SHAUKAT ALI Versus NOOR BIBI

1. The opponent is, in this appeal, challenging the eviction order dated 12‑4‑1986 passed by IVth Senior Civil Judge/Rent Controller, Karachi West in an eviction application No.4827 of 1982 (New No.470/1985) in respect of an open plot of land bearing No.Z‑330‑A (Old No.G‑14/A), situated at Pak Colony, Mangopir Road, Karachi. The applicant /respondent filed the eviction application on the ground of default in payment of rent from 15‑10‑1977 till the date of the filing of the eviction application. The appellant filed written statement and resisted the eviction application. He pleaded that there is no relationship of landlord and tenant between the parties and as such the eviction application was not maintainable.

2. The Controller held that there exists relationship of landlady and tenant between the parties. He further held that the appellant had committed default in payment of rent with effect from 15‑10‑1977. He accordingly allowed the eviction application without holding inquiry into the question of default. He therefore, filed this First Rent Appeal.

3. Mr. R.H. Farooqi, the learned counsel for the appellant has contended that while denying the tenancy, the default is controverted. In support of his submission, he invited my attention to the cases reported in P L D 1976 Kar. 921, P L D 1979 Kar. 59, P L D 1974 Lah. 446, P L D 1982 Kar. 25, 1982 C L C 379, 1978 S C M R 14, PLD 1982 Lah. 332.

4. On the other hand Mr. M.A. Kazi, the learned counsel for the respondent has submitted that the contention raised by the appellant that there was no relationship of landlady and tenant between the parties because KMC is the lessor and he is the lessee was false and contumacious and, therefore, the Controller was not obliged to hold inquiry into the question of default after he had found that the appellant was occupying the premises, in dispute as a tenant, under the respondent. In support of his submission he invited my attention to the cases reported in P L D 1961 Lah. 601, P L D 1976 Lah. 1078 and 1980 C L C 1141.

5. It is an admitted position that plot of land No. C‑14/ A measuring 1,000 square yards was let out to the appellant vide agreement dated 2‑9‑1970. It is also an admitted position that the respondent filed eviction application No.349/1974 against the appellant on the grounds of default, subletting and nuisance. The appellant filed written statement and admitted therein that he was tenant in respect of the premises in dispute. The said eviction application was dismissed for non‑prosecution on 4‑9‑1977. It is also an admitted position that the respondent filed another eviction application bearing No.2445 of 1979 which was also dismissed for non‑prosecution on 23‑11‑1982. The respondent finally filed an eviction application which is the subject matter of this appeal.

6. The case as set out by the appellant in his written statement is that he moved an application dated 26‑10‑1977 before the Administrator, KMC for regularization of unauthorised possession. The incharge Golimar Lease Cell KMC sent a reply dated 13‑12‑1977 stating therein that "the lay‑out plan of the area is being finalized by K.M.C., for the purpose of regularization of unauthorised possession and your case, alongwith others, will be considered under Rule 13(5) of the Sind People's Local Council (Land) Rules, 1975, no sooner is the layout plan finalized. You are, in the meantime advised in your own interest not to pay any rent etc, to any irrelevant person as rent of K.M.C., Land can only be recovered by K.M.C., and not by individual". It is also an admitted position that KMC directed the appellant to deposit Rs.1.288,52. The appellant complied with this direction. The Assistant Director (E) Land, KMC wrote a letter dated 4‑6‑1974 which reads as follows:‑

7. "A sum of Rs.405.53 credited to KMC account against instalment of development charges of Plot No. Z‑330‑A, Pak‑Colony Mangopir Road may please be got refunded on submission of written request. Since the land was not transferred to K.M.C., it was premature to accept the amount.

8. In case no reply is received from your side within 7 days from receipt hereof, no claim of whatsoever will be entertained.

9. This has the concurrence of the Mayor, City of Karachi."

10. The respondent moved an application for regularization of the plot in her possession and the KMC directed her to produce the title documents in respect of the said plot of land.

11. The case of denial of tenancy can be divided into two categories. One category will be of the cases in which no inquiry is required to be held for rejecting the plea of denial of tenancy. In the other category will fall those cases in which it becomes necessary to hold such an inquiry. In the first category, inquiry into the question of default can be held even after the tenant's plea has been repelled no inquiry into the question of default would be called for and the) tenant would not be allowed to prove payment after he is proved to be a tenant.

12. The question which I am called upon to answer is whether the opponent can be evicted from the premises in dispute under the Scheme of the Ordinance on the ground that he denied the applicant's title. Clause (g) of section 111 of Transfer of Property Act provides that a lease of immovable property determines in case the lessee renounces his character as such by setting up a title in third person or by claiming title in himself. However no resort can be had to that clause proprio vigore because the Sind Rented Premises Ordinance, 1979 (hereafter referred to as the Ordinance) which protects the tenants superimposes itself upon the provisions of the Transfer of Property Act and unless the applicant's case for eviction of the opponent falls within the four walls of the Ordinance, he cannot b? evicted. Section 13 provides as follows:‑---

13. "13. Eviction. No tenant shall be evicted from the premises in his possession except in accordance with the provisions of the Ordinance."

14. Section 15(2) provides as follows:‑

15. The Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that .......

16. A perusal of section 15(2) shows that denial of the applicant's title by the opponent is no ground for evicting the opponent from the premises in dispute. Reading sections 13 and 15(2) together, it is clear that the eviction of a tenant from the premises occupied by him is barred by section 13 as long as the tenant pays the rent and performs the other conditions of the tenancy in so far as they are consistent with the provisions of the Ordinance. It is clear, therefore, that as long as a tenant pays rent and performs the other conditions of the tenancy, he cannot be evicted from the premises in dispute irrespective of what Transfer of Property Act provides. Section 13 which I have reproduced above carves out an exception to subsection (2) of section 15. Therefore, in the instant case, if the provisions of section 15(2) are violated the opponent can be evicted from the premises in his possession. He can be evicted if he is guilty of any of the things specified in clauses (ii) to (vii) of subsection (2) of section 15. The question which Mr. Kazi has argued before me is that the opponent is not entitled to the protection of section 13 because by denying the title to the premises in dispute and setting it up in third person (K.M.C.) he has not observed and performed the conditions of the tenancy. He has argued that acceptance of the relationship of landlady and tenant between the parties is the first and Fundamental condition of tenancy, between the parties. I am impressed by the argument which he has raised before me. It is that very relationship between the parties which qualifies a tenant for protection under the Ordinance. Any right which a tenant may claim flow from his basic acceptance of the relationship of landlady and tenant between the parties. Acceptance of this relationship is most implicit between a landlady and tenant even though the rent‑note or lease may not be providing that in case a tenant disclaims or denies his landlady's title, he shall be liable to be evicted. Such a condition, written or unwritten can never be inconsistent with any of the provisions of this Ordinance because it is his acceptance of this relationship which brings the provisions of the Ordinance into picture and, as stated above, qualifies him for protection under that Ordinance to the exclusion of the provision of section 111 of Transfer of Property Act under which he would be liable to be evicted on account of such a reason. This condition, whether express or implied is protected by section 116 of the repealed Evidence. Act (Article 115 of Qanun‑e- Shahadat, 1984) which estops a lessee from denying his lessor's title. Therefore, it is not a mere contractual term or a condition which is protected by the Statute. I am, therefore, of the view that the acceptance of this relationship is quite consistent with the provisions of the Ordinance and it is accepted by every tenant in order to qualify for the protection of the Ordinance. As soon as a tenant, denies the title of his landlady/ landlord who demised the premises to him and with whom he has a privity of contract and sets it in some one else it must be unhesitatingly said that he has not observed and performed the most basic and fundamental condition of the tenancy. If there is a denial of title and if it is no ground for eviction under the Ordinance then the veil of protection which the Ordinance throws round the tenant will help him to over‑reach his landlord /landlady. It would mean that it is open to a tenant to go on denying his landlady's title with impunity and to continue in possession of the demised premises until his landlady establishes her title. That, in my opinion, is not the scheme of the Ordinance. Any protection that he can claim under the Ordinance flows from the basic fact that he accepts the relationship of landlady and tenant between the parties. The moment, he disputes that relationship he must be held to have committed breach of the most essential condition of tenancy which qualifies him for protection under section 13. Therefore, in my opinion, he was not willing to observe and perform the very first condition of the agreement of tenancy and, therefore, he was not entitled to the protection under the Ordinance. In that view of the matter he is liable to be evicted and the eviction order passed by the Controller is quite justified. I, therefore, see no reason to interfere with the impugned order. .

17. In view of the above it is not necessary to refer to the decisions cited by the learned counsel for the parties.

18. The appeal, therefore, fails and is dismissed. The appellant is, however, granted four months time to vacate the premises and deliver vacant possession of the demised premises to the landlady. There will however, be no order as to costs.

19. H. B. T./S‑107/K Appeal dismissed.