' Learned counsel, in support of this second appeal filed by a tenant calling in question the striking of his defence under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 contended.
(i) that the appellant having in his written statement denied the relationship of landlord and tenant, the learned Rent Controller had no jurisdiction to proceed under section 13(6) without framing an issue on the question of relationship and deciding the same after affording formal opportunity of contest between the parties on the said issue
(ii) that even if framing of an issue in formal context was not necessary, no opportunity otherwise was afforded to the appellant in this case to substantiate his plea of denial of relationship ;
(iii) that even according to the position taken from the respondent side before the learned lower Appellate Court that he used to receive the rent on behalf of his wife owner of the property, he would not become a landlord unless he had written authority from his wife to receive the rent ; and lastly.
(iv) that in reality the respondent's wife had withdrawn the authority, if any claimed by the respondent, to receive rent on her behalf, therefore, he could not, in any case, be treated as a landlord.
2. As some question was raised with regard to the position taken by the respondent in the replication and by the appellant before the learned lower appellate Court and as copies of all the relevant documents were not available during the motion hearing, therefore, I sent for the records which have been perused with the help of the learned counsel.
3. The respondent had claimed in the eviction application that the appellant was a tenant under him on payment of Rs, 300 per mensem as rent. The tenancy was oral. It was further claimed that the appellant had failed to pay the rent from January 1973 to September 1975 despite repeated demands (copy of notice dated 22-9-75 was also annexed with the petition). Consequently, eviction was sought on two grounds-default in payment of rent ; and damage to the property impairing its utility and value.
4. In the written statement filed by the appellant, a bare denial was made of the relationship of landlord and tenant without adverting even indirectly to the fact that the owner of the property is the wife of the respondent or to the circumstance that notwithstanding the fact that he had been receiving the rent from the appellant, he could not be accepted as landlord on any subsequent development, namely, withdrawal of authority. The denial was so bland that in para. 2 of the preliminary objections, Mst. Kaniz Fatima the owner, who it is now admitted was to the knowledge of the appellant the wife of the respondent, was described as "the actual owner and landlady is one Mst. Kaniz Fatima and not the present petitioner. . . ."
5. In the reply submitted by the respondent, the denial of relationship of landlord and tenant and preliminary objection in this behalf was repelled as incorrect and frivolous. It was stated that the premises were taken by the respondent on rent in August 1966. The respondent used to receive the rent from the appellant from the very beginning and he used to issue the receipts on behalf of his wife, namely, Mst. Kaniz Fatima. However, since October 1971, the rent was paid directly to the respondent in his name and receipts were accordingly issued by him to the appellant. In accordance with this very arrangement, the appellant paid the rent from October 1971 to July 1972 to the respondent through cheque dated 15.6-73. A receipt was issued to him by the respondent for this payment on the same day, Le,, 15-6-73. The appellant issued another cheque on 3-12-73 representing rent from August 1972 to December 1972 to the respondent and a receipt in this behalf was also issued by him. Not only this, it is further averred in the replication, the appellant also signed the counterfoil of the receipt dated 3-12-73. Thus, it was represented in the replication that the respondent was entitled to receive the rent from the appellant. Other averments made in the eviction application were also reiterated. Two certificates issued by the concerned bank on 5-12-75 show that the cheques issued by the appellant were paid to the respondent. Photostat copies of the counterfoils were also produced before the learned Rent Controller showing that the appellant had obtained the receipts from the respondent for payment of rent and in token thereof had signed the counterfoil of the receipt dated 3-1243.
6. On 9.12-75, after the submission of the replication and the aforementioned documents before the Rent Controller, it appears, the question was considered as to whether there was any basis for formal denial of relationship of landlord and tenant made in the written statement. The position taken by the appellant now as also before the Rent Controller is clear. Learned counsel states that the appellant never denied having paid the rent to the respondent, but the latter's authority to receive the rent was not accepted by him (appellant)- neither directly or indirectly. There being no denial at that stage from the appellant side with regard to his having paid the rent to the respondent and the latter having received it from him on behalf and for benefit of his wife, the respondent was not expected to show or prove anything further. Prima facie, under the law, he was to be treated as landlord (see definition of landlord'-section 2(c) of the Ordinance) because he would be covered by the expressions "on behalf or for the benefit of". When the learned Rent Controller fouud that in pith and substance there was no denial of the necessary ingredients which constituted the respondent a landlord as defined in the Ordinance, he, after noticing the objection of the appellant, repelled it on the ground inter alia that the appellant had been paying the rent to the respondent. Having done so, he proceeded to pass an order for deposit of rent under section 13(6).
7. In the grounds of appeal and written arguments submitted from the appellant side before the learned lower appellate Court, position was taken that "the appellant issued cheques in the name of Muhammad Amin being the husband of Kaniz Fatima and the receipt issued by the respondent was as Mohammad Amin for Kaniz Fatima so actually Kaniz Fatima is the landlady and the respondent has absolutely no concern whatsoever (para. 6 of the grounds of appeal). It was asserted that the wife of the respondent is the real owner, of the property that she used to receive and appropriate the income thereof and that the appellant was her tenant. In addition to this, a very important admission was made in the written arguments, with a request to the learned lower appellate Court to particularly note this aspect, that' Kaniz Fatima being a pardahnashin lady, the respondent used to receive the rent on her behalf". It was, however, also pointed out that there was no written authority given by Mst. Kaniz Fatima to the respondent in this behalf. The appellant in the same connection produced documents before the learned lower appellate Court showing that Mst.
Kaniz Fatima was the owner of the property in dispute and further that the respondent used to receive rent on her behalf and for her benefit. As many as fourteen receipts were produced by him showing that respondent Mohammad Amin used to receive rent from the appellant. In some of these receipts, though few in number, it is also mentioned that he received the rent for Mst. Kaniz Fatima. It is thus abundantly clear that the appellant never denied the fact that the respondent used to receive the rent from him and that he also used to issue the receipts to him. Further proof furnished at the lower appellate stage also established that the respondent used to receive the rent on behalf and for the benefit of his wife. It is for the first time in the grounds of appeal submitted in this Court as also during the arguments that a new position has been taken, namely, that "the Courts below have erred in law in not appreciating the submission that when the husband and wife were on consideration and wife had authorised the husband to collect rent on her bobs the appellate bad paid rant to the authorities puma but this 401 utadu the person so authorised in perfectively even when he was shorn of such powers by the owner and had cancelled the authority and told the tenant not to pay hint the rent" (sub-para. (d) of grounds para. 6), Probably it is in this context that in an earlier paragraph (5), it was asserted though wrongly, that Mst. Kaniz Fatima had never authorised the respondent to recover the rent from the appellant. When read together it is legitimate to presume that at this second appellate stage, the appellant's case is that though the respondent was authorised by his wife to receive the rent on her behalf, she had withdrawn this authority at a subsequent stage.
8. I gave the learned counsel opportunity to make any statement, if he has been so instructed, indicating any material to support this belated plea of withdrawal of authority. He candidly stated that there was none though he asserted that if now an inquiry is held, something might be forthcoming. I did not agree to this suggestion for the simple reason that if there would have been any such material, the appellant would have certainly submitted it with the written statement and/or on the day when the question of relationship was considered by the Rent Controller and, at any rate, before the 13wer appellate Court wherein ho submitted many documents in support of the fact that the respondent's wife was the owner and that he has been receiving rent on her behalf. I also asked the learned counsel whether the appellant made any attempt to pay the rent directly to the wife of the respondent or through correspondence or otherwise indicated to her that he will pay the rent to her alone and not to het husband. The response was in the negative. At one stage, the learned counsel had surmised that there might be a dispute between the husband and the wife ; on which I asked him whether the appellant on this assumption had at any stage tendered the rent before the Rent Controller or had made any such disclosure; the answer again was in the negative. It appears that the entire plea taken by the appellant at this second appellate stage, namely, that the earlier authority given by the respondent's wife to him for collecting rent was at any subsequent stage withdrawn, is an afterthought and the same is accordingly repelled. I, therefore, proceed to decide this appeal on the other admitted position, namely, that the arrangement from the beginning between all concerned-though verbal and through conduct-was that the appellant used to pay the rent to the respondent who used to collect it on his wife's behalf and for her benefit sometimes by writing it in so many words on the receipt and at others without writing so but on clear understanding with the appellant ; otherwise, he would not have paid the rent to him.
9. The above resume of facts show that the bare denial of relationship of landlord and tenant by the appellant, as made in the written.Statement, was not only frivolous but, for reasons best known to him, he had withheld even the obvious truth and admitted position. Thus, he had raised a frivolous and mala fide plea of denial of relationship. In this context, question arises whether the Rent Controller, after having clearly understood and found such a position, was still bound to frame an issue and adjourn the proceedings from time to time till the concerned party/s chose to close their evidence and then to decide the issue of relationship in a formal manner. Although it would depend up, n the circumstances of each case, I would not accept the proposition that it is always necessary for the Rent Controller to frame an issue and decide it in a formal manner after formally affording opportunity of adducing evidence to the parties. As held in Khadim Mohy-ud-Din and another v. Ch, Rehmat Ali Nagra and another (1), the Rent Controller is not bound to hold an inquiry in a particular manner and by adopting a particular procedure. Although some of his functions are judicial in character yet be is
(1) PLD 1965 SC 459 not required to act judicially in discharging all his functions. At the most, it can be said that he acts in a quasi-judicial capacity. It is with this qualification that their Lordships were further pleased to hold that the power conferred on the Rent Controller is purely executive. Thus, it cannot be said that the Rent Controller is bound, on every question being raised, formally to frame issue as if he was acting under Civil Procedure Code as a civil A Court. This view also finds support from Raja Muhammad Afzal Khan, etc. v. Zareena Akram, etc. (1). With regard to the type of inquiry which the Rent Controller is required to hold, it is essential to refer to the latest pronouncement of the Supreme Court in this behalf. In Javald kbal v. Rana Muzaffar Khan (2). While reiterating the view taken in Ghulam Muhammad Khan Lundkhor v. Safdar All (3), their Lordships were pleased to hold as follows :- "It cannot be accepted as a precedent laying down as a proposition of law that opportunity must always he allowed to the tenant to adduce evidence before the defence is ordered to be struck of Indeed strictly speaking the provisions of the Evidence Act and the Civil Procedure Code are not in terms applicable to the proceedings before the Rent Controller under the Ordinance.
' All that is required is that the defaulting tenant should be allowed a fair opportunity to explain away the default on his part before his defence is struck off."
' Though the proposition before their Lordships was whether defence can be struck off without affording a formal opportunity of hearing including right to adduce evidence before striking off of the defence, yet the proposition in the present case is not materially different. If the Rent Controller hears the tenant who has also opportunity of relying on anything that might be in his possession and/or showing the same to the Rent Controller, it would not be necessary for the latter in all cases to decide the question of relationship of landlord and tenant as an independent proceedings/suit. I hasten to qualify this observation by a note of caution to Rent Controllers that there might be cases wherein substantial questions of fact mixed or otherwise with law might be bona fide raised and which might require recording of evidence. Such cases might be rare because in highly controversial and complicated cases of title, the Rent Controller might not like to go into the details.
In other cases, the question of relationship of landlord and tenant might be easy to resolve on the pleadings of the parties, documents tiled therewith and/or better statement/s recorded immediately after the pleadings. There might be still some cases, as the present one, wherein the objection on the face might look frivolous and mala fide and it might also be possible to visualise that the same might have been raised by the tenant to prolong the proceedings so as to gain undue time. In the latter cases, the Rent Controller could be empowered, after of course noticing the objection, to overrule the same by an order which should ordinarily be speaking indicating application of mind in the other cases falling in the middle category, one short adjournment or at the most two might be enough to conclude the controversy without formalising the same in the form of issue and recording of formal evidence. These adjournments might be necessitated to send for the parties so that better statements could be recorded. In the other category, wherein as noted earlier
(1) PLJ 1974 Lab. 487 (2) 1976 SCM R 229
(3) PLD 1967 SC 530 rare cases would fall, somewhat detailed examination of evidence with 04 without framing the issue might be necessary. In this case, as discussed earlier, the plea taken was, to say the least, not bona fide, It was no necessary to hold any detailed inquiry nor was it essential for the learned Rent Controller to frame an issue. His order dated 9-12-75 shows that h was conscious of the objection and further that he having applied mind to the same and having considered the admitted position of the appellant having continuously paid the rent to the respondent, repelled/ignored it as frivolous. This procedure does not contravene any law nor any principle. It may observed though no reliance has been placed on the Full Bench ruling of this Court in Akhtar All Parvez v. Altafur Rehman which forms the basis of the view that when question of jurisdiction is raised it must be treated as a preliminary objection and resolved before taking any further action, yet I having taken note thereof find that the above view finds support from the said ruling also. It was observed as follows:- "When an objection is taken to the jurisdiction of the Tribunal, that objection must be treated as a preliminary objection and must be resolved before taking any further action. That, however, does not mean that once an objection to jurisdiction is taken, an adjournment m the case must automatically follow. An adjournment in the case is necessitated only when the question raised is one that can be determined by that Tribunal and requires materials which are not before the Tribunal and to bring which time is necessary. If the objection raised is capable of being considered and disposed of on the materials before the Tribunal, an adjournment ought not to be- granted. (page 404 of the report).
' The Rent Controller should immediately ascertain the grounds on which those objections are based, and if those grounds can be settled one way or the other, either on the admission of the parties or on the materials before the Court or with reference to matters that are verifiable from Official records, he should proceed to settle those grounds and give his decisions there and then.
On the other hand, if the substance of the objection requires further consideration, and the material with reference to which that further consideration is to be given, cannot be brought before the Rent Controller without an adjournment, the Court shall give as short an adjournment as is consistent with the object in law." (page 405 of the report).
' In many cases, these weighty observations have been ignored. In order to avoid delays and consequential injustice, it is high time that Rent Controllers pay attention to them.
10. After the above discussion, it is not necessary to formally deal with the remaining arguments of the learned counsel separately. However, it is observed that the appellant had enough opportunity or placing his case before the learned Rent Controller. Not only this, his (now admitted) position was in fact considered at that stage. He had not only opportunity to produce any material by which he wanted to support his so-called plea raised before the Rent Controller, but at the lower appellate stage also he in fact availed of the same and produced many documents. Learned counsel does not deny that the lower appellate Court, on account of the peculiar jurisdiction conferred-thereon, is also a forum of inquiry. Under section 15(3) of the Ordinance,
(1) PLD 1963 Lab. 390 the appellate Court has the power either itself to hold further inquiry or to remand the case for the same purpose to the Rent Controller. Here the appellant availed of that opportunity and produced the material which has not been ignored.
1-A. I do not agree with the legal proposition put forward by the learned counsel that if a husband receives the rent on behalf and for the benefit of his wife, he cannot be treated as landlord unless he has a formal authority from the wife to do so. There is no such requirement mentioned in the Ordinance. Section 2(e) reads as follows :- " 'landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who subjects any building or rented land in the manner hereinafter authorised and every person from time to time deriving title under a landlord."
It is obvious that the expressions "on behalf or for the benefit or' are very wide. 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. In section 2(1) (definition of Itenne) it is provided that a person placed in occupation of a property by its tenant, "unless with the consent in writing of the landlord. ..", would not be included in the definition of "tenant". It is also to be observed that while the extended phrases used in the definition of 'tenant' go up to the limit of including a person by or on whose account rent is payable for a property, in this category the provision in the definition of "landlord" has gone further to include the extending provision, namely, "whether on his own account or on behalf or for the benefit of any other person. . . . .". The case-law shows that this provision has been given wide interpretation and sometimes even servants receiving rent on behalf of landlords and owners have been treated as landlords by virtue of the definition. It is accordingly held that the respondent, by virtue of the definition, has rightly been treated as landlord and the question of relationship of landlord and tenant has correctly been determined.
12. The last argument of the learned counsel, as already pointed out, has no basis. It is a clear afterthought. No affidavit of the wife of the respondent, neither any writing nor any other material showing even by conduct that the wife of the respondent had withdrawn the authority from the respondent to receive the rent on her behalf, has either been produced or relied upon. Learned counsel has depended upon surmises and that too of a hyper technical nature. For example, in the memo. Of address furnished with the eviction application, it has been pointed out by the learned counsel, the respondent omitted the name of his wife, i,e,, the owner of the property. Learned counsel, at the same time, admitted that the respondent has two other wives and that their names have also been omitted. Moreover, it appears that the list in question has been submitted only with a view to show as to who will pursue the matter in case of death of the respondent. It is in this connection that amongst others the name of Sh. Mohammad Jamil who, it is stated, is the son of the appellant, is mentioned to pursue the case in that eventuality.
13. After hearing the learned counsel at length and going through the entire material relied upon by him, I find no force in this appeal and the same is dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.