KHALILUR REHMAN Versus MUHAMMAD YASIN
1. In this appeal order, dated 6‑1‑1983, passed by the First Senior Civil Judge & Rent Controller, Mirpur Khas in Execution No.12/1982 has been assailed.
2. Briefly the background of the case is that respondents Nos. 2 to 6 filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against respondent No.1 and the appellant for their eviction from the shop situated in the building constructed on city Survey Nos.412 and 416, Station Road, Mirpurkhas. It was inter alia alleged that respondent No.1 had sublet the said shop to the appellant without consent of the landlord. In the said case written statement was filed only by the appellant. Respondent No.1 did not come to contest the proceeding and the case proceeded ex parte against him. The learned Rent Controller held that respondent No.1 had sublet the premises, to the appellant. It was also held that respondent No.1 had committed default in payment of rent. The above order was assailed in appeal before the District Judge, Tharparkar which was dismissed by judgment dated 13‑12‑1981.
3. Respondents Nos. 2 to 6 filed execution application, notice whereof was issued to the appellant and respondent No.1 but they remained absent and consequently writ of possession was issued. At the said stage the appellant appeared before the Rent Controller and challenged the maintainability of the execution application on the ground that respondents Nos.2 to 6 had termed the appellant as unauthorised occupant of the premises in question and as such the learned Rent Controller had no jurisdiction to adjudicate upon the dispute. The aforesaid contention was repelled by the Execution Court and writ of possession was ordered to be issued.
4. The learned counsel for the appellant has raised the same contention before this Court and has urged that the appellant admittedly is not a tenant of respondents Nos.2 to 6 and, therefore, the learned Controller had no jurisdiction to order his eviction under the provisions of the repealed Ordinance. He further submitted that the Execution Court has jurisdiction not to give effect to the order of eviction which has been passed in exercise of jurisdiction not vested in the Rent Controller. He has relied on:‑‑‑
(1) Manek J. Mobed an d others v. Shah Behram and others (PLD 1974SC 351);
(2) Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 SC 192);
(3) M/s: Bambino Ltd. v. M/s. Selmor International Ltd. and others (PLD 1983 SC 155);
(4) Muhammad Aslam Siddiqui v. Mst. Hasina Begum (1986 MLD 735);
(5) Muhammad Saeed v. Yaseen and others (PLD 1966 Kar. 308);
(6) Muhammad Lal v. Abdul Qudoos (PLD 1975 Quetta 29) and
(7) Baqar Hussain v. Mst. Jamila Begum (1986 MLD 1273).
5. In the case of Manek J. Mobed and another, it was held that the provisions of Karachi Rent Restriction Act, 1953 were not a bar to the competence of the suit as the defendant had failed to perform one of the conditions of the tenancy, namely, not to sublet without the permission and consent of the landlord in writing. The said authority does not lay down that the unauthorised sub‑tenant cannot be evicted under the order passed by they Rent Controller. This Authority, therefore, does not advance the case of the appellant.
6. Cases at serial Nos.2 to 6 relate to power of the Execution Court an it is not necessary to dilate on the said aspect as I am of the view that the order of eviction can be executed against the sub‑tenant inducted with or without the permission of the landlord and the order passed by the learned Rent Controller against the appellant and respondent No.1 on the ground of subletting cannot be termed to be without jurisdiction.
7. The facts of the last citation have no relevance whatsoever to the present case. In the said case, the allotment of the demised property in favour `' of the landlady was cancelled and the same was allotted to the tenant, after passing of the eviction order and the Court refused to execute the order against such tenant.
8. The learned Advocate for the appellant could not cite any authority in support of his contention that the Rent Controller has no jurisdiction to order eviction of the unauthorised sub‑tenant or to pass any order in execution proceedings against such sub‑tenant.
9. Acceptance of the above contention raised on behalf of the appellant would render the provisions of para (a), clause (ii) of subsection (2) of section 13 of the repealed Ordinance and para (a) of clause (iii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance (XVII of 1979) redundant and ineffective.
10. No doubt, the Rent Controller can assume jurisdiction only when there exists relationship of landlord and tenant between the parties or may enter into an enquiry to determine whether such relationship exists to warrant proceedings under the aforesaid rent laws. The provisions of the aforesaid laws referred to in the immediately preceding para, provide that the Controller may make an order directing the tenant to put the landlord in possession of the building if he is satisfied that the tenant has without written consent of the landlord transferred his rights under the lease or sublet entire building or any portion thereof or as is provided in Ordinance (XVII of 1979, has handed over the possession of the premises to some other person.
11. Under the said law direction is to be given to the tenant to put the landlord in possession of the demised premises irrespective of the fact that the tenant is not in possession of the premises and is, therefore, not in a position to comply with such direction. Under the scheme of the law, the writ of Court issued against the tenant is also binding on all such persons who are in possession of the demised premises, for or on behalf of or through the tenant.
12. In case of failure of the tenant, in handing over the possession of the demised premises, the Controller has power to issue writ of possession for execution of the eviction order passed against the tenant and such order can be executed against any person who is found in possession for or on behalf of or has come in possession through tenant.
13. It is one of the principles of interpretation of law that it is to be interpreted and understood, not only with reference to its letter but also in its spirit. The law cannot be allowed to be stifled or twisted to defeat the very purpose, for which it is made.
14. The provisions of the Code of Civil Procedure are not applicable to the proceedings under the Ordinance, but, as it has been repeatedly held the principles underlying the Code can be applied to advance the cause of justice.
15. Order XXI, Rule 35 read with Rule 95 clearly establish that in execution of decree for possession, any person claiming possession through judgment‑debtor, is bound by the decree and is liable to be evicted.
16. The said principle will be applicable with its full force for eviction of unauthorised tenant as well.
17. Above are the reasons for the short order, dated 7‑7‑92, whereby the appeal was dismissed and with the consent of the learned counsel for respondents Nos.2 to 6, the appellant was given two months' time, from the said date, to hand over the vacant possession of the premises to respondents Nos.2 to 6 and in case of his failure the Rent Controller shall issue writ of possession without any further notice in the execution proceedings pending before him.
18. H.B.T./K‑300/K Appeal dismissed.