Order Sheet
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Constitutional Petition No.S–401 of 2022
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DATE |
ORDER WITH SIGNATURE OF JUDGE |
Petitioner : Rehmatullah Brohi,
Through Mr.Mohammad Ibrahim Lashari, Advocate.
Respondent No.1 : Ghulam Sarwar Sadhayo,
Through Mr. Abdul Rehman Mughal, Advocate.
Date of hearing : 04.05.2023.
Date of Decision : 18.05.2023.
ORDER
ARBAB ALI HAKRO, J.- The respondent No.1/Landlord filed a Rent Application No.05/2021 against the Petitioner/tenant before Rent Controller at Jacobabad seeking his eviction from the residential house constructed over C.S No.398/1 admeasuring 100-00 Sq. Yds, Ward No.5, situated at Shah Ghazi Mohallah Taluka & District Jacobabad ("demised premises"), on the ground of default in payment of monthly rent and to elongate the area of Masjid by demolishing the demised premises as devout people facing difficulties while offering prayer. However, vide Order dated 09.4.2022, the application u/Order VII, Rule10, C.P.C.("the Code") filed by the Petitioner was dismissed by the Rent Controller. The Civil Revision Application No.06 of 2022 against the aforesaid Order was dismissed by learned District Judge, Jacobabad vide Order dated 11.11.2022. The above concurrent findings of the learned Courts below have been impugned by the Petitioner before this Court through this Petition under Article 199 of the Constitution of Islamic Republic of 1973.
2. It is a case of respondent No.1 in his Rent application before the Rent Controller that he is legal and lawful Mutawali/Molvi of Masjid and a residential house constructed over demised premises, which is Wakf property. The demised premises is rented out to the Petitioner for a monthly rent of Rs.500/. However, he has been defaulting on the rent for the past 10(ten) months. Respondent No.1 initially approached the Petitioner to vacate the demised premises due to the need to expand the Masjid, as it is currently overcrowded.
3. In his written reply, it was contended by the Petitioner that eviction application against him is not maintainable; there is one Masjid, three shops, which are already in possession of the Mutawali, besides house adjacent to the Masjid. The said shops and house were rented out by the Waqf owner about 100 years ago; respondent No.1 did not rent the demised premises, nor he is a rightful landlord/Mutawali of the Masjid; in fact, the demised premises had been rented to their ancestors for past 100-years at a monthly rent of Rs.50/-. Throughout this entire period, the rent amount has consistently been credited to the Masjid account, as per the arrangement made with their ancestors; the rent has been regularly and diligently paid to the landlord/Mutawali. However, for the past year, the landlord/Mutawali has intentionally refused to accept the rent payment. In year 1988, the father of the landlord/Mutawali filed a Suit No.21 of 1988 for eviction and possession before 1st Senior Civil Judge, Jacobabad, which was decreed vide Judgment dated 30.11.1991. However, father of the Petitioner/tenant challenged said Judgment before the High Court of Sindh, Bench at Sukkur. It was ultimately resolved through a compromised Order dated 08.9.2006; resultantly, a “Decree” for possession was set aside, and a schedule was established according to which the outstanding amount of arrears/rent was determined and set at Rs.200/- per month, while the monthly rent from January 1991, onwards was fixed at Rs.300/- per month. He has been continuously paying the said rent to respondent No.1/landlord under receipts as per schedule.
4. The Petitioner filed application u/Order VII Rule 10 of the Code on the ground that i)the Rent Application is not filed before the proper forum, hence is not maintainable, ii)The Rent Controller has no Jurisdiction, and iii)The Rent Application is barred u/Sections 9 and 21 of the Sindh Waqf Properties Ordinance, 1979("the Ordinance"). While dismissing the above application vide Order dated 09.4.2022, the Rent Controller observed that Sections 9 and 21 of the Ordinance have no implication; the matter was compromised in Civil Revision No.03 of 1992 between the predecessors of parties and High Court has not taken away the jurisdiction, but accepted relationship between the parties as landlord and tenant, therefore, Rent Controller has jurisdiction to deal with the properties and provision of Order VII Rule 10 of the Code is not applicable in rent proceedings inasmuch as the Rent Controller has adopted the procedure laid down under Section 19 of the Sindh Rented Premises Ordinance, 1979.
5. The Civil Revision filed by the Petitioner against the above Order was dismissed by the Revisional Court vide impugned Order dated 11.11.2022. The Revisional Court concurred with the decision of the Rent Controller. Further, it held that the Sindh Waqf Properties Act, 2020("the Act") came into force on 22nd September 2020 through a Notification issued by the Government of Sindh bearing No.PAS/LEGIS-B-22/2020, hence by virtue of Section 32 of the Act, the Ordinance has stood repealed; the Petitioner in lawful possession of demised premises under the tenancy agreement with landlord/Mutawali of the Masjid, hence Sections 10 and 11 of the Act are not applicable in this case and jurisdiction and power to terminate a lease or resume a tenancy in case of breach of any condition of said tenancy or lease or demised premises is required to be used for a public purpose by the Government. Therefore, Rent Application under Section 15 of Sindh Rented Premises Ordinance, 1979 (“the Ordinance, 1979”) for eviction of a tenant from Waqf Property is maintainable and within the jurisdiction of the Rent Controller.
6. It is contended by the learned counsel for the Petitioner that the demised premises is Waqf Property and the rent amount is being adjusted/credited in the account of Masjid; therefore, any breach or obligation between the parties is required to be adjudicated/resolved by Administrator duly appointed in terms of Sections 10 and 11 of the Act, who confers power to terminate the tenancy or evict the tenant from the demised premises. Thus, the jurisdiction of the Civil or Revenue Court or any other Authority is barred in terms of Section 25 of the Act. It is further contended that both the Courts below illegally dismissed the application u/Order VII, R 10 of the Code and failed to consider said legal terms of the Act. It was further contended by him that where the question of jurisdiction is involved, then provisions of Civil Procedure are applicable. He, by referring to the Order dated 02.8.2022, passed by Assistant Collector Grade-I, Jacobabad, filed by him through a statement, contended that through the above Order, the Auqaf Department must be approached for decision regarding sell, rent, or construction in respect of demised premises. It was further urged by him that the impugned orders, being not sustainable in law, are liable to be set aside. In support of his submissions, the learned counsel placed reliance on Mst. Shahana Jawed vs. Haroon (1991 MLD 1914), Mohammad Ibrahim vs. Zeenat Bibi and others (1991 CLC 1967), and Abdul Hussain and 2 others Vs. the Fourth Rent Controller, South Karachi and 2 others (1993 CLC 1809).
7. Conversely, it was contended by learned counsel for respondent No.1 that the Waqf property is distinct in Section 163 of Mulla's Muhammadan Law and the object of Waqf for Masjid to conduct worship therein. Masjid is an object of Waqf, and it does not include in Section 2(n) of the Act as described in Section 3 of the Mussalman Waqf Validating Act, 1913 ("Act VI of 1913"). It was contended by him that the relationship of landlord and tenant conceded by the Petitioner in Para Nos.8, 9 & 15 in his Written Reply. Thus, the Rent Controller has jurisdiction to entertain eviction application and Sections 10 and 11 of the Act are not germane. It was urged by him that the provision of Order VII Rule 10 of the Code is only applicable in Civil Suits; even otherwise, jurisdiction in the present matter is conferred to the Rent Controller. While referring to the Order dated 02.5.2023 of Collector/Deputy Commissioner Jacobabad, he countered the contention of learned counsel for the Petitioner that Order dated 02.8.2022 of Assistant Collector Grade-I Jacobabad has been set aside by directing the parties to decide their dispute before Rent Controller, where eviction application is pending. In support of his contentions, he relied on Manager Auqaf and another vs. Mazhar Ali (1985 CLC 1794), Yousaf and another vs. Muhammad Zubair and another (PLD 1986 Supreme Court 154), Muhammad Bashir vs. Yaseen and others (2011 CLC 1464) and Hanif and others vs. Malik Armed Shah and another (2001 SCMR 577).
8. I have heard the learned counsel for the parties and, with their able assistance, examined the documents on record, the applicable laws, and the cited judgments. The Petitioner questioned the jurisdiction of the Rent Controller in application u/Order VII Rule 10 CPC, relying on Sections 9 and 21 of the Ordinance, under which power is conferred to the Administrator to terminate the lease or resume a tenancy for breach of conditions in respect of any immovable Waqf property and Bar of the jurisdiction of Civil or Revenue Court or any other authority to question the legality of anything done under the Ordinance with regard to any matter which the Chief Administrator is empowered. However, as per Notification No.PAS/Legis-B-22/2020, the Sindh Waqf Properties Bill, 2020 having been passed by the Provincial Assembly of Sindh on 21st August 2020 and assented to by the Governor of Sindh on 22nd September 2020 and was published as an Act of the Legislature of Sindh. The Act has commenced to make provisions relating to the proper management and administration of Waqf Properties in the Province of Sindh. It would be appropriate to read Section 32 of the Act, which provides as under: -
"32. Repeal and Savings. ---(1) The Sindh Waqf Properties Ordinance, 1979 (IX of 1979) shall, on commencement of this Act, stand repealed.
(2) Notwithstanding the repeal under subsection (1), anything done, rules made, notifications or orders issued, officer appointed, notice given, proceedings commenced, or other action taken under the repealed Ordinance or purportedly under that Ordinance till the coming into force of this Act, shall be deemed to have been validly done, made, issued, appointed, given, commenced or taken, under this Act."
9. This being the legal position, I am convinced with the findings of the learned Revisional Court that when the Ordinance is repealed and replaced by a new law (The Act), it is to be adopted at once.
10. Indeed, the demised premises is built over Wakf Property, where Masjid and shops are constructed. Thus, it would be conducive to understand the term Wakf under substantive and Islamic Law, i.e. The Mussalman Wakf Act 1923, explain the meaning of the “Wakf ” in section 2 (e) as follows:-
(e) “wakf” means the permanent dedication by a person professing the 3 [Muslim] faith of any property for any purpose recognised by the 3 [Muslim] law as religious, pious or charitable, but does not include any wakf, such as is described in section 3 of the 3 [Muslim] Wakf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the wakf was created or by any of his family or descendants.
11. Generally and academically, the word “Wakf” means detention, stoppage, perpetual dedication or tying up. It is the detention of the property that is made by the person called wakif that is used for religious, pious, or charitable purposes as provided under section 03(f)(ii)(iii)(iv) of the Mussalman Waqf Act 1923. Once a Wakf is created, it cannot be transferred or revoked, as on creating a Wakf, the ownership of the property is transferred from the Wakif to Allah Almighty. The usufruct that is obtained from the property is for the benefit of mankind. The origin of Wakf is traced by the utterance of the Holy Prophet (P.B.U.H), as once Wakf was quoted as: “Tie up the object and give away the fruit.” The Wakf term was developed with the advent of Islam. There was no concept of Wakf in Arabia before the Islam religion was born. Once the Wakif creates a Wakf, it gets tied up forever and becomes non-transferable. The main objective behind creating a Wakf is that its usufruct is made available for purposes that are valid under Muslim Law. For creating a Wakf, there are certain essentials that need to be followed: -
i. The wakf should be for religious, pious, and/or charitable purposes,
ii. It should be of permanent nature, i.e., absolute, irrevocable, non-transferable, and unconditional,
iii. Once the Wakf is created, the ownership vests in the name of Almighty Allah, i.e., the detention of the thing, is implied ownership of the almighty.
12. The usufruct that is obtained from the Wakf property is for the benefit of mankind. Wakf cannot be created by every person; there are only certain people who can create a Wakf. It can be created by a major person, with no fraud, undue influence or coercion, or any deadly illness. There are only certain things that can be made, wakfs like the Koran, swords, war camels and horses, shares in companies, and money for loans to the poor. Thus, Wakf, under Muslim Law, is created by a Wakif orally or in writing. Then the Almighty Allah becomes the owner of the property, which is irrevocable and later cannot be transferred back. Hence, Wakf can only be those objects that are considered valid under Muslim law.
13. Now, reverting to the merits of the case. The arguments of the learned counsel for the Petitioner are that in terms of Sections 10 and 11 of the Act, the Rent Controller has no jurisdiction to entertain an eviction application in respect of a tenancy between the parties. The counsel did not dispute the fact that the demised premises is a Waqf property and was not registered under the Act as well as Ordinance. It would be advantageous to reproduce Sections 6 and 7 of the Act as under: -
"6. Registration of Waqf Property. ---(1) Any Waqf Manager, whether a creator of the Waqf or otherwise, or any authorized representative nominated by him, shall get the waqf property registered with the Chief Administrator in the prescribed circumstances and manner.
(2) The information to be contained in the registration of any waqf shall be prescribed.
(3) Any waqf property not registered with the Chief Administrator as required under subsection (1) shall be deemed to have been notified under section 8 of Sindh Waqf Properties Act, 2020.
(4) Collector/Deputy Commissioner of the District, being the custodian of the land records and the District Registrar (concerned), being focal person of registering all deeds, agreements and documents etc, shall furnish, in the prescribed circumstances and manner, a consolidated annual report of all waqf properties recorded as waqf during the year in respect of their respective Districts to the Chief Administrator for information and further necessary action, or as deemed appropriate by the Chief Administrator, under the provisions of law for the time being enforced.
(5) Any change in the waqf property information shall be updated by the Waqf Manager to the District Registrar in a timely manner, as prescribed.
7. Waqf Manager to obtain and hold information. ---(1) The Waqf Manager shall obtain and hold the information as required under subsection (2) of section 6 and shall ensure that the information is updated in a timely manner as prescribed.
(2) Any Waqf manager shall provide, upon request, any of the information held in accordance with subsection (1) of Section 6 to the Chief Administrator in a timely manner as prescribed.
8. Chief Administrator may take over Waqf Property by Notification.---(1) Notwithstanding anything to the contrary contained in or any other law for the time being in force, or in any custom or usage, or in any decree, judgment or order of any Court or other authority or in any proceedings pending before any Court of other authority, the Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of waqf property.
Provided that during the lifetime of waqf (person dedicated waqf property), the Chief Administrator shall not takeover and assume the administrative control, management, and maintenance of such waqf property, except with the consent of such person and on such terms and conditions as may be agreed upon between such person and the Chief Administrator.
Explanation. ---For the purpose of this section, "control" and "management" shall include control over the performance and management of religious, spiritual cultural and other services and ceremonies (Rasoomat) at or in a waqf property."
14. Admittedly, no documentary proof has been presented by either party with regard to the registration of the demised premises in compliance with Section 6 of the Act. Furthermore, the Chief Administrator has not taken possession of the demised premises through Notification in accordance with Section 8 of the Act. Under the prevailing conditions, it is imperative to adhere to the stipulations set forth in Sections 10 and 11 of the Act regarding the prerogatives bestowed upon the Administrator towards dislodging individuals wrongly occupying any Wakf Property or discontinuing a lease or tenancy in view of breach of the prerequisites. It must be noted that this is contingent solely upon the registration of the demised premises through the Waqf Manager, the Founder of a Waqf, or any other authorized representative nominated as respondent No.1 in an instant case, wherein the Chief Administrator acquires possession of the demised premises through a Notification.
15. Furthermore, the Petitioner conceded in his written reply submitted before the Rent Controller that he has consistently fulfilled his rental obligations to respondent No.1/landlord. However, for the past year, the landlord has intentionally refused to accept payment and demanded to vacate the demised premises. To gain a deeper understanding of the previously mentioned statement, it is beneficial to reference the delineations of the phrases "landlord" and "tenant" as outlined in clauses (f) and (j) of Section 2 of the Ordinance, 1979, which are presented as follows: -
Clauses (f) & (i) of section 2 of the Ordinance.
"(f) 'landlord' means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises;"
"(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;"
16. Upon reading the definition of the term "landlord," it is apparent that this descriptor refers to an individual who possesses ownership of a given property and encompasses those who hold authorization or entitlement to collect payment for said property. The term "tenant" has been previously defined as an individual who assumes responsibility for paying rent as compensation for possessing or inhabiting any property either on their own behalf or on behalf of another party. This definition encompasses those who continue to inhabit the property after the termination of their tenancy, as well as the heirs of a tenant who remain in occupation of the property after the tenant's demise.
17. The Ordinance of 1979 was enacted to establish efficacious stipulations for the control of the connection between landlord and tenant and to safeguard their interests vis-à-vis leased/rented properties in urban locations. During proceedings, the learned counsel representing respondent No.1 submitted a statement dated September 8th, 2006. This statement was jointly filed by both the fathers of the petitioner and respondent No.1 in Civil Revision No.03 of 1992, wherein a decree for possession in respect of demised premises in favor of Wakif and specifications regarding outstanding and future obligations concerning the demised premises were confirmed in an order issued by the High Court of Sindh, Sukkur Bench, on September 8th, 2006. This ruling pertains to matters of a legal nature pertaining to property/entities involved in legal proceedings.
18. Based on the discourse, it is a logical inference that the interconnection of landlord and tenant among respondent No.1 and Petitioner, coupled with the unfolding of a chronological process and the passing of their respective fathers, resulted in the manifestation of a statutory tenancy. The conclusions drawn by the Revisional Court regarding the applicability of Sections 10 and 11 of the Act are deemed valid in instances where the demised premises have been duly registered or have undergone transfer of possession under the purview of the Chief Administrator. In the current circumstances, it is not advisable to preclude the jurisdiction of the Rent Controller.
19. The following argument put forth by the counsel representing respondent No.1 asserts that the rules and regulations outlined in the Code cannot be applied in the context of legal proceedings carried out under the Ordinance, 1979. Undoubtedly, while the provisions outlined in the Code may not be strictly and technically applicable to the proceedings conducted before the Rent Controller, it is still imperative that equitable principles are employed to regulate the procedures of these proceedings, particularly in relation to the question of jurisdiction. It, therefore, follows that the Authority (Rent Controller) ought to decide on matters of jurisdiction. Considering this, my belief is that it is appropriate to consider entertaining applications under Order VII, Rule 10 of the Code as a means of determining the jurisdiction and maintainability of Rent Applications.
20. The procedure for filing of the rent application is contemplated under Section 19 of the Ordinance, 1979, which is reproduced as under:-
“19. Procedure: (1) Where an application other than the application under Section 14 has been made to the Controller under this Ordinance, he shall, unless the application is summarily dismissed by him for reasons to be recorded, issue a notice to the respondent to file written reply, if any, within such period not exceeding fifteen days of the receipt of the notice.
(2) Where on the day fixed in the notice for the respondent to file written reply, it is found that notice has been served but the respondent has failed to file his reply, without any reasonable excuse the Controller may proceed to make an ex parte order and after such order has been made the Controller shall have no power to rescind such order.
(3) Where the respondent has filed the written reply, the Controller shall proceed to receive evidence first of the appellant and his witnesses.
(4) A party to a case under this Ordinance shall prove the evidence of his witness by producing the affidavit of such witness, a copy of which shall simultaneously be supplied to the other party and such other party shall the right to cross-examine the witness on such affidavit and if the witness has been cross-examined the party producing the witness may re-examine him.
(5) The Controller shall, instead of formally framing issues arising between the parties, state them briefly in the judgment and shall record findings on each such issue separately.
Bare reading of Section 19(1) of the Ordinance shows that: “Where an application other than the application under Section 14 has been made to the Controller under this Ordinance, he shall, unless the application is summarily dismissed by him for reasons to be recorded…….”. (The underlining is supplied). It is to be decided by the Rent Controller at the first instance before issuance of the notices whether the jurisdiction lies with him or not. The main ingredient governing the determination of the rent applications is the relationship of the landlord and the tenant, which itself requires evidence and should not be determined in a slipshod manner without providing an opportunity to the parties to lead evidence. However, the Rent Controller should not deviate from the procedure laid down under the Ordinance, 1979.
21. So far as the Civil Revision is concerned, the only remedy provided under Section 21 of the Sindh Rented Premises Ordinance, 1979 is an “Appeal” against the final Order of the Rent Controller, not an interim Order. It is a matter of record that the Impugned Order passed by the Rent Controller was not final; therefore, not appealable under Section 21 of the Sindh Rented Premises Ordinance, 1979, which section is restrictive in character and specifically bars appeal from interim orders. The obvious purpose of not providing appeal from interim orders is to avoid piecemeal decision and to ensure expeditious disposal of matters under the Ordinance, 1979. This object cannot be allowed to be defeated by the device of challenging such interim orders in Constitutional jurisdiction. This question came up for consideration before the Superior Courts on several occasions, including the case of Mst.Seema Begum v. Muhammad Ishaq and others (PLD 2009 Supreme Court 45).
22. In the hierarchy contemplated under the Sindh Rented Premises Ordinance, 1979, the “Appellate Court” is the final authority; therefore, the High Court can hardly interfere in the well-reasoned Orders and findings of the Rent Controller and Appellate Court unless grave miscarriage of justice, misreading, non-reading of the evidence available on record or error of jurisdiction was caused by the Rent Controller or Appellate Authority. Reliance may be placed on the dictum laid down by the Apex Court in the Case of Shakeel Ahmed and another v. Muhammad Tariq Farogh and others (2010 SCMR 1925) wherein it was held that: “Therefore, mere fact that upon perusal of evidence, High Court came to another conclusion would not furnish a valid ground for interference in the order of the appellate Court, which is final authority in the hierarchy of rent laws i.e. Sindh Rented Premises Ordinance, 1979”.
23. The case law relied upon by learned counsel for the Petitioner is distinguished from the case in hand, as such, does not apply to it.
24. In view of hereinabove facts and circumstances and the legal position, the impugned Orders of Courts below do not suffer from any illegality or jurisdictional error; hence do not require any interference by this Court in its constitutional jurisdiction. Accordingly, the instant petition is devoid of any merits and is dismissed, with no orders as to costs.
JUDGE