' The facts briefly stated are that Amir Ali, petitioner took House No, 271/15 in Soldier Bazar, Hyderabad on monthly rent of Rs, 400 from Mohammad Hashim, respondent and after paying rent for 5 months failed to do so for a year afterwards. The house stands in the name of Mohammad Hashim's minor son, named Hyder Khan.
2. In November 1971 Mohammad Hashim applied to the Rent Controller, (Cantonment), Hyderabad for possession of the house on account of the failure of the tenant to pay rents from 1st November 1970 and also on the ground that he needed for his personal use.
3. In defence, Amir Ali raised the plea, Inter alia, that he was the tenant of one Abdul Samad and not of Mchammad Hashim. The question whether relationship of landlord and tenant existed between the patties was therefore, treated by the Rent Controller as a preliminary issue in the case.
4. After hearing the parties and giving them chance to lead evidence, the Rent Controller held, by the order dated 18-1-1973, that petitioner was the tenant of Mohammad Hashim as Abdul Samad had himself confirmed in his statement before him that the house belonged to Hyder Khan, minor son of Mohammad Hashim, and that it was due to friendly relations with Amir Ali that he had requested Mohammad Hashim to let out the house to him. The following portion of the order of the Rent Controller dated 18-1-1973 may be usefully reproduced: "After going through the evidence and the statements of the parties it is confirmed that the premises in question are owned by Hyder Khan minor son of Haji Hashim and managed by the applicant and it was through Abdul Samad Shaikh that the house was rented out temporarily to Kazi Amir Ali. Mr. Abdul Samad Shaikh has categorically confirmed that the premises did not belong to him and that he worked as a negotiator and not as a landlord. The applicant has failed to bring any evidence, documentary or otherwise to prove that Abdul Samad Shaikh and not Haji Hashim was the landlord to counter the statement of Haji Hashim and Abdul Samad Shaikh. I therefore, conclude that there exists relation of the landlord and tenant between the applicant and opponent."
5. After passing this order, learned Rent Contrcller adjourned the case and by the subsequent order dated 6-2-1973 he tentatively fixed rent at Rs, 300 p.m. And directed the petitioner to deposit the arrears of rent at that rate from 1-9-1971 to 31-1-1973 amounting to Rs, 5,100 on or before 12-3-1973 and current rent with effect from 1-2-1973 by the 5th of each following month.
6. Petitioner deposited only Rs, 300 pursuant to this order on 3-3-1973, and challenged the order of the Rent Controller dated 18-1-1973 in an appeal to the District Judge, Hyderabad. The appeal was, however, dismissed on the ground that it was barred by time. Petitioner then filed another appeal against the subsequent order of the Rent Controller dated 10-4.1973 by which his defence was struck off for the reason of default in complying with the order dated 6-2-1973 by depositing the arrears of rents.
7. The District Judge, Hyderabad dismissed this appeal by the impugned order dated 8-8-1973. He held that petitioner was a clear defaulter in complying with the order of the Rent Controller dated 18-1-1973 and in spite of opportunity having been given to him, he had failed to deposit the arrears of rents. He further overruled the objection that no opportunity had been given to petitioner to adduce evidence in support of his defence pleas.
8. Petitioner then challenged all these orders before this Court in this petition under Article 199 of the Constitution.
9. Mr. Karrar Hussain, learned counsel for the petitioner raised two contentions in support of the petition, firstly that no order dated 18-1-1973 was ever passed by the Rent Controller and secondly that the ejectment application was itself incompetent in law as it was not filed by the real owner, namely, Ryder Khan.
10. So far, as the first point is concerned, we have examined the record of the case in details in view of the serious nature of the allegation. It is clear that after evidence of the parties was recorded on the preliminary issue, the case was adjourned to 31-12-1972. On this date, after hearing the learned counsel, the hearing was adjourned to 18-1-1973 for orders. The order was actually passed on 18-1- 1973 and it is a part of the record of the case. The case diary further shows that the hearing was then adjourned to 6-2-1973. On this day, the counsel for Mohammad Hashim was present but no appearance was made by the petitioner or his counsel was present. The learned Rent Controller, in the circumstances, passed the order fixing tentative rent at Rs, 300 and directed the petitioner to deposit the arrears and the future rents. Petitioner applied for grant of certified copy of the orders on 17-2-1973, and thereafter, deposited sum of Rs, 300 on 3-3-1973. He, however, filed an appeal against the order dated 6-2-1973 on 8-3-1973. The appeal being barred by limitation was dismissed by the District Judge, Hyderabad on 16-3-1973. This appeal was directed against the order of the Rent Controller fixing tentative rent and learned counsel rightly concedes that of was not competent in view of the rule laid down by the Supreme Court of Pakistan. In view of the fact that the order dated 18-1-1973 is borne by the record of the case, we are clearly of the view that the first submission raised by the learned counsel is without any substance.
11. So far as the second ground is concerned, it is clear that the petitioner had taken the house on rent from Mohammad Hashim and paid rents to him for five months. This position stands sufficiently proved on record. It is in evidence that the house was actually purchased by Hashim.
He. However, got it registered in the name of his minor son, Hyder Khan. He was personally looking after this property and had rented out to petitioner, who had attorned to him as the landlord.
Mohammad Hashim's application for ejectment is therefore, to be treated as an application by landlord in the meaning of section 2(c) of the West Pakistan Rent Restriction Ordinance, 1959, he being the person for the time being entitled to receive rent in respect of the house. Even otherwise he is entitled to receive rents as the guardian of his minor son who is the real owner of the property.
It is therefore immaterial if he is not the owner of the house, for, so far as petitioner is concerned, he is estopped, by the bar of section 116 of the Evidence Act, to deny the capacity of Mohammad Hashim as his landlord in view of the facts proved on record that he had been inducted into the premises by Mohammad Hashim and had attorned to him as the landlord by paying rents. There is, therefore, no merits in the second contention also.
12. We therefore, dismiss this petition in limine.