1996 PLP 1501 (MLD)

1. Briefly stated the facts which lead to this appeal are that the appellants filed ejectment case against the respondents named above, stating therein that the respondent is a tenant in a godown at a monthly rent of Rs.2,900 per month having its door in the lane on a portion of factory building owned and constructed by the appellant, on a plot of land measuring 1336 sq. yds., bearing Survey No.LY‑72‑1/2/12, Faqir Muhammad Durra Khan Road, Osmanabad, Karachi‑West, purchased through a registered sale‑deed by its sister concern M/s. Nusrat Trading Company. The monthly rent has been collected against rent receipts duly signed by the applicant. The opponent/respondent is a regular and habitual defaulter in payment of monthly rent and has not paid rent from 1‑1‑1992 to 1‑3‑1992 for 3 (three) consecutive months and thus arrears of rent of Rs.8,700 have accumulated as such the opponent is liable to clear the same. The opponent has also impaired the value and utility of the godown and that the opponent has rendered himself liable to ejectment from the said godown.

2. That the opponent/respondent in denial of the claim of the applicant/appellant filed his written statement. He denied the existence of relationship of landlord and tenant in‑between the parties. He also denied to have paid any rent to the applicant. He further asserted that he is owner of the disputed godown. The copies of the alleged rent receipts are forged and fabricated. In the end, he prayed that the Rent Application is liable to be dismissed.

3. That in support of his case applicant Wakeel Ahmed filed his affidavit in‑evidence along with copy of deed of partnership (Exh.A%3), deed of conveyance (Exh.A/4), copies of rent receipts (Exhs.A/5 to A/16), affidavit‑in‑ evidence of Ehsan Ahmed and S. Jamil Hashmi, who were cross‑examined by the respondent's Advocate. In reply one Abdul Mohsin, attorney of Razzaq filed his affidavit‑in‑evidence along with copies of sale receipt (Exh.0/1), sale agreement (Exh.0/2), receipt (Exh.0/3) and General Power of Attorney (Exh.0/4), affidavit‑in‑evidence of Muhammad Abbas Khan and produced N.I.C. of Abdul Mannan (Exh.0/6), Death Certificate of Haji Abdul Mannan (Exh.0/7), Form P.T.1 (Exh.0/8).

4. The learned trial Court after framing and determining the following points dismissed the rent case, hence this appals. "(1) Whether there is any relationship between the parties as landlord and tenant if so? (2) Whether the opponent has committed default in payment of rent from 1‑1992 to 1‑3‑1992? (3) What should the order be?"

5. On 11‑1‑1996 Mr. S.M. Shafiq concluded his arguments when Mr. Akhlaq Ahmed Siddiqui, the learned Advocate for the respondent, requested for adjournment and the case was adjourned to 21‑1‑1996, when none was present for respondent and the case was adjourned to 18‑2‑1996, when Mr. Akhlaq Ahmed Siddiqui left a chit with the reader that he is busy before the Hon'ble Supreme Court. On 23‑1‑1996 the learned Advocate for the respondent filed his written arguments in the Office, which were taken on record. In rebuttal the learned Advocate for the appellant argued, as such the judgment was reserved.

6. I have heard the valuable arguments of Mr. S.M. Shafiq Siddiqui, Advocate for the appellant, and perused the written arguments of Mr. Akhlaq Ahmed Siddiqui, Advocate for the respondent, and have gone through the entire record of the case and the citations relied in support of their contentions. 7. sOn Issue No. 1, Mr. S.M. Shafiq Siddiqui contended that the learned lower Court has erred in holding that there exists no relationship of landlord and tenant between the parties. He contended that the appellants have produced overwhelming evidence on record in the shape of title documents, and the carbon copies of the rent receipts of the monthly rent received from the respondent etc., to establish the relationship of landlord and tenant between the parties. He argued that the respondent Abdul Razzaq instead of examining himself, malafidely examined his attorney, as such he is guilty of withholding the important and very relevant evidence. He further argued that the respondent on the basis of forged and fabricated sale receipt and a sale agreement dated 15‑7‑1985 alleged to have been executed by Abdul Mannan in favour of Abdul Razzak son of Abdullah claimed his ownership of the godown in question. He drew my attention to the fact that on 15‑7‑1985 at 11‑00 a.m. the said Abdul Mannan died as shown in the death certificate issued by the K.M.C. and the Register maintained at Sakhi Hassan Graveyard, which fact alone shows that the said sale receipt and the sale agreement in favour of Abdul Razzaq on the face of it appear to be forged and fabricated documents. He also pointed out that the sale agreement is not a registered document, as such it creates no value in the eye of law. Mr. Akhlaq Ahmed Siddiqui, learned counsel for the respondent, has supported the findings of the learned trial Court. He submits that in the conveyance deed the date of death of Abdul Mannan is shown as 15‑9‑1985 while the respondent purchased the godown in question on 15‑7‑1985 through the sale agreement and that there exists no relationship of landlord and tenant between the parties. He' also contended that the appellant has failed to establish the said relationship. In support of their contentions the learned Advocates for both the parties have referred several authorities but what I feel is that the parties have not produced original documents before the Rent Controller and some documents have been produced in the above appeal so also the carbon copies of rent receipts issued by the landlord to the person tendered and paid the rent on behalf of the tenant and on some of the receipts the signature of the receipts the signature of the payee has also been obtained, who have not been examined before the Rent Controller, or their signatures have not been got examined by hand‑writing expert. Without considering the said aspects of the case, the learned Rent Controller decided the Issue No.1 in negative.

8. Without expressing my opinion on the above aspects of the case, so that it may not prejudice either of the parties I set aside the impugned order, dated 14‑12‑1992 and remand the case to the lower Court for fresh decision after affording full opportunity to the parties to lead their evidence and to produce documents. The carbon copies of the original rent receipts filed in the above appeal be returned to the appellant, after keeping their photostat copies on record, for producing the same in the trial Court. It is also observed that the learned Rent Controller has not put exhibit numbers on any document nor the same are so mentioned in the case diary. The rent case was filed on 16‑4‑1992 when it was admitted and process was ordered to be issued for next date viz. 3‑5‑1992. The case diary of 16‑4‑1992 is also not written. The Rent Controller should note that he should keep watch on the maintenance of case diary and the exhibits number, in case. The parties should bear their own costs. The Rent Controller is also directed to give special preference to his case and avoid unnecessary adjournments and to decide the case within 6(six) months. A.A./N-8/K Order accordingly.