1. ' By this common judgment I intend to dispose of these eight appeals as they arise out of the common order passed by the Rent Controller. Briefly the facts are that the present appellants, the landlords and owner of Hussain D'Silva Park situated at Clifton, Karachi had instituted the rent cases for ejectment of the opponents/tenants in respect of Flats Nos.10, 37, 9, 34, 25, 30, 20 and 12 respectively on the ground of demolition and reconstruction. The rent cases filed by the present appellant were allowed, the respondents had preferred appeals which were dismissed in limine.
2. Thereafter, the respondents filed petitions for leave to appeal before the Hon'ble Supreme Court of Pakistan which was also dismissed with observation that after reconstruction of the flats the present appellants will reinduct the tenants, However, subsequently the present appellants preferred the rent cases as above before the Rent Controller on subsequent cause of action. The case of the appellants is that the respondents/tenants have committed wilful default in payment of electricity bills as at the time of their handing over vacant possession they had not cleared the arrears of the K.E.S.C. And that the present appellants were informed of this fact by K.E.S.C. When he wanted to demolish the structure and for that purpose he approached the K.E.S.C. Authorities with the request for removal of their electricity meters. The case of the appellants is that electricity charges being a part of the rent, non-payment thereof would amount to default, and therefore, the respondents would lose their right of reduction. The rent case was vehemently contested by the present respondents. Their contention is that the respondents had cleared off all the arrears of electricity at the time of their vacating the premises and that these facts also came under consideration before the Hon'ble Supreme Court in the application moved by them for review of the previous orders and that the Hon'ble Supreme Court did not give any specific finding on this point, and therefore, it should be deemed that the said plea of the appellants was rejected. Learned counsel for the respondents has further argued that in two of the cases being present F.RA. Nos.471 and 475 of 1994 the very rent cases as filed were not maintainable in law. Lastly the learned counsel for the respondents has taken the plea that the prayer made in the rent case is in the form of '' declaration which could be granted only under section 42 of the Specific Relief Act in a civil suit and not in a proceeding under Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance.
3. ' I have heard Mr. Muhammad Sharif, learned counsel for the appellants and Mr. Khalid Latif, Advocate for respondents. As regards factual aspect, the main contention of the learned counsel for the respondents is that the respondents had handed over the possession of the disputed premises to the appellants/landlords on 15-2-1993 by which date the respondents had cleared all the outstanding bills of electricity. He has referred to photostat copy of such receipt signed by the 2 Advocates showing the handing over and taking over. This receipt of course shows handing over taking over the possession but it does not mention if all the arrears of electricity are cleared.
4. Learned counsel has pointed out that photostat copies of the bills which have been placed on the record do show that the payments have been made by the respondents till the month of January, 1993. He has also produced photostat copies of certain letters written by him to KESC and a letter from KESC dated 21-5-1995 which shows that certain inquiry was held and ultimately in the last paragraph of the said letter it is observed "since the supplementary bills issued are wrong in principle and there is no chance of recovering the amount it is suggested that the subject bills, summarized as under may be withdrawn". From this Mr. Khalid Latif has argued that these bills were false and have been procured from KESC in order to make a ground against the present respondents. As against this Mr. Muhammad Sharif, learned counsel for the appellants has argued that in the first instance all these documents and copies of bills are being produced during the course of hearing of this appeal and were never brought on record before the Rent Controller. He has submitted that the above conclusion of the KFSC in its letter would show that it has not been held that these bills were false or forged but all that is said is that these bills are wrong and there is no chance of recovering the amount therefore the bills may be withdrawn. He has submitted that in each appeal the respondents themselves have moved application under section 21 of the Ordinance praying for holding of an inquiry of facts.
5. ' It is an admitted fact that the order was passed by the Hon'ble Supreme Court in review application on 10-8-1993 whereas the case of the appellants in present-matter is that it was on 16- 9-1993 that the appellants were informed by the KESC about the outstanding amounts pertaining to electricity charges for which the KESC has also issued separate bills. In these circumstances, also it can be assumed that the knowledge of the outstanding arrears as claimed in the present rent cases was acquired by the appellants only after the orders were passed by the Hon'ble Supreme Court, and therefore, this could afford a fresh cause of action.
6. ' I have carefully considered the above submission of the learned counsel. From this discussion and submission of the counsel and from prayer made by the respondents it would appear that in order to arrive at a conclusive finding it would be necessary that the parties be permitted to lead evidence and to extract the fact as to whether the arrears of electricity were outstanding or not and for this purpose parties will have to be subjected to cross-examination as well.
7. ' The other point which arises out of above discussion would be as to whether the acquisition of the knowledge of outstanding electricity charges would afford a fresh cause of action to the appellants. The contention of the Advocate for the respondents is that since the possession was handed over to the appellants the respondents would not be liable for any penal action. As against this Mr. Muhammad Sharif, Advocate for the appellants has submitted that the possession which has been received by the appellants in consequence of the ejectment orders passed against the tenants is only a notional possession held by appellant on behalf of the respondents. He has submitted that in the present case the orders show that the respondents are evicted only to be reinducted on the construction of the building, and therefore, the possession which is held at present by the appellants/landlords is only a notional possession. It may be observed that the possession can be "possession in fact" or "possession in law". It may further be observed that even otherwise possession can be of different kinds and one of such kind is mediate possession. Mediate possession would mean possession hold by one on account of or recognizing the right of the other to obtain the direct possession from the holder on completion of or fulfilment of certain event. In the present case, the appellants would be holding the possession on behalf of the tenants to hand over the same after reconstruction of the building. Reliance may be placed on the case of Muhammad Rifatullah Alvi v. Imran Ansari PLD 1990 SC 369. Learned counsel for the appellants has also placed reliance on the case of Matloob v. Mst. Saeeda Khatoon reported in 1988 SCM R 1575, in this case their Lordships have been pleased to hold as under:--- "As the second contention, it is sufficient to state that obtaining possession on the ground of reconstruction does not ipso facto terminate the tenancy of the tenant who was in occupation of such premises at the time of such an order. The reason is that upon reconstruction of a new building the law gives the tenant of the old premises the option to be reinstated in the new building. It, therefore, follows that during the time the new construction is being set up, part of the building to be constructed is held by the landlord in trust for the benefit of the ousted tenant, until such time as it becomes certain that the tenant does not exercise his option of reinstatement within the prescribed time. Therefore, it will not be correct to say that the respondent is in occupation of another building of her own at the time when the eviction order in this case was passed."
8. ' Similarly, in the case of Ghulam Nabi v. Mushtaq Ahmed PLD 1980 SC 206 their Lordships have held that reinduction in such cases under the old law is a right of the tenant and he could not be deprived of such right in view of the provisions of section 13(5-B) of the West Pakistan Urban Rent Restriction Ordinance, 1959. Thus, the outcome of the above discussion is that the right of the tenant would continue even after the possession has been handed over to the landlord in compliance with the order of ejectment passed on the plea of demolition and reconstruction.
9. Therefore, the relationship of landlord and tenant would continue with the consequence that the tenant can be made liable for any penal action or eviction as contemplated under the rent laws.
10. ' Now I take up the question with regard to maintainability of the rent case. The objection raised by the learned counsel for the respondents with regard to the plea that the prayer in the rent case in terms of the declaration can only be granted under section 42 of the Specific Relief Act in a suit and not in the rent case. Mr. Muhammad Sharif, counsel for the appellants has submitted that this is the only mode in which the appellants could have sought their reliefs. He has argued that at present physical possession had been handed over to the appellants, and therefore, appellants could not have sought the relief of eviction but the only relief that he could have sought is to the effect that the respondents be declared to have lost their right to tenancy or their right of reinduction. It may be pertinent to reproduce the prayer clause in the application which reads as under:--- 'In view of the above circumstances, it is prayed that this Hon'ble Court may be pleased to declare that the opponent is defaulter in payment of electric charges which is part of rent and liable to pay the same and also declare that the opponent damaged the tenament/Flat No,10 situated at Clifton, Hussain D' Silva Park, Karachi and due to aforesaid default and damages the opponent has lost his right of reinducting in the flat of new building any better relief/reliefs which this Hon'ble Court deem fit and proper in the circumstances of the case may be awarded."
11. ' The concluding sentence of the above prayer clause is with respect to the respondents having lost their right of reinduction. It may be observed that mere use of word "declare" would not render the prayer as one under section 42 of the Specific Relief Act. It is the substance which has to be looked into and not mere words. The learned counsel for the respondents has further argued that the tenancy in the present case is governed by the previous Ordinance of 1959 and not the Ordinance of 1979. He has submitted that therefore, the rights of the parties will be governed as under the old law. It may be observed that though in some cases the original agreement of tenancy were executed prior to 1979 i,e, promulgation of the new Ordinance but the same being only for 11 months stands expired long ago and were not renewed. Learned counsel for the appellants has relied on the case Abdul Rehman v. Haji Mir Ahmed Khan PLD 1983 SC 21 which lays down that in the matter pending before Court at the time of promulgation of new law, the rights of the parties will be governed under old law while the procedure will be that of new law. This is not the case in the matter in hand. However, it may be observed that the simple question which is involved in the present case is as to whether the present respondents continue to be the tenants of the appellants and if so whether they are governed by rent laws for any subsequent event which in the present case is the acquisition of the knowledge of default committed on part of the tenants. I have already discussed that this is a point which would require recording of the evidence.
12. ' Other objection raised by the learned counsel for the respondents is that in two of the present cases the tenancy is in the name of Body Corporate and a firm, and therefore, the present application against individuals would not be maintainable. In the case of present F.RA. No,471 learned counsel has submitted that the tenancy is in the name of Power Engineering which is a limited company, and therefore, the rent case against Amant H. Khan would not be maintainable and similarly in the other case against Sam Mawalwala the tenancy is in the name of Asha Motors, and therefore, this application in the name of individual is not maintainable. He has referred to provision of Orders 29 and 30 of the Civil Procedure Code. The counsel for respondents has also relied on the case of Ghulam Nabi v. Mushtaq Ahmed PLD 1980 SC 206. This case would not be helpful to the learned counsel. On the contrary in this case their Lordships have held that the provisions of Civil Procedure Code are not applicable in case of proceeding before the Rent Controller. The other case relied on by the learned counsel is that of Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1. The facts of this case are different from the present case and have no bearing on the present case. Learned counsel has also referred to the case of Sheerin Bai v.
13. Muhammad Hanif and others 1986 M LD 2020 wherein a learned Single Judge of this Court has held that in the given circumstances the right of tenant for restoration of possession cannot be defeated by sale of building by landlord who had obtained the possession on the ground of reconstruction. This case also has no bearing on the present case. It may be observed that it is settled law that the provisions of Civil Procedure Code are not applicable to the rent cases. In the case of Messrs Combined Enterprises v. Water and Power Development Authority, Lahore PLD 1988 SC 39 their Lordships while dealing with the provisions of Order 30, Rule 1, C.P.C. Have observed that a partner is the agent of the firm for the purposes of business of the firm. It is also observed that under the law a firm is not a juristic person but a compendious name for all persons who are the partners of the firm and the effect of the suing of the name of the firm is to bring all the partners before the Court which is a convenient method for suing the persons who constitute the firm at the time of the accrual of cause of action and decree in favour of or against a firm, has the same effect as a decree in favour of or against all the partners. However, as discussed above that the provisions of Civil Procedure Code are not applicable in rent cases, it would be open for the Rent Controller to adopt the procedure as considered by him to D be appropriate. This provision is also with regard to procedure and not the substantive rights created under Civil Procedure Code.
14. ' In view of the above discussion I am of the opinion that appellants could not be non-suited merely on technical ground but the Rent Controller should have allowed them an opportunity to lead evidence and plead their case on merits. This is also the prayer made by the respondents in their applications under section 21 of the Ordinance. In these circumstances, I accept these appeals, set aside the orders passed by the Rent Controller and remand the case with directions that parties may be allowed an opportunity to lead evidence and bring on record the documents, if any, according to law and then pass orders on merits. However, there will be no order as to cost. No further orders are to be passed in execution till final orders as above are passed.