PLJ 2003 

Karachi 134
Present: MUHAMMAD MUJEEBULLAH SIDDIQUI, J.
HAFEEZUDDIN and 2 others-Petitioners
versus
BADARUDDIN and 2 others-Respondents C.P. No. 898 of 2002, decided on
2.4.2003.
(i) Constitution of Pakistan (1973)--
—Art. 189~Every principle of law decided and pronounced by Supreme Court is binding
on all Courts in Pakistan, including High Courts, even obiter dicta of Supreme Court has
binding effect.       [P. 149] B 

(ii) Interpretation of Statutes-

—Whenever a definition starts with word "means" it is conclusive and normally nothing is
to be added to such conclusive definition—When, however, such clause starts with word
"includes" then same is not conclusive but is inclusive and other matters of same category
or similar nature can be included in definition.   [P. 150] E & F 

(iii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 2(f) & (j)-Mere ownership of property was not sufficient to establish relationship of
landlord and tenant.        [Pp. 146 & 150] A & I

(iv) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 2(f)-A person can be owner of building or land without being landlord and can be
landlord without being owner
thereof.                                                                                                  [P. 151] N

(v) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 2(j)-Word "bound" used in S. 2(j) of Sindh Rented Premises Ordinance, 1979
containing definition of "tenant" could not be considered in isolation and defined with
reference to meaning of said word in dictionary.         [P. 149] C

(vi) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—S. 2(j)-Under Section 2(j) of Sindh Rented Premises Ordinance, 1979 term "tenant" has
been defined to mean, any person who undertakes or is bound to pay rent, as consideration
for possession or occupation of any premises by him or by any other person on his behalf-
The definition of "tenant" contained in Section 2(j) of Ordinance starts with word
"means" and it is established principle of interpretation of statute that whenever a definition
starts with word "means", it is conclusive and normally nothing is to be added to such
conclusive definition.        [Pp. 149 & 150] D & E
(vii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
—-S. 4--Rent Controller has no jurisdiction to decide case pertaining to ownership/title of
property and jurisdiction is exclusively vested
in Civil Court.                                                   [P. 151] 0
(viii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
—-S. 5-Provisions contained in S. 5, Sindh Rented Premises Ordinance, 1979 are directory
and not mandatory in nature.    [P. 151] J

(ix) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—-S. 5-Verbal/oral tenancy agreement can be made but in order to establish such
tenancy an evidence of very high standard is required, from which facts of tenancy is
established on principle of preponderance of probabilities.        [P. 151] K 
(x) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
—S. 5-No concept of deemed tenancy exists either on consideration of morality or under
any fiction of law.          [P. 151] L

(xi) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--

—-Ss. 13 & 15-Specific Relief Act (I of 1877), S. 12-Agreement to sell per se does not confer
any title in property and merely confers right to enforce
specific performance of agreement.                                              [P. 150] H
(xii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
—-Ss. 13, 15, 2(j) & 2(f)-Constitution of Pakistan (1973), Art. 199--Constitutional petition-
Ejectment application on ground of bona fide personal need of landlord and default in
payment of rent by tenant-No evidence existed to establish verbal/oral tenancy between
parties-Contention of owners of property, that they were landlords of occupiers of property
merely on basis of ownership of property in question and occupier was tenant by mere
possession thereof was repelled as relationship of landlord and tenant between parties
was not established in circumstances.   [P. 151] P
(xiii)  Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
—Ss. 2(j), 2(f), 2(h) & 15-In definition of term "tenant", contained in Section 2(j)
of Sindh Rented Premises Ordinance 1979 and definition of "landlord" contained under
Section 2(f) of Ordinance, word "premises" has been used likewise under Section 15 of
Ordinance, word "premises" has been used-Word "premises has been defined by
Legislature itself in Section 2(h) as a "building or land, let out on rent but does not
include hotel"--Thus while interpreting definitions of landlord and tenant, contained in
clauses (f) and (j) of Section 2 of Ordinance, definition of word "premises" is also required
to be kept in view and according to definition in Section 2(h) of Ordinance its means
building or land let out on rent-This is exclusive definition of premises which totally
excludes any transaction other than letting out on rent and thus it would be
against manifest intention of Legislature to hold that mere ownership of property by one
person and possession thereof by other, irrespective of fact whether it was let out on rent or
not would create relationship of landlord and tenant because of moral obligation-
Sindh Rented Premises Ordinance, 1979 is not only law in Province of Sindh providing
relief to an owner of a building, in case relationship of landlord and tenant is not established
within scheme of Ordinance and owner of building or land
can have recourse to other laws for the time being in force and can invoke jurisdiction of
Civil court for taking possession of a building or land as well as
compensation/mesne j^ro/zYs-Provisions of statute are not to be interpreted only on
touchstone of morality or moral obligation but on basis of law enacted by Legislature.    [P.
150] G 
(xiv) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
—Ss. 5, 13 & 15—If statutory or contractual tenancy is not established, creating
relationship of landlord and tenant between owner and occupier of property, Rent Controller
has no jurisdiction and parties may have recourse to Civil Court for resolving
dispute/seeking relief. [P. 151] M
Mr. AM. Mobeen Khan, Advocate for Petitioners. Mr.
Abdul Naeem, Advocate for Respondent No. 1. Date of hearing :
25.3.2003.
JUDGMENT
Briefly stated the facts giving rise to this petition are that the  petitioners filed
a Rent Application against Respondent No. 1 under Section 15 of the Sindh Rented Premises
Ordinance, 1979, seeking his ejectment from the shop on ground floor of the building
situated on plot C.S. No. B-1855, Bagh-e-Hayat Ali Shah, Sukkur, on the ground of
committing default in payment of rent and for bona fide personal requirement.
It was stated in the said application, that Applicant No. 1 Hafizuddin let out the shop
on rent to his real uncle, Respondent No. 1, at the monthly rent of the Rs. 2,000, in the year
1995. No agreement of rent was executed and the tenancy was verbally agreed. It was
further averred that the respondent being real uncle of the applicants did not pay any rent
of the demised premises, after taking possession thereof, in spite repeated requests. In the
month of January 2000, a notice was served on the Respondent No. 1 through their advocate
for the payment of arrears of rent from January, 1995, (the month of the alleged
induction of the Respondent No. 1 as tenant), till December, 1999. The Respondent No. 1
still failed to pay rent and consequently ejectment application was filed.
The Respondent No. 1, in his written statement stated that the entire building is
owned by the applicants alcmgwith other co-owners, namely, Islahuddin,
Ali Taj, Umairuddin and Zubairuddinbrothers of the applicants. He admitted his possession
over the demised premises but as owner, by virtue of verbal agreement. It was contended
that the Applicant No. 1 and his brothers through their father Tajuddin verbally agreed
in presence of opponent/respondent No. 1's mother to sell the shop to
the opponent/respondent No. 1 at the sale consideration of Rs. 2,50,000 and the entire sale
consideration was paid to the applicants and their brothers, in two instalments of Rs.
1,50,000 and Rs. 1,00,000. The applicants and their brothers promised to execute registered
sale-deed. It was alleged that the transaction was between real paternal uncle and nephews,
therefore, no written sale agreement was executed. The opponent/respondent No.
1 specifically denied his status of tenant of the demised premises and stated that there was
no relationship of landlord and tenant between the parties. It was contended that since the
opponent/Respondent No. 1 was not a tenant, therefore, the question of payment of any rent
or default in payment of rent does not arise.
Learned Rent Controller settled the following issues :--
(1)              Whether  there   exists   relationship   of landlord   and  tenant between the
parties ?
(2)              Whether the opponent has committed wilful default in payment of rent ?

(3)              Whether the  applicants  require the demised shop for

the personal bona fide use in good faith ?
(4)              What should the order be ?
 The parties led their respective evidence and the learned Rent Controller decided
Issue No. 1 in negative. After holding that no relationship of landlord and tenant existed
between the parties, the learned Rent Controller rejected the ejectment application.
The applicants preferred appeal before the learned District Judge, Sukkur, which
was also dismissed vide impugned judgment dated 13.9.2002.
Learned District Judge observed that it is an admitted fact that no Rent Agreement
has been executed between the parties and the appellants/applicants have not produced any
proof of Rent Agreement or demand of any rent from January 1995 up to 21.1.2000, when
notice demanding rent was served for the first time. Learned District Judge observed that
there is "word" against "word" on the point of relationship of landlord and tenant and the
burden to prove the relationship of landlord and tenant is on the landlords, who have failed
to discharge burden, therefore, the learned Rent Controller has rightly held that the
relationship of landlord and tenant does not exist between the parties. Learned District Judge
placed reliance on the ratio of Judgement in the case ofAfzal All v. Azhar All 1997 MLD
2262, wherein it was held that if there was no written tenancy agreement executed
between the parties and no evidence was available on record to support that the person in
occupation of the premises ever paid any amount by way of rent to the owner as
consideration of his occupation and no receipt of rent was ever issued to the person in
occupation of the premises, the relationship of landlord and tenant was not established.
Being aggrieved and dis-satisfied, the petitioners filed this' petition under Article 199
of the Constitution of Islamic Republic of Pakistan, 1973, as no second appeal is provided in
law.
Heard Mr. A. M. Mobeen Khan, learned counsel for the petitioner and Mr.
Abdul Naeem, learned counsel for the Respondent No. 1, who is present on pre-admission
notice, issued by this Court. With the consent of the learned advocates, the entire petition is
heard at the Katcha peshi stage and is disposed by this Judgment.
The main contentions raised by the learned counsel for the  petitioners are that
the learned District Judge, Sukkur, has failed to exercise the jurisdiction in accordance with
law, mis-interpreted the expression "Landlord" and "Tenant" used in Sindh Rented
Premises Ordinance, 1979  hereinafter referred to as "Ordinance") and has not followed
the law enunciated hy the superior Courts and, therefore, the petition is  maintainable
and impugrfed judgment of the learned District Judge, Sukkur, is liable to be set aside and
the petitioners are entitled to the grant of their ejectment application.
Initially, Mr. A.M. Mobeen Khan argument that admittedly, there is no written
agreement between the parties but there is evidence on record to establish verbal tenancy
agreement between the parties, which evidence has been ignored by the learned Rent
Controller as well as learned District Judge. However, when called upon to show the
evidence of any witness in support of the factum of the verbal tenancy agreement, he was
not able to show any such evidence from the affidavits-in-evidence filed by
applicant Hafeezuddin, the father of the applicants, Tajuddin and P.W. Muhammad Ilyas.
All of them have merely stated that there is no written tenancy agreement between the
parties and that the opponent is tenant in the premises. No witness has stated, as to when
and in presence of whom, the verbal tenancy agreement was executed. There is no evidence
that opponent ever admitted to be tenant in the premises or paid any rent or undertook
to pay any rent to the petitioners for occupation of the demised premises.
Mr. A.M. Mobeen Khan, thereafter submitted that notwithstanding the absence of
written or verbal agreement of tenancy between the parties, the relationship of landlord and
tenant shall be deemed to be in existence by fiction of law, by virtue of admitted ownership
of the demised premises by the petitioners. He contended that although, the opponent has
failed to establish the alleged verbal sale agreement and the payment of
sale consideration, but even if any sale agreement is taken for granted, for the sake of
arguments, it will not confer any title on the opponent, as title of immovable property over
the value of Rs. 100 can be transferred by registered sale-deed only and not through a sale
agreement. It is further contended that learned District Judge ought to have decided the
issue pertaining to the ownership of the applicants in respect of thu demised premises, and
the absence of finding on this issue, amcnnts to an illegality and non-exercise of jurisdiction
vested in the learned District Judge.
In support of his contention, the learned counsel has placed reliance on the large
number of rulings.
First judgment is in the case of Mst. Hajiani Ayesha Bai v. Zahid Hussain, 2001
SCMR 1301. In this case, the Hon'ble Supreme Court has held that non-mutation of the
property in favour of the landlady cannot be considered a ground to deny relief to her, in
view of the admitted fact that the respondent admits the appellant to be his landlady,
therefore, notwithstanding, the fact whether the property is mutated in her favour or not
but the respondent cannot challenge her right to file the eviction application on this
ground.

The second judgment is in the case

of Muhammad Younus v. Irfanullah Khan 2002 CLC 256( Kar.), wherein the contention,
that, written tenancy agreement was necessary for constituting relationship of landlord and
tenant was repelled. In the cited case reliance was placed on the case
of Habib Hamid v. Liaquat All PLD 1985 Kar. 741, in order to show that in the absence of
an agreement of tenancy being in writing, an oral agreement would have no legal force and
would not be permitted to be used as basis for any litigation in respect of any matter
including the ejectment of tenant, and a Rent Controller has no jurisdiction to
entertain ejectment application, which could be dismissed for want of written agreement.
My learned brother Ali Aslam Jaferi, J. did not agree with the proposition of law
propounded by learned Single Judge of this Court in the case of Habib Hamid (supra) and
observed that the proposition of law was not based on correct and proper appreciation and
interpretation of Section 5(2) of the Ordinance. It was held that enactment of this
section of Ordinance appears to provide a manner and method and course has been taken
to avoid any doubt or ambiguity in execution of the tenancy  agreement, but it does not
mean that oral tenancy is prohibited in the said Ordinance, reliance in this regard was
placed on an earlier judgment of Single Bench in the case ofFatima v. Hanifa 1986 CLC
1613.
The third judgment is in the case of Saifullah v. Ch. Ghulam Ghous 2000 CLC
1841 (Kar.). In this case, a plea was taken by the person in possession of the premises that
he never took the premises on rent from the applicant or from any other person and
consequently, there was no relationship of landlord and tenant between the parties. The
applicant established that he was co-owner of the property and thereafter took plea that
according to definition of landlord and tenant appearing in Section 2(f)(j) of the Ordinance,
a person in possession of premises owned by another is bound to pay rent and consequently
person in possession of premises . become as tenant. Reliance was placed in this behalf of
the following judgments :
(1)             Ibrarul Haq v. S. Asma Mumtaz (Sic);
(2)             Mst. Bibi Husan Bano v. Fazal PLD 2000 Kar. 119;
(3)             Nasim Bibi v. Nabi Bux 2000 MLD 179;
 (4)             Shafiruddin v. Sirajuddin 1999 MLD 2137;
Learned Single Judge of this Court accepted the contentions with the following
findings :

"In this respect it would be seen that the definition of the word "tenant" as
appearing in Section 2(j) of Sindh Rented Premises Ordinance, 1979 is very
comprehensive and reads as under :
"(j) "tenant" means any person who undertakes or is bound to pay rent as
consideration of 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 of 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, and
Similarly the word landlord in Section 2(J) has been defined to mean 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. From a combined reading of the above two definitions it
is quite clear that where no rent agreement exists between the parties the law assumes that
when a person who is not the owner of the premises occupies any portion thereof and has
set up no title which is adverse to the owner of the premises, then such a person by fiction of
law becomes a tenant of the premises. In the present case Mst.Munawar Sultana has
successfully established that she is the owner of the premises alongwith other co-sharers by
producing extract from the property Register which position was never controverted in cross-
examination. So also Ghulam Ghous has never claimed to be the owner of the premises or
to have purchased the same from either the original owner or the subsequent
transferees. Consequently in my view it is quite clear that Ghulam Ghous occupied the
premises in no capacity other than as a tenant of Altaf Ahmed and subsequently
of Mst Munawar Sultana and other co-sharers. A person who is in possession or occupation
of the premises owned by someone else, although he may not have undertaken to pay the
rent to the owner is bound to pay the rent to him as consideration for being in possession
or occupation of the premises. To hold otherwise in my view would be to give legal cover to
such persons, who occupy the premises which are admittedly not owned by them and
thereafter refuse to pay the rent on the ground that they are not tenants of the owners of
such premises. This cannot be allowed by any provision of law. In this regard a reference
can be made to Muhammad Shabbir v. Hamida Begum 1992 MLD 323 and Syed Hussain Ali
Shah v. Shamsuddin 1998 MLD 394 where, in similar circumstances two learned Single
Judges of this Court had come to the conclusion that the relationship of landlord and
tenant stood established between the parties. The cases cited at the Bar by the learned
counsel for respondent as regards the relationship of landlord and tenant, in my view are not
germane to the issue. In this regard in Khuda Bux v. Muhammad Yasin 1992 MLD 2011 it
was held by a learned Single Judge of this Court that mere acquisition of ownership or a
right in the property would not create the relationship of landlord and tenant between
the parties. These are not the facts of the present case since it has been established
by Munawar Sultana through evidence that GhulamGhous was inducted into the
premises by the previous owner Altaf Ahmed. Similarly, in Noor Muhammad
v. Mst. Hajira 1985 CLC 2085, a learned Single Judge of this Court held that where the title
of the premises was in doubt, the relationship of landlord and tenant could not be established
and in these circumstances the proper course for the Rent Controller in such a situation
would be to decide this issue against the landlord and advise him to first get his title
established before seeking ejectment. Similar conclusion was reached in Abdul Rasheed Khan
v. Muhammad Shaukat Hussain 1995 CLC 1978. However, as held above the title to the
properly in question has been successfully established by Mst. Munawar Sultana and hence
these two cases do not help the respondent at all".

The fourth judgment is in the case

of Muhammad Younis v. Syed Muhammad Yakoob 1998 CLC 736 (Kar). In this case, learned
Single Judge of this Court placed reliance on the earlier judgment of a learned
Single Judge in the case of Muhammad Shabbir and another v. Hamida Begum 1992
MLD 323, which reads as follows :--

"The appellant has admitted that he received the notice but he did not reply the
same. Admittedly, the appellant is in possession of the premises. He is also in
occupation of the premises. He does have any title to possess those premises or
occupy those premises but since he was bound to pay the rent for
possession/occupation of the premises, therefore, he was tenant. The word bound
has been defined in the Black's law Dictionary and means as follows :

"As an adjective, denotes the condition of being constrained by the obligations of a

bond, contract, covenant, or other moral or legal obligation."

The appellant was under moral obligation to compensate the owner of the use of
premises and for continuing to remain in possession of the premises. In spite of the
notice that the respondent is owner and had demanded rent, the appellant was
unmoved and did not discharge his obligation. Although strictly there may not be
the legal obligation but moral obligation binds a person to compensate the owner for
continuing to remain in occupation as well as in possession. I would therefore,
held that since the appellant was bound to pay the rent, therefore, he was tenant in
terms of Section 2(j) of the Sindh Rented Premises Ordinance, 1979."
It is pertinent to note that in this case the premises was transferred to the owner by
the Settlement Department.
The fifth judgment is in the case
of Muhammad Shabbir v. Mst. Hamida Begum, 1992 MLD 323, on which reliance has been
placed in the case of Muhammad Younus (supra). In'this case also the issue pertaining
to relationship of Landlord and tenant was under consideration. In this case, the applicant
had established her title over the property in question and the opponent had claimed the
execution of sale agreement and payment of part sale consideration. It was held that till such
time as the opponent succeeds in obtaining decree for specific performance of agreement, the
applicant shall continue to be the owner of the property in dispute. The learned
Single Judge interpreted the term "tenant" defined in Section 2(j) of the Ordinance as follows
:
"Term 'tenant' has been defined under Section 2(j) of the Sindh Rented Premises
Ordinance, 1979 as under :
(j) "tenant" means any person who undertakes or is bound to pay rent as
consideration of 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.
(i) Term tenant carried a different definition in the previous statute, Section 2(i) of
the Urban Rent Restriction Ordinance, 1959 defined it as under:
(i) tenant means any person by whom or on whose account rent is payable for a
building or rented land and includes (a) a tenant  continuing in possession after
the termination of the tenancy in his favour, and (b) the wife and children of a
deceased tenant, but does not include a person placed in occupation of a building or
rented land by its tenant, unless with the consent in writing of the landlord, or a
person to whom the collection of rent or fees in a public market, car stand, or
slaughter house or of rents for shops has been framed out or leased by a municipal,
town or notified area committee, or by the Corporation of the City of Lahore or by the
Lahore Improvement Trust or any other Improvement Trust.
It will be noticed that the definition of the term "tenant" has been materially changed
from its previous definition. According to the definition given in the Sindh Rented
Premises Ordinance, 1979 following persons shall be the tenant:
(1)              A person who undertakes to pay rent as consideration for  possession
or occupancy of any premises. Undertaking may be oral or through a document.
(2)              A person who is bound to pay rent for being in possession
or occupation of a premises.
(3)              A person who holds on possession or occupies the premises even after
the termination of the tenancy.
(4)              Surviving heirs of a deceased tenant in actual possession or
occupation of the premises.
The sixth judgment is in the case of Fariduddin v. Mehboob Alt 1994 SCMR 1485. In
this case, the Hon'ble Supreme Court has held that landlord and tenant can prove existence
of relationship of landlord and tenant in other manners, provided by law and mere non-
existence of written tenancy agreement is not sufficient to dismiss the ejectment application.
The 7th judgment is in the case of Muhammad Yousuf u. Munawar Hussain and
others 2000 SCMR 204. In this case, the Hon'ble Supreme Court has held that an
agreement to sell the immovable property by itself does not confer any title on the vendee.
The Eighth judgment is in the case of Muhammad Rafiq v. M/s. Habib Bank
Limited 1994 SCMR 1012. In this case the Hon'ble Supreme Court has held that in the
absence of written agreement the landlord or tenant can establish the relationship of
landlord and tenant by producing evidence, Admissible in law.

The 9th judgment is in the case of Afzal Qureshi v. Mursaleen, 2001 SCMR 1434. In

this case the plea was taken on behalf of the respondent that neither any tenancy agreement
was executed between the parties nor he had ever paid rent to the petitioner and as such
petitioner cannot be termed as landlord, defined in Section 2(f) of the Ordinance.
The Hon'ble Supreme Court held that the High Court has rightly held that, question
of title/ownership be got determined prior to seeking ejectment of the respondent. It
was held that in the absence of relationship of landlord and tenant between the parties, the
question of dispute of title of ownership of the property in question be decided by a
competent Civil Court, as such controversies do not fall within the jurisdictional domain of
the learned Rent Controller. Their lordships of the Hon'ble Supreme Court referred
the dictum laid down in 1971 SCMR 82 that:
"We are conscious of the fact that ownership has nothing to do with the position of
landlord and payment of rent by tenant and receipt thereof by the landlord is
sufficient to establish the relationship of landlord and tenant between the parties".
"The petitioner failed to prove that rent was ever paid to him by respondent. It
hardly needs any elaboration that the requirement of relevant law is that the learned
Rent Controller cannot decide the question of relationship of landlord and tenant
against the tenant when the landlord has not established his position as
landlord beyond reasonable doubt. The petitioner has neither produced any tenancy
agreement nor any evidence in writing showing that rent was being paid to him.
No counter foil of any receipt, any letter from the tenant, any notice or any other
document could be produced and in our considered opinion the oral version 'of
landlord is not sufficient to hold that relationship of landlord and tenant
existed between the parties. If any reference is needed, 1983 CLC 613 can be
referred."
A perusal of the judgment reported in 1983 CLC 613 shows that a , learned Single
Judge of Peshawar High Court held in the case of Qadir Khan v. Kishwar Begum and
other, that the Rent Controller framed an issue on the question of relationship of landlord
and tenant but confined his order to determination of question of ownership of a house
without adverting to question of relationship of landlord and tenant and the Appellate
Court affirmed the finding of Rent Controller without deciding the question, whether the
relationship of landlord and tenant exists between the parties and such orders were not
sustainable. The orders were set aside and the matter remanded to the Rent Controller
for fresh decision on the point of ,. relationship of landlord and tenant. Thus the ratio of
judgment approved by the Hon'ble Supreme Court is that mere ownership of property is
not sufficient to establish relationship of landlord and tenant. At this juncture, I would like
to observe that although the judgment of Peshawar High Court, in the case of Qadir Khan
v. Kishwar Begum 1983 CLC 613 was under the West Pakistan Urban Rent Restriction
Ordinance, 1959, but the law laid down therein has been approved by the Hon'ble Supreme
Court, while considering the issue pertaining to the relationship of landlord and
tenant under the provisions of Sindh Rented Premises Ordinance, 1979.
The 10th judgment is in the case of Afzal All v. Azher Iqbal, 1997 MLD 2262
(Kar.). In this case his lordship Mr. Justice Rana Bhagwandas, a learned Single Judge of
this Court (as his lordships then was) held that mere Agreement to Sell by itself would not
be sufficient to establish transfer of title in the immovable property. It has been further
held that the appellant failed to establish that he had inducted the respondent as his
tenant. Admittedly, no tenancy agreement was executed between the parties and there is
absolutely no evidence that the respondent had ever paid any amount by way of rent to
the appellant as consideration for his occupation. On appellant's own showing no rent
receipts were ever issued by him, therefore, none could be produced and that it is settled
that, tenancy is valuable right and it must be proved by evidence of high order, which
was unfortunately badly lacking in the case. It was further held that in order to succeed in
eviction application, appellant must prove by satisfactory evidence that he had inducted the
respondent as tenant in the demised premises in exercise of his authority as landlord.
Learned counsel for the petitioner has produced a photocopy of an unreported
judgment of Hon'ble Supreme Court in C.P. No. 388-K of
1997, Muhammad Younis v. Syed Muhammad Yaqoob, whereby the Hon'ble Supreme
 Court dismissed the application for leave to appeal against the judgment of learned Single
Judge of this Court reported as 1998 CLC 736. Learned counsel for the petitioner has
submitted that the law, as interpreted by the learned Single Judge of this Court in the case
of Muhammad Younis (supra) has been upheld by the Hon'ble Supreme .Court. The
contention of the learned counsel for the petitioner is correct, but I would like to
reiterate the observations made by me while" referring to the judgment reported as 1998
CLC 736. In this case the property was purchased from the Settlement Department.
The Hon'ble Supreme Court has also taken notice of the fact that the premises in question
was initially transferred to the petitioner. The litigation ensued between the parties
and ultimately the respondent succeeded before the Hon'ble Supreme Court and in
pursuance of the judgme nt of Hon'ble Supreme Court, the respondent became owner of
the premises and served a notice on the petitioner intimating that he has become landlord of
the premises. A plea was taken on behalf of the petitioner in the ejectment proceedings that
he was a trees passer and, therefore, relationship of landlord and tenant between the
parties did not exist. The Hon'ble Supreme Court observed that there was no force in the
contention that the petitioner was not bound to pay the rent because the petitioner
initially succeeded in getting the premises transferred in his name, which indicates that he
occupied the property as tenant. The Hon'ble Supreme Court observed that:
"The contention of Imran Ahmed that there was no relationship of landlord and
tenant between the parties appears to be completely devoid, of force, because if
initially premises in question had been occupied by the petitioner as tenant and
subsequently his claifn of ownership over the said property could not succeed, the
petitioner once again reverted to the said situation. He was, therefore, bound to
pay rent to the respondent, who was a new landlord of the premises, after notice
was received by him from the former."
This brings me to the rulings relied upon by Mr. Abdul Naeem, learned counsel
for the Respondent No. 1.
The first judgment is, in the case of Afzal All v. Azher Iqbal, 1997 MLD 2262. The
learned counsel for the petitioner has also placed reliance on this judgment and the ratio
thereof has already been narrated in the earlier part of this judgment.
The second judgment is, in the case
of Afzal Ahmed Qureshi v. Mursaleen, 2001 SCMR 1434. This judgment has been relied
upon by the learned counsel for the petitioner as well and the dicta laid down therein has .
already been produced earlier.
The third judgment is, in the case of Hqji Abdul Sattar v. Additional District
Judge, Rawalpindi, 1984 SCMR 925. In this case, an industrial immovable property was
the ground that the property had never been rented out to them. The Rent Controller found
that the. property was transferred to the respondent by the Settlement Department and
even if no notice under Section 30 of Displaced Persons (Compensation and Rehabilitation)
Act has been served, the same was of no legal effect. However, the Rent
Controller dismissed the ejectment application for the reasons that the
dispute pertaining to title of the property was subjudice in Civil Court. On appeal learned
Additional District Judge without noticing that the property had been transferred as an
industrial concern held that, since the appellant had been in possession of the property, it
had become tenant automatically, after issuance of PTD and as no rent has been paid, he
was liable to be ejected. The order was challenged by the appellant through writ
petition. The learned Single Judge of the Lahore High Court dismissed the writ petition
in limine for the reason that, assuming that no statutory tenancy is created, the evidence has
established existence of oral testimony. The Hon'ble Supreme Court granted leave to
appeal to consider, inter alia if relationship of landlord and tenant was established.
The Hon'ble Supreme Court held, that even it the respondent's ownership of the property by
virtue of PTD held by them was assumed there is still no proper material to support
existence of tenancy with the appellant. It was held that under the settlement laws,
no statutory tenancy was created. Considering the plea of oral letting out of the demised
premises, it was observed that in the absence of proper evidence on record to the existence of
oral tenancy, the High Court had fallen in error in holding that oral tenancy did exist.
The Hon'ble Supreme Court further observed that no • document has been produced to
show existence of the tenancy or payment of rent to the respondent in pursuance of the
tenancy. Ultimately, the Hon'ble Supreme Court held that existence of relationship
of landlord and tenant was not established. The appeal was allowed and the orders of the
High Court and Additional District Judge were set aside and that order of Rent Controller
was restored.
The fourth judgment is in the case of Qassim v. Aziz Baig, 1993
CLC 2385. Hon'ble Mr. Justice Mukhtiar Ahmed Junejo (as his lordship then was) after
examining the provision contained in Section 2(f) of the Ordinance, containing definition
of landlord held that:
"The respondent may be owner of the shop in litigation but by virtue of his being
owner of the same, he could not be treated to be landlord of the appellants.
Admittedly, there is no privity of tenancy contract between the respondent and
appellants. "
The fifth judgment is in the case of Beejal Mai v. Punaji 1987 CLC 1134. la this case
a learned Single Judge of this Court held that, however, mere fact that the respondent is
owner/landlord of the demised premises would not ipso facto create relationship of landlord
and tenant between the parties. Such relationship can be created either by statute or by
contract, whether oral or in writing". This was a case under the Ordinance and the learned
Single Judge while examining the existence of any contractual or oral relationship of
landlord and tenant between the parties, held that in the cited case, admittedly, there was no
written agreement of tenancy. No documentary evidence to show payment of rent by
appellants was produced. According to the respondent, he inducted the appellant as tenant by
oral agreement and that he used to issue rent receipt on blank paper of which no counter foil
was kept. It was held that burden of proof lies upon the landlord to establish relationship of
landlord and tenant between the parties.

Notwithstanding, the admitted ownership by the respondent, it was held that in the absence
of any reliable evidence on the point of contractual tenancy, the relationship of landlord
and tenant did not exist and the     jurisdiction of Rent Controller was ousted. It was
observed that the parties can seek redress through Civil Court. 
After careful examination of the contentions raised before me and perusal of the
judgments relied upon by the learned advocates for the parties, I am of the opinion that
contradictory views expressed by the several learned Single Judges of this Court, are not
required to be dilated upon, for the reason that all the issues have been considered
and decided authoritatively by the Hon'bleSupreme Court. Every principle of
law decided and pronounced by the Hon'ble Supreme Court is binding on all the Courts
in Pakistan, including High Courts. It is also established principle that even the obiter
dicta of the Hon'ble Supreme Court has binding effect. Thus leaving aside the conflicting
judgments delivered by the learned Single Judges of the High Court, It would like to
deduce the conclusions from the dicta laid down by the Hon'ble Supreme Court in
various judgments cited at Bar.
However, before drawing the conclusions, I would like to observe with all due
deference, that some of the learned Single Judges, have  _,.-attempted to define the
terms, of "landlord"' and "tenant" used in the Ordinance and defined under Section 2, with
reference to the help of dictionary. It is a very dangerous part to tread on. The
interpretation of statute by holding the statute in one hand and the dictionary in another,
has never been approved as sound principle of interpretation of statutes. No doubt, when
some words, terms and expression are not defined in a statute, it is permissible to seek a help
from the dictionaries but placing sole reliance on dictionary meaning is not an advisable
mode of interpreting the statute. ' ' All efforts should be made to interpret the terms used
by the legislature in an enactment from the scheme of statute itself and by examining the
entire scheme in its totality. The words terms, and expressions, used in a statute take their
complexion with reference to the context in which they are used and the scheme of law in
which they occur. This observation is made with reference to some Single Bench Judgments
of this Court, in which the word "bound" used in Section 2(j) of the Ordinance containing
definition of tenant has been considered in isolation and has been defined with reference to
the meaning of the words in dictionary. Under Section 2(j) of the Ordinance, the term
"tenant" has been defined to mean, 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. Thus, while interpreting this provision of law, it has been held in the
case of Muhammad Younis (supra) that the appellant was under moral obligation to
compensate the owner of the premises and because of this moral obligation he became
a tenant in the terms of Section 2(j) of the Ordinance. The infirmity of the logic is
apparent from the fact that the established principles of  interpretation of statute
have been ignored. The definition of "tenant" contained in Section 2(j) of the Ordinance
starts with the word means and it f is established principle of interpretation of statute that
whenever a definition starts with the word "means", it is conclusive and normally nothing is
to be added to such conclusive definition. However, when definition starts with the word
"includes" as indicated in Section 2(g) of the Ordinance containing the definition of "rent"
then definition is not conclusive but it is incltlsive and the other matters of same category or
similar nature can be included in the definition. In some of the Single Bench Judgments,
relied upon by the learned counsel for the petitioner, it appears that the entire scheme in
its totality has not been considered. In the definition of term "tenant" contained in Section 2(j)
of the Ordinance and definition of "landlord" contained under Section 2(f) of the Ordinance,
the word "premises" has been used. Likewise under Section 15 of the Ordinance, the word
"premises" has been used. The word "premises" has been defined by the legislature itself in
Section 2(h) as a "building or land, let out on rent but does not include hotel". Thus while
interpreting the definitions of landlord and tenant, contained in Clauses (f) and (j) of Section
2 of the-Ordinance, the definition of word "premise" is also required to be kept in view and
according to definition in Section 2(h) of the Ordinance its mean building or land let out
on rent. This is exclusive definition of the premises which totally excludes any transaction
other than letting out on rent and thus it would be against the manifest intention of the
legislature to hold that mere ownership of the property by one person and possession thereof
by other, irrespective of the fact whether it was let out on rent or not would create relationship
of landlord and tenant because of moral obligation. The Rented Premises Ordinance, 1979 is
not the only law in the province of Sindh providing relief to an owner of a building, in case
the relationship of landlord and tenant is not established within the scheme of the Ordinance
and owner of the building or land can have recourse to the other laws for the time being in
force and can invoke the jurisdiction of Civil Court for taking the possession of a building
or land as well as compensation/mesne profits. I would further like to observe that
the provision for statute are not to be interpreted only on the touch stone of morality or
moral obligation but on the basis of law enacted by the Legislature.
With the above observations, I am of the view that the following conclusion can
be drawn from the judgments of the Hon'ble Supreme Court cited at bar:-
(i)       The sale Agreement per se does not confer any title in the property and
merely confers the right to enforce the specific performance of the contract;
 (ii)      mere  ownership  of the  building by  one  person and  the
possession  thereof by  other  person   does   not create the

relationship of landlord and tenant between the parties, as envisaged

under Sindh Rented Premises Ordinance, 1979;

(iii) it is not obligatory to execute a tenancy agreement in writing and the

provisions contained in Section 5 of sindh Rented Premises Ordinance, 1979
are directory and not mandatory in nature;

(iv) there can be verbal/oral tenancy also but in order to establish such tenancy an
evidence of every high standard is required, from which the facts of tenancy is
established on the principle of preponderance of probabilities;

(v)      the tenancy can be statutory or contractual;

(vi) there is no concept of any deemed tenancy either on the consideration of the

morality or under any fiction of law;

(vii) in case the statutory or contractual tenancy is not established, creating

relationship of landlord and tenant between the owner and occupier of the
property, the Rent Controller has no jurisdiction and the parties may have
recourse to the Civil Court for resolving the dispute/seeking relief;

(viii) a person can be owner of the building or land without being landlord and can
be landlord without being owner thereof;

(ix) the Rent Controller has no jurisdiction to decide the case pertaining to

ownership/title of the property and the jurisdiction is exclusive vested
in Civil Court.

Applying the above conclusions to the facts of the present case, I find that admittedly
there-is no tenancy agreement between the parties and no rent has been paid by the
Respondent No. 1 from 1995 onwards and there is no evidence to establish any undertaking
on the part of Respondent No. 1 to pay the rent of the shop in dispute. There is no admission
on the part of Respondent No. 1 to prove the payment of rent at any time or any obligation to
pay rent by him. There is no evidence to establish verbal/oral tenancy between the parties.
The contention of learned counsel for the petitioner, that the petitioners are landlord of the
Respondent No. 1 merely on the basis of ownership of shop in question and the Respondent
No. 1 is tenant by mere possession thereof has no substance. 
For the foregoing reasons, it is held that the impugned judgment of learned District
Judge does not suffer from non-exercise of jurisdiction, wrong exercise of jurisdiction or
commission of any illegality causing miscarriage of justice. There is no infirmity in the
impugned judgment warranting interference in exercise of Constitutional jurisdiction of
this Court. The petition stands dismissed accordingly.

(M.Y.)                                                                            Petition dismissed.