' AJMAL MIAN, CJ.---This is an appeal with the leave of this Court against the judgment dated 30- 12-1993 passed by a learned Single Judge of the High Court of Sindh in F.R.A.No,577 of 7989 filed by the respondent against the order of ejectment dated 2-9-1989 of the learned Vth Senior Civil Judge/Rent Controller, Karachi (East), in Rent Case No,5611 of 1980, on the ground of default, allowing the same by recording a finding that in view of section 3(1) of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, the provisions of the same were not applicable.
2. The brief facts are that the appellant obtained a lease dated 12-7-1962 from the President of Pakistan in respect of a plot of land measuring 1736 sq. Yards, hereinafter referred to as the plot, for a period of 10 years in the first instance and thereafter, renewable. Clause (7) of the lease agreement provided as follows:- "7. The lessee shall not sublet, sell, mortgage or transfer in any manner or part with the plot or structure erected/installed on the said plot of land or a part thereof to any one except to a Petroleum Company, without prior written permission of the Executive Engineer, Pak. P. W.D . "
3. Pursuant to the above clause the appellant, with the permission of the Executive Engineer, leased out the plot to the respondent on 31-7-1957. It appears that in October, 1980, the appellant filed the above rent case on the ground of default for the period from July, 1979. It seems that after the service of the notice, the respondent filed an application under section 3(1) of the Ordinance praying therein that the aforesaid rent case be summarily rejected as the property in question belonged to the Government. However, the above application was dismissed by the learned Rent Controller by her order dated 29-11-1983. After that, the matter proceeded before the learned Rent Controller on merits, inasmuch as she framed two issues, recorded evidence and heard the parties and thereafter, rendered her aforesaid order dated 29-11-1983 granting ejectment by holding that there was default. Against the above order of ejectment the respondent filed aforementioned F.R.A., which was allowed on the ground that the above rent case as not competent in view of subsection
(1) of section 3 of the Ordinance. Thereupon, the appellant filed a petition for leave to appeal which was granted to consider, whether the learned Judge in Chambers was right that the aforesaid rent case was not competent in view of subsection (1) of section 3 of the Ordinance though admittedly the premises were covered by the definition as given in clause (h) of section 2 of the Ordinance and relationship between the appellant and the respondent was that of landlord and tenant as defined by clauses (f) and (j) respectively of section 2 of the Ordinance.
4. In support of the above appeal Mr. Shahenshah Hussain, learned counsel for the appellant, has vehemently contended that since admittedly the respondent was a tenant of the appellant and as the premises were covered by the definition of "premises" given in clause (h) of section 2 of the Ordinance and the parties are covered by the definitions of the terms "landlord" and "tenant" as given in clauses (f) and (j) of section 2 of the Ordinance, the learned Judge in Chambers was not justified to non-suit the appellant on the ground that the provisions of the Ordinance were not applicable.
' On the other hand Mr. Usman ghani Rashid, learned A.S.C. Appearing for the respondent, has vehemently urged that as admittedly the land which was let out by the appellant to the respondent belongs to the Federal Government, subsection (1) of section 3 of the Ordinance is applicable and hence no exception can be taken to the judgment under appeal.
5. In order to appreciate the above contentions, we may refer to the definitions of the terms "landlord", "tenant" and "premises" given in clauses (f), (j) and (h) of sections 2 and 3 of the Ordinance, which read as follows:- Clauses (f), (j) & (h) of section 2 of the Ordinance.
"(f) 'landlord' means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises; "
"(j) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises 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; "(h) 'premises' means a building or land, let out on rent, but does not include a hotel;"
Section 3 of the Ordinance.
"3.
Applicability.- -(1) Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government or Provincial Government, situated within an urban area, shall be subject to the provisions of this Ordinance.
(2) Government may, by notification, exclude any class of premises, or all premises in any area from operation of all or any of the provisions of this Ordinance."
A perusal of the above definition of the term "landlord" indicates that it means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises. Whereas the definition of the term "tenant" had been defined as means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes any person who continues to be in possession or occupation of the premises after the termination of his tenancy or heirs of the tenant in possession or occupation of the premises after the death of the tenant. It may also be noticed that the term "premises" has been defined as means a building or land, let out on rent, but does not include a hotel.
It may further be. Pointed out that subsection (1) of section 3 of the Ordinance lays down that notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government or Provincial Government, situated within an urban area, shall be subject to the provisions of the Ordinance. Whereas subsection (2) thereof empowers the Government, by notification, to exclude any class of premises, or all premises in any area from operation of all or any of the provisions of the Ordinance.
6. It seems to be an admitted position that the appellant and the respondent are covered by the definitions of the terms "landlord" and "tenant" as given in clauses (f) and (j) of section 2 of the Ordinance reproduced and discussed hereinabove. It is also an admitted position that the land which has been let out by the appellant to the respondent falls within the purview of the definition of the term "premises" given in clause (h) of section 2 of the Ordinance referred to hereinabove. The only question which requires consideration is, as to whether the fact that the appellant had taken the suit plot on lease from the Federal Government would attract the provision of subsection (1) of section 3 of the Ordinance.
7. Mr. Shahensah Hussain, learned A.S.C. For the appellant, has invited our attention to the definition of the term "owner" given in the Stroud's Judicial Dictionary of Words and Phrases, Fourth Edition, Volume 3, and Words and Phrases, Volume 30-A; and to the definition of the term "tenant" given in the latter dictionary. The above definitions read as under:- ' Stroud's Judicial Dictionary.
"Owner.--(1) The 'owner' or 'proprietor' of a property is the person in whom (with his or her assent) it is for the time being beneficially vested, and who has the occupation, or control, or usufruct, of it; e.g. a lessee is, during the term, the owner of the property demised (see judgment of Bramwell L.J., Eglinton v. Norman, 46 L.J.Q.B. 559; see also Chauntler v. Robinson, 4 Ex. 163; Russell v. Shenton, 3 Q.B.
449; Lister v. Lobley, L.J.K.B. 200). So, in Cook v. Humber 31 L.J.C.P.
75. Erle C . J., spoke of the 'occupation' necessary to the franchise, under Representation of the People Act, 1832 (c.45), section 27, as equivalent to the 'actual exercise of the rights of the owner of a house in possession.' But in Re Crawley Acton v. Crawley, 28 Ch. D.431, Pearson J., siad, 'the owner - that is, the person entitled to the rack-rent. Cp. HERITOR."
Words and Phrases.
"The term 'owner' as used in the Code of law, relating to homesteads, includes one who has merely a term of years or leasehold interest in the land."
"A tenant under a lease is an 'owner' of property within meaning of that term as used in condemnation statutes, and his lease-hold may not be taken or damaged for public use without payment of just compensation."
' He has also referred to the following commentary from the book titled "Law of Rent Control, Eviction & Leases", Second Edition, Volume 2:- "The word 'owner', as used in proviso (e) to section 14(1) of the Delhi Rent Control Act, 1958, does not mean that the person concerned must necessarily be absolute owner of the site on which he has constructed a building which has been let out to the tenant whom he seeks to eject. In the case of T.C. Rekhi v. Smt. Usha Gujarat 1970 RCR 292 (Delhi): ILR (1969) Delhi 9), it was held that:--
(a) The word 'ownee.As used in section 14(1)(e) has to be construed in the background of the purpose and object of enacting it. The use of this word has been inspired by the definition of the word 'landlord' as contained in section 2(e) of the Act.
(b) The word 'owner' includes all persons who have taken a long lease of sites from the Government for the purpose of building house thereon. The concept of ownership seems to be eclipsed by its social and political significance and the idea of ownership is one of the better rights to be in possession and to obtain it.
(c) The word 'owner' does not postulate absolute ownership in the sense that he has an absolutely unrestricted right to deal with the property as he likes. To describe someone as owner, and perhaps even as an absolute owner, of property is to say two things:
(i) his title to the property is indisputable; and
(ii) he has all the rights of ownership allowed by the legal system in question.
(d) Rights of ownership may, therefore, be limited by special provisions of law."
A perusal of the above definition of the word "owner" given, inter alia, in the Stroud's Judicial Dictionary, inter alia, connotes the person in whom the property for the time being beneficially vested, and who has the occupation or control or usufruct of it; for example, a lessee. Whereas the definition of the term "owner" quoted from the dictionary titled Words and Phrases shows that the term "owner" may include one who has merely a term of years of leasehold interest in the land. It may further be observed that the extract from the aforesaid treatise on the "Law of Rent Control, Eviction & Leases" also demonstrates that in India the term "owner" has a very wide connotation which includes in the context of the relevant provisions a lessee.
8. Mr. Shahenshah Hussain has referred to the case of the Indian Supreme Court, namely, Smt.
Shanti Sharma and others v. Smt. Ved Prabha and others (AIR 1987 SC 2028), in which the Indian Supreme Court while construing section 14(1)(e) of Delhi Rent Control Act, 1959, held that the word "owner" used therein includes a person holding land on long lease from the authority constituted by the State. It would be advantageous to reproduce para. 14 of the judgment which reads as follows:- - "14. The word 'owner' has not been defined in this Act and the word 'owner' has also not been defined in the Transfer of Property Act. The contention of the learned counsel for the appellant appears to be that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State and in this view of the matter it could not be thought of that the Legislature when it sued the term 'owner' in the provision of section 14(1)(e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term 'owner' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. This Act has been enacted for protection of the tenants.
But at the same time it has provided that the landlord under certain circumstances will be entitled, to eviction and bona fide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of the tenant. In this context, the phrase 'owner' thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order of decree for eviction, the only thing necessary for him to prove is bona fide requirement and that he is the owner !Hereof. In this context, what appears to be the meaning of the term 'owner' is vis-a-vis the tenant i.e, the owner should be something more than the tenant.
Admittedly in these cases where the plot of land is taken on lease the structure is built by the landlord and admittedly he is the owner of the structure. So far as the land is concerned he holds a long lease and in this view of the matter as against the tenant it could not be doubted that he will fall within the ambit of the meaning of the term 'owner' as is contemplated under this section. This terns came up for consideration before the Delhi High Court and it was also in reference to section 14(1)(e) and it was held by the Delhi High Court in T.C. Rekhi v. Smt. Usha Gujaral, 1971 Ren CJ 322 at p.326 as under:- 'The word 'owner' as used in this clause has to be construed in the background of the purpose and object of enacting it. The use of the word 'owner' in this clause seems to me to have been inspired by the definition of the word 'landlord' as contained in section 2(e) of the Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any other person. Construed in the context in which the word 'owner' is used in clause (e), it seems to me to include all persons in the position of Smt. Usha Gujral who have taken a long lease of sites from the Government for the purpose of building houses thereon.
The concept of ownership seems now to be eclipsed by its social and political significance and the idea of ownership, in case like the present is one of the better right to be in possession and to obtain it. To accede to the contention raised by Shri Kapur would virtually nullify the effect of clause
(e) and would render all such landlords remediless against tenants however badly then may need the premises for their own personal residence. I do not think such a result was intended by the Legislature and I repeal the appellant's contention. I consider it proper before passing on to the next challenge to point out that the word 'owner' as used in clause (e) in section 14(1) does not postulate absolute ownership in the sense that he has an absolutely unrestricted right to deal with the property as he likes. To describe some one as owner, and perhaps even as an absolute owner of property is to say two things: it is to assert that his title to the property is indisputable and that he has all the rights of ownership allowed by the legal system in question. Rights of ownership may, therefore, be limited by special provisions of law and include in those provisions such as are in force in New Delhi according to which citizens are granted long leases of sites for constructing buildings thereon. Now, the words of a statute, though normally construed in their ordinary meaning, may contain inherent restrictions due to their subject-matter and object and the occasion on which and the circumstances with reference to which they are used. They call for construction in the light of their context rather than in what may be either strict etymological sense or their popular meaning apart from the context (See Halsbury's Laws of England Third Edition Vol. 36 para. 893, p.394). The meaning of the word 'owner in clause (e) is influenced and controlled by its context and the appellant's construction is unacceptable because it seems to be quite clearly contrary to the reasonable operation of the statutory provision."
9. The above report supports Mr. Shahenshah's contention. The term "owner" or the word "owned" is to be understood with reference to the context in which it has been used. It may include a lessee.
10. It will not be out of context to refer to the judgment of this Court in the case of Kamaluddin Ansari v. Director, Excise and Taxation, Karachi and Another (PLD 1971 SC 114), in which the facts were that the Government of Pakistan had granted through the President licence for a large area of land inter alia of P.E.C.H. Society at Karachi, which developed the area and carved out plots, it allotted the same to its members who raised constructions thereon. The plots of land and the constructions were subject to property tax under the West Pakistan Urban Immovable Property Tax Act, 1960. Section 4(a) of the West Pakistan Urban Immovable Property Tax Act provided that the tax shall not be leviable in respect of the properties mentioned therein i.e, buildings and lands, other than those leased in perpetuity, vesting in the Federal Government. The allottees challenged the levy of tax on the ground that they were merely licensees of the plots, the plots were vested in the Government and, therefore, they were not liable to pay any property tax. This Court repelled the above contention and while affirming the High Court's judgment made the following observations:- - "I have no doubt that for all practical purposes the sub-licensees have become the holders of a permanent lease. The appellants and the other sub licensees are either living in the houses constructed by them or have rented them out to the tenants. In short, but for the technical objection that no registered lease has been executed the lands are leased out in perpetuity, and it would indeed be very difficult for the Government to oust them. In any proceeding for ejectment section 53-A of the Transfer of Property Act would afford a valid defence against the ejectment.
The agreements clearly show that the Government has intended to divest itself and to vest the lands in the sub-licensees, but the matter have apparently mala fide omitted to execute the lease as they were required to do under the terms of the agreement. In these circumstances to accept the appellant's contention is not only to act directly against the intention of the Legislature as contained in section 4 of Act V of 1958 but also to help the appellants in their wrongful efforts to evade the payment of tax under the said Act."
11. In our view, subsection (1) of section 3 of the Ordinance will be applicable if the appellant was to file a case against the Government as admittedly he is the lessee from the Government in respect of a plot which vests in the Federal Government. In other words, he will not be able to invoke the provisions of the Ordinance in a dispute between him and his lessor, the Federal Government.
However, since the dispute is between the appellant as the landlord and the respondent as the tenant which does not involve the interest of the Government as to the possession, it is, covered by the provisions of the Ordinance and the appellant, the respondent and the suit land are covered by the definitions of the terms "landlord", "tenant" and "premises" given in section 2 of the Ordinance already referred to hereinabove.
12. In this view of the matter, the High Court was wrong in non-suiting the appellant on the ground that subsection (1) of section 3 of the Ordinance was applicable. The reference to the judgment of this Court in the case of Mrs. B.S. Khan v. Pakistan State Oil Company Ltd. (1989 SCM R 75) in the judgment under appeal is not relevant as K.P.T. Property was exempted under subsection (2) of section 3 of the Ordinance and, therefore, it was not a case under subsection (1) of section 3 of the Ordinance.
13. The upshot of the above discussion is that the appeal is allowed; the judgment under appeal is set aside and the case is remanded to the High Court to decide the aforesaid F.R.A. Filed by the respondent on merits on the question of default. Since the parties have been litigating for quite long period, the High Court may dispose of the case within six months. However, there will be no order as to costs.