FAZLE ABBAS Versus MAHMOOD HUSSAIN

1. The facts giving rise to this appeal are that the present appellant had filed the ejectment proceedings on the ground of default in payment of rent since the month of June, 1981 till November, 1981 when the said proceedings were filed. It is the case of the appellant that the respondent was inducted as a tenant in the disputed premises in January 1980 at the rate of Rs.450 per month initially for a period of three months. He was required to pay the Electricity and Sui Gas charges separately. However, the respondent withheld the payment from June, 1981 and therefore, the rent case was filed. The respondent m his written statement had taken plea that the relationship of landlord and tenant between the parties does not exist for the reasons that there was no written agreement as required under Section 5 of the Sind Rented Premises Ordinance, 1979 and also that his occupation being only for three months, there was no intention of parties to create relationship of landlord and tenant. The Rent Controller after hearing the arguments of the parties held that the relationship of landlord and tenant did not exist between the parties and dismissed the rent application.

2. I have heard the learned counsel for the parties and at the very outset Mr. Shafaat Hussain, learned counsel for the respondent candidly conceded that the provisions of Section 5 of the Sind Rented Premises Ordinance are directory m nature and not mandatory and non-compliance therefore, would not nullify the effect of creation of relationship if so created. He, however, argued that since the intention of parties was to allow the respondent to occupy the house only for three months and therefore, the charges which were payable by him would not amount to rent but would be the compensation for use and occupation of the premises and facilities. Repelling the above, contention Mr. Zafar Alam Khan, appearing for the appellant has referred to the definitions of the words "landlord", "rent' and "tenant" as given in section 2(f)(i)(j) which read as under:-- "landlord" means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises;

(g) . . .. . . .. .

(h) . .. . . . . . .

(i) "rent" includes water charges, electricity charges and such other charges which are payable by the tenant but are unpaid;

(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;

3. He has further referred to the affidavit-in-evidence tied Syed respondent Syed Mahmood Hussain in which he has in cross-examination stated I used to pay rent Rs.450 per month. I have paid rent upto December 1981" Mr. Zafar Alam Khan has also referred to paragraph 3 of the same affidavit of the respondent in which he has also admitted the payment of the said amount for the use, and occupation. This fact and admission of the respondent himself show that even to his knowledge the said amounts were the amounts of rent and not the compensation for use and occupation as claimed by him. Even otherwise any amount which is to be paid towards the charges for the use and occupation of certain premises including the charges of Electricity, Sui Gas and Water etc. would amount to nothing but rent. However, in view of the above I am inclined to hold that in the instant case the relationship of landlord and tenant does exist between the parties and remand he case to the Rent Controller to proceed with the same in accordance with law. However, there will be no order as to costs. Let the R & P be sent immediately to the concerned Court who will issue the notice to the parties.

4. M.Y.H./F-108/K

5. Appeal accepted.