PAKISTANI STATE OIL COMPANY LIMITED Versus KHALIQ RAZA KHAN

1. SYED HAIDER ALI PIRZADA, J.‑‑‑This First Rent Appeal is directed against the order dated 2‑8‑1989 passed by the Vth Senior Civil Judge/Rent Controller, Karachi East allowing the eviction application filed by the respondent and directed the appellant to hand over vacant possession of the demised premises to the respondent within two months from the date of the order.

2. The facts leading to the filing of the above appeal are that by lease deed dated 12‑7‑1962 the President of Pakistan leased out a plot of land measuring 1736 square yard or thereabout on Dada Bhoy Noroji Road between Muslimabad and P.E.C.H.S., Karachi to Khaliq Raza Khan for a period of ten years with effect from 12th July 1962. Khaliq Raza Khan was required to pay Rs.6,771 as yearly rent in advance by 12th July each year. Khaliq Raza Khan agreed to erect/instal at his own expense temporary structure suitable for a petrol pump‑cum‑service station in accordance with the design to be approved by the Pakistan Public Works Department. Pursuant to this lease deed, the said Khaliq Raza Khan raised construction.

3. By lease dated 31‑7‑1967 the said Khaliq Raza Khan let out the premises in question to ESSO Standard Eastern, Inc. the predecessor of the present appellants for a period of ten years at the rate of Rs.3,000 per month.

4. In the year 1973 the respondent filed eviction application against the predecessor namely ESSO Standard Eastern, Inc. The eviction application was registered as R.C. No. 133 of 1973. On or about 26‑1‑1976 the parties filed application under Order XXIII, Rule 3 read with section 151, C.P.C. The compromise application was accepted by order dated 29‑1‑1976. The rent case was decreed in terms of the compromise.

5. The respondent filed eviction application on the ground of default. The respondent averred in para. 3 of the application that the opponent/appellant is a persistent and wilful defaulter in the payment of rent to the applicant/respondent. The appellant was in arrears since July 1979 and failed to pay the rent despite the same becoming due.

6. The appellant contested the eviction application by filing written statement. The appellant pleaded in their written statement that in the terms of the compromise in R.C. No.1338 of 1973 the understanding between the parties is that the opponent/appellant will pay rent to the applicant on production of renewed lease of the said plot or on production of rent receipt showing advance payment of rent/occupancy charges to the Estate Officer, Government of Pakistan and on intimation in writing of such payment. The allegation that appellant is a persistent and wilful defaulter in payment of rent is absolutely false. The allegation that the appellant is in arrears of rent since July 1979 is false and denied. The appellant stated in the written statement that the respondent by his letter dated 19‑7‑1979 confirmed that he had paid the same to the Government and forwarded to the appellant a photostat copy of receipt showing payment of rent to the Government and the opponent/appellant immediately processed a cheque for Rs.36,000 being the rent for July 1979 to 30‑6‑1980 and delivered the same to the respondent.

7. During the pendency of the eviction application, the appellant filed application under section 3(1) of the Sindh Rented Premises Ordinance; 1979 stating therein that the eviction application is not maintainable in law. The case of the appellant, as set out in the application, is that under the provisions of section 3 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the `Ordinance'), the Controller has no jurisdiction to entertain the eviction application. The application was dismissed by order dated 29‑11‑1983. Thereafter the appellant filed application under Order VI, Rule 17 read with section 153 and section 151, C.P.C. This application was also dismissed by order dated 25‑7‑1989.

8. The respondent filed his own affidavit‑in‑evidence in support of the eviction application. The appellant filed affidavit‑in‑evidence of their Legal Exative, Muitaza Hussain. They were cross‑examined by the learned counsel appearing for the respective parties.

9. The Controller assessed the evidence adduced by the parties. He came to the conclusion that the appellant committed default in payment of rent for the specified period July 1980 to September 1980. In that view of the matter, he allowed the eviction application as stated in the earlier part of this judgment. The appellant has preferred the present appeal.

10. Mr. Khalid M. Ishaque raised the following contentions:‑‑

(1) The Rent Controller has no jurisdiction to entertain the eviction application as the land in question is owned by the Federal Government.

(2) The appellant has not committed default and the finding of the Controller on this point is contrary to the evidence on record.

11. On the other hand, Mr. Muhammad Zaki Ahmad, learned counsel appearing for the respondent sub1nitted that the Controller has jurisdiction to entertain the application. The appellant has committed default in payment of rent and the findings of the Controller are in accordance with the evidence on record.

12. I have carefully considered the contentions raised by the learned counsel appearing for the ‑parties. I have gone through the R&P of the case with the assistance of the learned counsel appearing for the parties and have gone through the impugned order.

13. It is advantageous to reproduce section 3(1) of the Ordinance which reads as under:‑‑

14. "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."

15. The contention of Mr. Khalid M. Ishaque is that the demised land is owned by the Federal Government and, therefore, the Ordinance does not apply to, the demised land. Mr. Muhammad Zaki Ahmad, however, urges that the objct of the Ordinance, as recited in the preamble, inter alia, to control rent. It follows, therefore, that the object of the legislation was that the provisions of the Ordinance would be applicable only as between the landlord and tenant. His other contention is that the demised land belonged to the Federal Government.

16. Section 3(1) provides for an exemption from or exception to that general object.

17. The purpose of the first part of section 3(1) is to exempt two cases of relationship of landlord and tenant from the operation of the Ordinance, namely, where the Federal Government or Provincial Government let out premises owned by it or where the Government lets out premises requisitioned by it. The conclusion is, therefore, irresistible that the legislature did not intend to exempt the relationship of landlord and tenant but intended to confer on the premises owned by the Government an immunity from the operation of the Ordinance.

18. Mr. Muhammad Zaki Ahmad strenuously contended that the demised land belonged to the Federal Government. In support of his contention, he drew my attention to the lease deed executed by the President and the evidence adduced by the respondent.

19. I have perused the lease deed dated 12‑7‑1962 (Exh.0/2). A perusal thereof would show that there is no mention about owner of the demised land. The respondent to a suggestion replied that "the disputed land belongs to the Government."

20. The word "belonging" has been defined as follows:‑‑

21. "According to Chamber's 20th Century Dictionary word "belong" means to pertain (to); to be the property (of); to be part or appendage (of).

22. In Stroud's Dictionary, Fourth Edition meaning of the word "belonging" has been given as under:‑

23. "Belonging‑‑property belonging to a person has two general meaning (1) ownership, (2) the absolute right of user.

24. Lord Masnaghten in Heritable Reversionary Company v. Muller, L.R. (1892) AC 598 at page 621 observed:‑

25. "The words `property' and `belonging to' are not technical words in the law of Scotland. They are to be understood, I think, in their ordinary signification. They are in fact convertible terms; you can hardly explain the one except by using the other. A man's property is that which is own, that which belongs to him, what belongs to him is his property."

26. In Province of Sindh through Secretary, Education Sindh Secretariat, Karachi and 2 others v. Nisar Ahmad (1983 CLC 1905), Mr. Ajmal Mian, J. (now a Judge of the Supreme Court) considered the meaning of word `of and observed:

27. "From the above‑quoted definition of the word 'of' given in the above dictionaries, it is evident that the word 'of` has wider connotation as compared to the word `belonging' and it includes anything `associated with or connected with' and also includes `belonging to or in possession of. The use of the two different words in the same notification, namely, `belonging' and 'of' clearly indicates that they were intended to convey two different meanings. I am, therefore, inclined to hold that in the above notification the word `of' means associated or connected with or in occupation of the schools and colleges. It must, therefore, follow that the above notification includes the premises in occupation of the schools and colleges though on rental basis:'

28. In the case of Messrs Azmatullah Ltd. v. Messrs S.N.K. Trading Co. Ltd and 3 others (1989 CLC 877) a Division Bench comprising of Saleem Akhtar and Imam Ali G. Kazi, JJ. considered the meaning of word "belonging" occurring in Notification No. VIII(3)SOJ/75 issued in pursuance of the provisions of section 3(2) of the Ordinance. The Bench held:

29. "Where the word `belonging' has been used as a verb with reference to property, it means ownership. When any property belongs to a person, he exercises his right of ownership over it or exclusive right of user. A property will belong to a person if it is vested in him which means legally secured by him."

30. It was further observed:

31. "Considering the meaning of the word "belonging" the notification under consideration is applicable to properties which are owned by K.P.T. or vest in it."

32. In Mrs. B.S. Khan v. Pakistan State Oil Company Ltd (1989 SCMR 75) the Supreme Court considered Sindh Government Notification No. VIII(3) SOL 75 dated 15‑3‑1981 issued in pursuance of the provisions of section 3(2) of the Ordinance. The appellant was lessee of land of Karachi Port Trust. The, respondents were in occupation of land of Karachi Port Trust let out to them by lessee (Mrs. B.S: Khan) whose rights were to the extent of recovery of rent. The Supreme Court held as follows:‑

33. "The owner of the land is K.P.T. but Mrs. B.S. Khan who is lessee, rented out the premises belonging to K.P.T. to State Oil and his rights are to the extent to recover the rent as such provisions of Sindh Rented Premises Ordinance which include section 2(f) are exempted, therefore, lessee is not competent to file rent case against sub -lessee:"

34. The appeal filed by lessee Mrs. B.S. Khan was dismissed.

35. The principles laid down in the above decision are applicable to the facts of the instant case.

36. The premises or demised land belonged to the Federal Government. It means owned by the Federal Government. The respondent is lessee of the demised land whose rights are to the extent of recovery of rent. In my opinion, the respondent could not invoke jurisdiction in respect of the demised land of the Federal Government. The respondent was not competent to rile eviction application against the appellant.

37. In the light of the above discussion, it is not necessary to consider the ground of default as any observation made by me would prejudice either of the parties.

38. The result, therefore, is that I allow this appeal, set aside the order of eviction of the Controller and dismiss the eviction application. In the circumstances of the case, the parties are directed to bear their own costs.

39. H.B.T./P‑299/K Appeal allowed,