parties or the tenancy arising from the statute.
18. There is yet another aspect of the case. It is a settled principle of interpretation of statutes that the language of statute is to be interpreted from the examination of the whole statute. The Court has to ascertain the purpose and object of law while interpreting the statute. There can be no cavil with the proposition that the Rent Laws have been enacted to regulate the relationship of the class of landlord and tenant with an object to protect the interest of each class. The Act No, XI of 1963 was made to make the provision for control of rent of certain classes of buildings within the limits of Cantonment area and eviction of tenants therefrom. The preamble to Act XI of 1963 is indicative of all intents and purposes of law. It is as follows:-- "Whereas it is expedient to make provision for the control of rent of certain class of buildings within the limits of the Cantonment areas, for the eviction of tenants therefrom and for matters connected therewith;"
19. This Act provides for fixation of fair rent, procedure for obtaining permission for making repairs and the law in respect of eviction of tenant. The preamble of statute is the key to discerning the purpose and intent of the statute. From the examination of the entire scheme of Act XI of 1963 alongwith the other rent laws, 1 am of a clear view that Rent Restriction Act 1963 is only applicable to matters relating to landlord and tenant based upon contractual tenancies or statutory tenancies. It does not include the trespassers or the persons in occupation.
20. As regards the second point whether the rule of Rehmatullah's case is applicable to the facts of the case, it will be advantageous to reproduce the relevant rule in Rehmatullah's case. In the said authority his lordship Mr. Justice Muhammad Afzal Zullah observed as follows:--
(i) The proceedings are summary before a forum which is not in the strict sense a Court. Evidence Act and Civil Procedure Code do not apply and the presiding officer need not have judicial experience, e.g. In Cantonment rent cases in some areas.
(ii) The law leaves no doubt that except where tentative and only prima facie orders are permissible, the decision regarding eviction (and its basis including when the matter involves title) cannot be without complete satisfaction of the Controller. It cannot be so where he is in 'doubt'.
(iii) By operation of general law of res judicata, section 9, section 12(2) CPC and section 15(7) of Rent Restriction Ordinance together with policy of Courts to prevent multiplicity and repeat litigation, the Civil Court is debarred from setting aside the orders of the Controller.
' What is permissible for Courts of general jurisdiction in the field of fair-play, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy in a Civil Court, first and then again approach to the Controller. Even when the tenant has not succeeded before the Controller to create the required 'reasonable' doubt but has convinced him that his plea is not frivolous and/or vexatious, but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same".
21. In the same case, his lordship Mr. Justice Nasim Hasan Shah who appended a note with the main judgment observed as follows:-- "The result in practical terms accordingly may be summed up as follows: ' The Rent Controller who was dealing with a petition for ejectment of an occupant of a property by a party claiming to be his landlord, a claim which was based on the plea of ownership, should have proceeded to decide all the issues relevant to the said question, which incidentally may also have included a decision on the question of title. This was done by the Rent Controller. If his appellate authority considered that a deeper and a more detailed examination of the last-mentioned question was necessary for settling this matter and also found that the title of the alleged landlord did suffer from some doubt, he should in these circumstances, have dismissed the ejectment petition, leaving the appellant before him, to move the Civil Court for a declaration of his title.
' As has been observed earlier that if such leave is not granted by the Rent Controller or by the Appellate Authority while deciding the ejectment petition, the finding of such authorities even on the question of title, incidental though it may be, shall become final and will operate as res judicata, not liable to be reopened before a Civil Court. However, the aggrieved party can get this omission rectified, if made by the Rent controller by filing an appeal and if made by the appellate authority, from the High Court, in exercise of its supervisory constitutional jurisdiction. In case these forums find that the question of title does indeed, require further examination by the Civil Court and the finding of the Rent Controller or the appellate authority should not be treated as final, such a finding given by them would enable the aggrieved party to reagitate the said question before a Civil Court and in such an eventuality the bar of res judicata would not apply".
22. This rule laid down in Rehmat Ullah's case has been reaffirmed in Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1, Umar Din v. Additional District Judge Toba Tek Singh and others 1986 SCM R 1580 and Mir Salah ud Din v. Qazi Zaheer ud Din PLD 1988 SC 221.
23. Applying these rules to the facts of the case it is clear from the record that Mst. Begum Jan, the vendee under the registered sale-deed had no independent sources of income, that the title deed remained in the custody of Ahmad Shah, that Ahmad Shah and Muhammad Shah had constructed their houses in 1966 and 1969. The application for eviction did not give the details of the houses constructed on the disputed premises, that the question of benami nature of sale deed was asserted by Ahmad Shah, proof of relationship of landlord and tenant was not free from doubt, that both the parties have filed suits for declaration of title in the Court of Civil Judge, Rawalpindi, the suits are pending adjudication after the finding of Rent Controller, that Mst. Begum Jan was not produced before the Court to own or disown the sale deed in her favour.
24. I am, therefore, of the view that the Rent Controller followed the rule laid down in Rehmatullah's case on reasonable and sound grounds. The learned Additional District Judge failed to follow the rule laid down in Rehmatullah's case and also was not justified in ordering the eviction of the tenant on the simple principle that the title stood established in favour of the respondent.
25. For whatever has been stated above, I have come to the conclusion that the impugned order passed by the learned Additional District Judge is clearly without lawful authority, being in contravention of the rule laid down in Rehmat Ullah's case. I accordingly declare as such. The impugned order is set aside, the order of the Rent Controller is restored. The petition is accepeted.
The parties are left to bear their own costs in view of the complexity of the question raised in this petition.