' The material facts culminating in this appeal filed under section 21 of the. Sindh Rented Premises Ordinance, 1979, briefly, are that the respondent, namely, Masjid-e-Allama Iqbal Colony, Karachi, is a registered religious institution. One Muhammad Ramzan owner of the disputed plot with construction thereon dedicated this property to Masjid-e-Allama Iqbal Colony, Karachi, through a registered waqf deed dated 8-10-1980. The appellant who was in occupation of the premises as tenant of said Muhammad Ramzan refused to make payment of the monthly rent to respondent.
The matter went to Martial Law Authorities and was ultimately referred to Natha Khan Councillor who resolved the dispute and the appellant acknowledged the respondent as his landlord. He paid rent to the respondent for two months, viz. June and July, 1981 and again defaulted in making payment. He also caused nuisance to Namazis as well as to the persons of locality. The respondent also required the disputed premises for a separate Madarsa for the children of locality. On 24-4- 1984, the respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, before the Rent Controller seeking the ejectment of appellant on the aforesaid grounds.
2. The appellant resisted his eviction on various grounds. He disputed the tenancy and claimed to have purchased the disputed premises in his occupation from Muhammad Ramzan through an agreement of sale for a sum of Rs, 18,000 out of which Rs, 10,000 were paid.
3. The parties went to trial on the following issues:--
(i) Whether the relationship of landlord and tenant exists between the parties and the application is maintainable?
(ii) Whether the opponent has committed default in payment of monthly rent of disputed premises as alleged?
(iii) Whether the applicant requires the disptued premises bona fide for personal use?
(iv) Whether the opponent has indulged in such activities as are causing nuisance to NIMAZIS and neighbours?
(v) What should the order be?
4. The respondent examined Ch. Faiz Alam, General Secretary (P.W.1), Muhammad Ramzan (P.W.2), Ali Shah, Treasurer (P.W.3), and Natha Khan, Councillor (P.W.4), while the appellant examined himself (D.W.1), Muhammad Nazir (D.W.2), and Rasoc4 Khan (D.W.3).
5. On the assessm ent of evidence, both oral as well as documentary, the learned Rent Controller decided all the issues except No,4, against the appellant vide order dated 30-11-1988, giving rise to this appeal.
6. I have heard Mr. Muhammad Ashraf Bhatti, learned counsel for the appellant and Mr. Rana Muhammad Ahmed Khan, learned counsel for the respondent. I have also gone through the record of this case carefully. Mr. Bhatti has referred to several points but eventually confined his arguments in the main to the following contentions:--
(a) That the Masjid (mosque) not being a juristic person and no trustee having been appointed, the application for ejectment filed through Ch. Faiz Alam, being its General Secretary, was not competent.
(b) That the WAQF being invalid did not create any right in favour of respondent and consequently the application for ejectment filed on the strength of this WAQF deed was not maintainable.
(c) That the tenancy being in dispute, it was obligatory upon the Rent Controller to have framed and decided a preliminary issue in this behalf before assuming jurisdiction.
(d) That the Rent Controller has misread the evidence resulting into wrong conclusion.
7. The mosque is a recognised religious institution of a permanent nature in Islam and is always known by its specific individual name. Mosque holds movable and immovable properties and also keeps the accounts in its own name and even the bank account is operated in the name of mosque. The church and temple are also juristic persons like the mosque. The case of Moula Bux v.
Hafizuddin and others, reported in AIR 1926 Lah. 372, is relevant in this behalf. This question was examined in the case of the Mosque Masjid Shaheed Gani and others v. Shiromani Gurduwara Parbondhak Committee, Amritsar and another, reported in I L R 1940 Lah. (P.C.) 493, and although their Lordships of the Privy Council reserved their opinion on it, the trend of their observations seems to show that the view of the Lahore High Court did not commend itself to them. The facts of the above case are, however, distinguishable. The observations made by their Lordships of the Privy Council are confined to a civil suit and not to an ejectment proceedings which can be instituted by any person falling within the definition of landlord, which is very wide and includes Mutawalli, Trustee, Manager and a "Secretary" of Waqf properties. For this reason, the case reported as Sabnis, Goregaonkar and Senjit v. B.V. Nerurkar and others, reported in AIR 1937 Born. 374, is also distinguishable.
8. During the course of arguments Mr. Rana Muhammad Ahmed Khan, learned counsel for respondent has invited my attention to the fact that the appellant had himself sued the Masjid through its General Secretary, Ch. Faiz Alam in Suit No, 4189 of 1984 filed for declaration and, therefore, it does not lie in his mouth to say today that the Masjid not being a juristic person could have filed the application for ejectment through its trustees only. There is good deal of force in this contention. It may be added that all the provisions of Code of Civil Procedure, 1908, and Qanun-e- Shahadat, 1984, are not applicable to such proceedings. The cases reported as Ghulam Nabi v.
Mushtaq Ahmed PLD 1980 SC 206, Abdul Majid and 7 others v. Muhammad Aslam 1981 CLC 20, Fazal Karim v. Muhammad Usman 1981 CLC 1393, and Rehmatullah v. All Muhammad and another 1983 SCM R 1064, serve as guidelines.
9. The photo-copy of the declaration of waqf is on record (Annexure 'V). It is a registered deed, which has been acted upon. The appellant, who has been sued as tenant has got no locus standi to challenge it. This view was taken by the Supreme Court in the case of Muhammad Ishaq through his legal heirs v. S. Khurshid Alam, reported in PLD 1989 SC 353, in relation to a gift. The appellant, therefore, cannot question the validity of Waqf deed.
10. Admittedly the disptued premises originally belonged to Muhammad Ramzan. (P.W.3), who claims to have dedicated it to respondent in the name of God by executing the declaration of waqf. The appellant raised a plea of ownership when asked by the office-bearers of respondent to pay rent. The matter ultimately went to Sub-Martial Law Administrator concerned who referred it to Natha Khan, the Area Councillor (P.W.4) who decided the dispute, whereby the appellant accepted the respondent as landlord and put his thumb impression on the deed in token of having accepted the same. The appellant admits his L.T.I. On this compromise deed (Annexure-A), which has been proved through Natha Khan (P.W.4) who had brought about this compromise. The cross- examination made to appellant on this point is material and relevant extracts are reproduced below:-- "I know that Ramzan has transferred property by way of Waqf deed. I had given application to Martial Law Authority against Ramzan. Martial Law Authority has directed us to the Councillor where the compromise was arrived at. The matter was settled on 18-5-1981. My thumb impression was obtained on compromise by way of mis-representation and fraud. I see Annexre 'D' and say that it bears thumb-impression and seal of Martial Law Authority and signature of Councillor."
11. The appellant who alleges that his thumb impression was obtained by fraud and misrepresentation did not file suit for its cancellation. With this admitted position the version of Ch. Faiz Alam (P.W.1) Secretary of respondent about the payment of rent by appellant for the months of June and July 1981, appears to be true, specially when the counterfoils of the receipt book are on record (0/3 and 0/4).
12. The appellant claims to have purchased the disputed premises from Muhamamd Ramzan (P.W.3) vide Exh.0/2. Muhammad Ramzan (P.W.2) has disputed this receipt by denying it on oath.
This question is considered by learned Rent Controller who rejected the plea of appellant in the following words:- "As against this the opponent has produced a receipt dated 2-8-1971 said to have been executed by P.W. Muhammad Ranizan, wherein he has acknowledged the sale of House No, 169 Mehmoodabad Karachi to opponent and receipt of Rs, 10,000 from him as advance out of total consideration of Rs, 18,000 and has contended that the same is receipt of purchase of disputed premises by him and that he is the owner of the same and that there is no -relationship of landlord and tenant between the applicant and him, and D.W. Muhammad Nazir and Rasool Khan who are the attesting witnesses of the said receipt (the execution of which has been vehemently denied by P.W. Muhammad Ramzan and which had been also referred to handwriting expert at the request of the applicant and he has opined that the signature over the same are of P.W. Muhammad Ramzan), have also testified that the same had been executed by the said P.W. Muhammad Ramzan. However, the same is of no avail to opponents, firstly for the simple reason that the same refers to House No, 169 of Mehmoodabad Karachi whereas the number of the plot of disptued premises is 437, Final. No, 287, MAC III and Excise and Taxation Department's No, of the same is AIC- 2S-12 & 13, and secondly for the reason that in his written statement the opponent has averred that they had purchased the plot of the disputed premises from the said P.W. Muhammad Ramzan and thereafter he himself constructed two rooms over the same and in his cross-examination also he has specifically denied the existence of any house at the plot of disputed premises at the time of alleged sale of the same to him by the said P.W. Muhammad Ramzan, whereas the said receipt pertains to sale of House No, 169 and not plot. Even otherwise admittedly D.W. Muhammad Nazeer is a friend of opponent while Rasool Khan is his business partner and they appear to have testified in favour of opponent due to that. As regards the report of handwriting expert since he has not been examined, the same cannot be treated as a piece of evidence as has been held in 1987 P Cr.L J (Kar.) 247 (255-E), and assuming for the sake of arguments, that the said receipt is genuine, even then the same does not confer any title upon the opponent because the same does not pertain to disputed premises and that is a dipute between the said P.W. Ramzan and the opponent and the applicant mosque has nothing to do with that. The applicant has got registered instrument of Waqf of disptued premises in its favour and vide settlement effected by the Illaqa Councillor between the opponent and the applicant, the opponent has admitted himself as tenant of applicant, though in his cross-examination he has alleged that his LTI on the same had been obtained by fraud and misrepresentation but this is only an afterthought allegation as no such plea has been taken by him in his written statement or affidavit in evidence."
' I fully endorse the view taken above.
13. It will not be out of place to mention here that no attempt was made by the appellant to enforce the "so said agreement" by filing a suit for specific performance of contract. Since he is proved to be a tenant of respondent, he cannot be permitted to dispute its title and his own status as tenant.
14. The Rent Controller is not bound to consider an objection about his jurisdiction at a preliminary stage which appears to be frivolous and baseless on the face of record. Mr. Muhammad Ashraf Bhatti, learned counsel for appellant has cited the following authorities in an attempt to satisfy this Court that a preliminary issue on the question of jurisdiction was necessary:-
(i) Akhtar All Pervaiz v. Altaf-ur-Rehman, PLD 1963 Lah.
390.
(ii) Habibullah v. Bawa Vasdevgir Chelo Shombhugar PLD 1968 Kar.
869.
(iii) Banaras Khan v. Sardar Khan and 8 others, 1972 SCMR 588.
(iv) Settlement and Rehabilitation Commissioner, Hyderabad Division Karachi and another v.
Mannu Khan and 3 others, 1973 SCMR 62.
(v) Rehmatullah v. All Muhammad and another 1983 SCMR 1064.
(vi) Altaf Hussain v. Mst. Ayesha NLR 1986 U C 446.
(vii) Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447.
15. On the other hand Mr. Rana Muhammad Ahmed Khan, learned counsel for respondent has invited my attention to following cases with a view to satisfy that in the given circumstances the procedure adopted by learned Rent Controller was proper:--
(i) Aziz Begum v. Faiyaz Butt NLR 1980 Civil (Lah.) 134.
(ii) Mehrajdin v. Muhammad Ismail 1980 SCMR 764.
(iii) Ghayoor Alam v. Muhammad Jamil 1983 CLC 1274.
(iv) Nisar Ahmed and others v. District Judge, Muzaffargarh and others 1984 SCM R 317.
(v) S.M. Hayat v. Commodore (Rtd.) Inamul-Haq Malik and another 1984 CLC 3176.
(vi) Province of Punjab, through Education Secretary and another v. Mufti Abdul Ghani PLD 1985 SC 1.
(vii) Guftar Shah v, Chhoti Begum and 4 others 1986 CLC 707, and
(viii) Abdul Rehman and another v. Shahid Latif and 2 others 1988 SCMR 120.
15-A. The ratio decidendi of the above authorities cited at the Bar is:--
(a) That the Rent Controller need not consider an objection about jurisdiction which appears to be frivolous or baseless.
(b) That the Rent Controller alone is competent to decide question of relationship of landlord and tenant between the parties.
(c) Where the admitted facts do not create any doubt about the title of landlord, the Rent Controller is not obliged to dismiss the ejectment application directing the landlord to establish his title in a Civil Court.
(d) Framing of the preliminary issue about relationship of landlord and tenant between the parties is not always necessary.
(e) Deposit of arrears of rent may not be ordered where tenant objects to the jurisdiction of Rent Controller, and in such a situation question of jurisdiction be decided first.
16. In somewhat similar circumstances Saleem Akhtar, J observed in Guftar Shah v. Chhoti Begum and 4 others, reported in 1986 CLC 707, that; "In my view in every case it is not necessary to frame a preliminary issue.
' It is correct that if an issue has been raised which goes to the root of the jurisdiction of the Controller, steps should be taken to decide it first before deciding any other issue on merits. This observation is relevant and applicable mostly, in the cases when the Controller is asked to pass an order for deposit of rent. At that stage the issue relating to relationship should be decided first. But where such a situation does not arise and the Controller takes up this issue with other issues and gives his finding in a consolidated order, it cannot be termed illegal nor it vitiates the entire proceeding before the Controller. It is, however, desirable that issue relating to relationship must be decided first."
17. The above observations are fully attracted to this case where the order of deposit of arrears of rent and monthly rent due was also deferred.
18. On personal requirement also the respondent has proved its case. There is no evidence in rebuttal from the side of appellant on this issue who has simply raised an adverse claim of ownership. No exception can, therefore, be taken to finding of Rent Controller on issue. No,3.
19. No case for interference is made out. The appeal has got no merits and is accordingly dismissed with no costs. The appellant is, however, allowed two months time to vacate the demised premises.