The petitioner, in this Constitutional petition was cited as respondent in the ejectment proceedings initiated by respondent No.3: The petition wits filed on 9-1-1988. The landlady alleged that the premises were let out to the petitioner w.e.f 1-5-1985 at a monthly rent of Rs.3,500. The petitioner paid rent for a year in advance against duly executed receipt dated 6-5-1985. It wits alleged that the petitioner has neither paid nor tendered any rent thereafter. The ejectment of the petitioner was sought on the grounds of default in the payment of rent Since May 1986 and personal use. The petitioner resisted the petition on facts as well on legal points. He denied the existence of relationship of landlady and tenant. I tic learned Rent Controller accordingly framed the following preliminary issues:-
(1) Whether the relationship of landlord and tenant exists between the parties? O.P.A.
(2) Relief.
2. The landlady in support of the issue examined A.W. 1 Muhammad Ishtiaq, AW 2 Muhammad Sharif and Haji Muhammad Younas father and general attorney of the landlady appeared as AW 3.
The petitioner in rebuttal examined R.W. 1, Ashfaq and himself appeared as R W 2 and closed the side. The learned Rent Controller after hearing tile arguments answered preliminary issue No.1 in positive and thereafter proceeded to order ejectment of the; petitioner forthwith. The order of tile Rent Controller is dated 8-7-1989. The same was assailed through an appeal before the appellate authority, who dismissed the appeal of the petitioner vide order dated 22-10-1989 and confirmed the findings recorded by the learned Rent Controller. Now the petitioner through this Constitutional petition has assailed tile orders of the Courts below.
3. The petition came up for preliminary hearing on 21-11-1989 and notice for pre-admission hearing was issued to respondent No.3, who has entered appearance through an Advocate.
4. The learned counsel for the petitioner in support of the petition has argued that the landlady miserably failed to prove preliminary issue, therefore, the Courts below acted illegally and wrongly decided the issue against him. It is maintained that it is clear from whole of the evidence on record inclusive of the statements of AWs that it was Haji Muhammad Younas, who let out the premises to the petitioner and it is he, who has been receiving rent from the petitioner throughout, therefore, he was his landlord and not respondent No.3. The learned counsel in support of the argument relied on a case. Reported as Rehmatullah v. Ali Muhammad and another 19$3 SCMR 1064.
5. On the other hand tile learned counsel for respondent No.3 has argued that the premises were let out by Haji Muliammad Younas, who is the father of his client, on her behalf. It is added that admittedly the owner of the property is his client. The learned counsel further submitted that by authorising somebody else to receive rent or to manage the property tile owner does not lose status of landlord. The learned counsel in support of tile argument has relied on the judgments in tile cases of Syed Amjad Ali Shah v. Muhammad Afial and 3 others PLD 1987 Lah. 280, Muhammad Aslam v. Muhammad Yunus and another 1983 CLC 2304), Muhammad Sharif v. Sh. Muhammad Amin (P.L.D. 1977 Lah. 516), Hakim Din v. Muhammad Irshad (P.L.D. 1978 Lah. 333) and Mst. Kalsoom Akhtar and 8 others v. Muhammad Yaqub (P.L.D. 1976 Kar. 992). The learned counsel on the strength of these precedent cases, concluded that respondent No.3 was the landlady and the petitioner wrongly, malt fide and contumaciously denied the relationship.
6. The next submission on behalf of respondent No.3 was that the petitioner has not come with clean hands and in fact his hands are tainted with fraud, therefore, not entitled to any relief in extraordinary proceedings. The learned counsel went on to submit that the premises were let out at a monthly rent of Rs.3,500 per month and the petitioner paid advance for a period from 1-5- -1985 to 30-4-1986 against duly executed receipt dated 6-5-1985 but thereafter he did not pay or tender any rent whatsoever to anyone. On the other hand in order to cover the default he took up the plea that the rate of rent is Rs. 2,500 per month and he had paid advance of Rs.90,000. It is added that the petitioner also instituted a suit for permanent injunction and produced a forged receipt to secure interim relief but when the defendant took exception to the same the learned Civil Judge directed the petitioner vide order dated 24-2-1988 to produce the original receipt. This order was not complied with. The direction was repeated on 19-3-1988 and 28-4-1988 but remained uncomplied. Ultimately this suit was got dismissed for non-prosecution on 5-5-1988.
7.The learned counsel for respondent No3 1ias submitted that lie rate of rent is Rs.3,500 per month.
The same is rightly incorporated in para 2 of the writ petition. It is added that even if the rate is worked out from receipt Ex.CW/1, then it comes to Rs.3500 and not Rs. 2,5(10. The petitioner during the limine hearing tendered this receipt together with another cash memo. I put these documents to Haji Muhammad Younas who was present in the Court today. He admitted that receipt dated 6- 5-1985 teas issued by when lie premises were let out. The advance rent for one year was rcecived while he hits denied the cash memo, therefore, this receipt was exhibited is Ex. CW 1. The learned counsel further demonstrated with reference to the statement of petitioner as RW 2 that petitioner in the first instance denied the tenancy altogether. He took up the position that the premises were made over to him by Haji Muhammad Younas just for proper custody and there was no arrangement for `the payment of rent. It is added that tile statement of the petitioner. Is full of contradictions. On the one hand the petitioner maintained that he did not pay any amount to Haji Muhammad Younas in the rent account. On the other hand, he admitted the issuance of cheques Ex: A/1, A/2 and A/4 and also the undertaking AW.
4. This is not all. The learned counsel has further referred to the cash memo produced by the petitioner to argue that on the one hand it is alleged that no amount was paid towards rent, on the other hand from this cash memo the petitioner tried to prove that rent has been paid in advance upto 15-12-19,59. It is added that this is besides the fact that the relationship of landlady and tenant was mala fide and contumaciously denied.
8. I have given my, anxious considerations to the arguments of' the learned counsel for the parties and bone through the record as Well as precedent cases. The crucial question involved in this Constitutional petition is maintainability of the ejectment petition by the owner, therefore; it is worthwhile to refer to the definitions of landlord and tenant as given in sections 2(c) and 2(i) of Rent Restriction Ordinance. It is clear from the definition of the landlord that it covers in its fold not only persons who actually receive rent but also those who are entitled to receive rent. In tile present case the admitted position is that respondent No-1 is the owner of tile premises in dispute, therefore, her entitlement to receive rent cannot be denied or taken away if she had made any other arrangement. The learned counsel for the petitioner while making the submission did not bear in mind the mischief likely to be created if such position is accepted. Now -for example, a Manager is appointed to receive rent for the premises and he is found guilty of defalcation of funds and owner removes him. If the contention of the learned counsel for the petitioner is accepted then even after his removal the owner will not be entitled to deal with the tenants. Now taking the present case if Haji Muhammad Younas father of the respondent landlady is to be treated as landlord for all times to come, then it will amount to depriving the owner of her disposition and control over the property. It will amount to substracting or impairing material rights of ownership.
This cannot be the object of law. .
Now coming to the argument of the learned counsel for the petitioner with counter-reference to the arguments on behalf of respondent No.3, learned counsel for the petitioner argued that for all practical purposes Haji Muhammad Younas was the landlord -especially power of attorney in his.
Favour was given subsequently. The learned counsel for the petitioner in support of the argument has referred to the case of Rehmat Ullah. The same if gone through minutely goes against the, petitioner rather supporting his argument. The relevant portion reads as under:- "Sometimes in order to support the plea the Rent Controller has only to form a tentative opinion regarding relationship of landlord and tenant because it is not always necessary for the landlord, under the were and extended definition of the term `Landlord' to establish `ownership' of the property concerned. Therefore, the Rent Controller need not go into the disputed questions of title.
It is true that the definition of the landlord, as held in many cases, in the said law is very were and a person in various capacities can be deemed to be a landlord even if he is not owner of the property. But it cannot be denied that in large majority of the cases the claim of the applicant before the Controller as landlord is based on the ownership of the property, because the right to recover rent in those cases is based on the title in the property. This category of landlord is visualized in the very opening, part of the definition of the landlord "any person for the time being entitled to receive rent whether on his own account or ------ ' is a landlord."
9. On the other hand, learned counsel for respondent No.3 has referred a large number of cases as noted in earlier paragraphs of' this order. It is not relevant to refer to all the decisions, suffice here to refer the case of Muhammad Sharif ibid. In this case, the husband had been receiving rent on behalf of and for benefit of the were. There was nothing in writing. This Court held that no writing is requird for entitlement to receive rent. The relevant portion of the judgment reads as under:- "It is obvious that the expressions "on behalf of" or "for the benefits or, are very were. There is no such rider in the statute that the entitlement of any person to receive rent on behalf of another person should be based on any writing. It is necessary to point out that wherever formalisation through writing was felt necessary by the law-maker, it was so provided."
10. Now I take up the case of Syed Amjad Ali Shah. This is applicable on all fours to the present case.
In the precedent case, the petitioner was residing at Oslo, Norway and his father rented out the shop to respondent No.1 through rent note. The ejectment petition was filed by the father of the owner acting as general attorney: The petition was contested. The ejectment petition was accepted and ejectment ordered. This order was assailed through an appeal by the tenant. The appeal was accepted and ejectment order set aside on the finding that the petitioner was not the landlord and not competent to seek ejectment. This order was assailed through Constitutional petition and while dealing with the point of relationship my learned brother Falak Sher, J held as under:- "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."
11. Now coming to the merits of the plea the petitioner categorically admitted in the suit that he is tenant in the premises. The same is position in para.2 of this writ petition where the petitioner admitted that he is a tenant in the premises at a rate of Rs.3,500. This way the factual controversy raised by the petitioner in his own statement as RW 2 and his witness RW 1- is of no consequence.
The legal position has already been dealt with at length. It is relevant to add here that the so-called landlord Haji Muhammad Younas has not taken any undue advantage. The bona fides of the landlord is crystal clear from the fact that even the ejectment petition was filed through Haji Muhainmad Younas as real father and general attorney, therefore, the denial of tenancy cannot be held to be genuine. The same was clearly mala fide and contumacious. This is not all but the whole conduct of the petitioner is fraudulent.
12. The petitioner on the one hand admitted that Haji Muhammad Younas is his landlord, on the other hand proceeded to lead evidence to the effect that the premises were handed over to him on care-taker basis and no amount was paid in the rent account. This was clear departure from his written reply and even contradicted by the contents of the present petition. The petitioner also denied the rate of rent. He claimed that rate of' rent is Rs:2,500 per month and not Rs.3,500 as alleged in the ejectment petition. The petitioner tried to prove this assertion but ultimately also conceded the rate of rent in this writ petition. The petitioner withheld the receipt of the advance rent. The purposes seems to be two-fold, firstly to avoid the payment of arrears, secondly to conceal the rate of rent. Photo copy of this receipt was ultimately produced by his learned counsel at the limine hearing. The same was admitted as correct by Haji Muhammad Younas and has been marked as ^CW.1. The rent in advance for an year was paid through this receipt. The total amount was Rs.42,000, therefore, rate of rent is established as Rs.3,500 per month. The petitioner is alleged to have produced forged and fabricated receipts in the civil suit to secure injunction and when he was asked to produce the original he absented himself and got the suit dismissed for non- prosecution. This is not all. The petitioner has produced a cash memo dated 14-9-1988, according to which Haji Muhammad Younas purchased ornaments worth Rs.45,000 and on the foot an endorsement was alleged to have made by Haji Muhammad Younas that this amount is treated as advance rent w.e.f. 15-7-1988 to 15-12-1989. This was obviously at the rate of Rs.2,500 per month, This cash memo is patenly forged and fabricated document for the following reasons:- Firtly, the relation between the parties became strained and even according to the allegations of the petitioner Haji Muhammad Younas pressurised the petitioner through local police and in order to ward of this harassm ent the petitioner filed a civil suit on 8-11-1987, in which he impleaded the Sub-Inspector Muhammad Amir and ASI Farzan Ali as defendants besides Haji Muhammad Younas; Secondly; the ejectment petition .Was filed on 9-1-1988 and the same was also pending.
It is not possible to believe that in spite of strained relations and matter being pursued before police, Civil Court and Rent Controller, the petitioner was such a gentlemen, who paid the advance rent out of Court. The rent was paid through this alleged cash memo of Rs.2,500 per month while in this petition the petitioner has conceded that rate of rent is Rs.3,500 per month as claimed by the landlady. This fact alone is sufficient to disbelieve this cash memo.
13. The petitioner seems to be a man of no scruple. He has taken contradictory and false pleas and made the Court proceedings a mockery. There is no merit in this writ petition. The same seems, to be an effort to enjoy maximum rent free period.
14. The result is that the petition is dismissed with special costs of Rs.10,000 (Ten thousand).