1988 PLP 799 (CLC)

Date of hearing: 23rd April, 1987. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is directed against an order dated 28‑2‑1983 of learned XVIIth Senior Civil Judge/ Controller, Karachi, whereby he dismissed rent case No.5269/81 filed by the appellant Mohammad Abid Siddiqui. The appellant claimed to be landlord of a Shop No.219, Super Market Building, Saddar Co‑operative Market, Abdullah Haroon Road, Karachi by virtue of its gift made to him by his grandfather Zamin Ali. The shop is in occupation of the respondent Saeed Ahmad. The appellant claimed that the respondent was his tenant in‑ the shop at the monthly rent of Rs.250. He alleged that the respondent failed to pay rent to him despite service on him of notice under section 18 of the Sind Rented Premises Ordinance, 1979 dated 18‑10‑1981. He also averred that he needed the shop for his personal bona fide use for carrying on business there. The rent case was therefore filed on 22‑12‑1981 for eviction of the respondent on aforesaid two grounds. The respondent resisted the ejectment case. He raised plea of non‑maintainability of the rent case on the ground that the appellant did not have locus-standi to file the application. He contended that the shop stood allotted to Mr. Zamin Ali who had entered into business partnership in the shop with him at the fixed profit of Rs.250 per month. He challenged the validity of the gift of the shop in favour of the appellant. He also took plea that he had contacted Zamin Ali who had told him that he had not gifted the shop in favour of the appellant. The appellant filed his own affidavit in evidence and that of Zamin Ali. The respondent filed his own affidavit in evidence. The learned Controller held, by the impugned order dated 28‑2‑1983, that the respondent was in occupation of the shop by virtue of business partnership with Zamin Ali and there did not exist relationship of tenant and landlord between the appellant and the respondent or even between Zamin Ali and the respondent and dismissed the rent case. He did not record his findings on the other issues of default in payment of rent and the appellant needing the shop for his own use. The learned counsel for the appellant has urged that the shop was undisputedly allotted to Zamin Ali and he has made reference to the photostat copies of the allotment order dated 10‑8‑1968, Annexure "A" to the affidavit filed by the appellant. He has further urged that there was business partnership in the shop between Zamin Ali and the respondent but that partnership was for fixed period of four years which expired in 1974 and thereafter the respondent continued occupying the shop on tenancy basis. He has made reference to certain rent receipts produced in evidence through the respondent marked as Annexure "D", "E", "F", "G", "H", "I", and "J". He has next urged that the shop was gifted by Zamin Ali to the appellant Mohammad Abid Siddiqui and that such notice was served on the respondent and he had therefore become statutory tenant of the appellant. According to him, the respondent could not put challenge to the gift made by Zamin Ali in favour of the appellant. He has placed reliance on the cases reported in 1980 C L C 872 and 1189, 1983 C L C 2808 and 1983 C L C 2063. The learned counsel for the respondent has contended that no valid gift was subsisting in favour of the appellant and he had not become the landlord of the shop. He has further contended that no notice of such gift was given to the respondent by Zamin Ali. He has relied upon a case reported in P L D 1979 Lah.

336. He has next contended that the respondent had challenged the title of the appellant over the shop and that question could be determined by only the Civil Court and until that was done, the appellant could not maintain the rent case for eviction. He has relied upon a case reported in 1983 S C M R 1064. He has also made reference to the case cited as 1985 M L D 569 Kar. and P L D 1967 Kar. 237 (Page No. not correctly given). The undisputed facts that the shop in occupation of the respondent was allotted to lamin Ali by the Co‑operative Development Fund and Projects Organization and the respondent was put in possession thereof by Zamin Ali in pursuance of business partnership between them for a period of four years. It is not disputed that the tenure of partnership expired in the year 1974. The appellant's contention is that after the expiry of the tenure of business partnership, the respondent was allowed' to remain in occupation of. the shop as the tenant and he started paying rent and later made default in payment thereof. The respondent's contention is that the partnership continued and there was no change in the nature of his occupation of the shop and the relationship between them had not changed to that of tenant and landlord. On this controversy, the appellant has relied upon seven receipts Annexure "D", "E", "F". "G", "H", "I", and "J" put in evidence through the respondent. All the receipts admittedly stand authenticated by the signature of the respondent. The entries made therein indicate that they are essentially rent receipts. They issued in the months of July, August, September, October, November and, December, 1980 and January. 1981. These receipts confirm the plea of the appellant that the respondent was occupying the shop as the tenant and falsify the contention of the respondent that he was continuing in occupation of the shop as the partner. Evidently, the respondent was occupying and continues occupying the shop as the tenant. The next question for consideration is whether the appellant had become the landlord of the shop. The shop was originally allotted to Zamin Ali, who has supported in his evidence the claim of the appellant that he had gifted the shop to him. This change in the title over the property was admittedly communicated to the respondent and therefore he had become statutory tenant of the appellant by virtue of section 18 of the Sind Rented Premises Ordinance, 1979. The respondent could not challenge the validity of gift made by Zamin Ali in favour of the appellant. This view was adopted by Azad Jammu and Kashmir High Court in the case Atta Muhammad v . .Jan Mohammad and another 1980 CLC 872 and also by the Lahore High Court in a case Mohammad Aslam v. Fazal Karim, reported in 1980 C L C 1189. Same view was also adopted in another case of the Lahore High Court viz. Gulistan etc. v. Mohammad Akram reported in 1983 C L C 2808. In a case Mirza Mustafa Baig v. Mst. Khatoonhadi, 1983 C L C 2063 it was held by this Court that the person proved to be tenant could not be heard to say that he was not a tenant but was the trespasser so as to oust jurisdiction of the Controller. The cases relied upon by the learned counsel for the respondent do not apply to the question under consideration. In the case Rehmatullah v. Ali Mohammad and another 1983 S C M R 1062, it was held that where there is dispute about ownership about of disputed premises, it was held that the Rent Controller could not go into disputed "question of title", but in the instant case the respondent has not claimed title over the shop. In the case Anjuman‑e‑Islamia Muzaffargarh v . Ashiq Hussain and another P L D 1967 Lah. 336, the question under consideration was validity of gift between the parties claiming proprietary right in respect of property but there was no question of any dispute with any tenant. In the result, the evidence on the record does establish that there exists relationship of landlord and tenant between the appellant and the respondent. The learned Controller has not examined the issue in right direction. The appeal is allowed and the impugned order is set aside. The case is remanded to the learned Controller to decide it on issue Nos. 2 and

3. It may be mentioned that this situation would not have arisen if the learned Controller had not adopted short cut course and dismiss the rent case by recording his finding on only one issue. The parties shall bear their own costs. H. B.T./M‑284/K Case remanded.