1898 PLP 925 (MLD)

Niaz Hussain G. Khichi for Appellant. The respondent filed application for ejectment of the appellant in respect of house bearing No.988 situated at Azam Basti, Mahmoodabad, Karachi. It was alleged that the house was rented out under an agreement dated 29‑9‑1976 Rs.100 p.m. which was increased to Rs.200 p.m. excluding electricity charges. The appellant has wilfully defaulted in making payment of monthly rent from the month of April, 1984. The appellant filed written statement in which he denied that there is relationship of landlord and tenant between the parties. It was alleged that the property is owned by Mst. Naseem Begum daughter of Bashir Ahmed who is the landlady. It was also denied that the appellant had executed any tenancy agreement or paid any rent. The appellant has been paying rent to Mst. Nasim Begum upto December, 1984 and a photo copy of the receipt issued by her was annexed with the written statement. The learned Controller held that relationship of landlord and tenant exists between the parties and granted ejectment application.

2. The matter was partly heard ealier. When it was called today a request was made for adjournment on behalf of the respondent's advocate which has been rejected.

3. Mr. Niaz Hussain Khichi has contended that from the evidence on record, the respondent has failed to establish that she was the landlady of the premises in dispute. The learned Controller has relied on the evidence of the respondent's rent collector and on documents namely notice dated 6‑5‑1985, five counterfoils of the receipts showing payment of rent and tenancy agreement. The learned counsel for the appellant has contended that none of these documents were proved. He has gone to the extent of alleging that the counterfoils of receipts relied upon by the learned Controller which are at pages 39, 41, 45, 47 and 49 of the lower Court record were not produced during evidence. The learned counsel has taken me through the entire evidence and nowhere these documents were produced properly through any witness. They have not been exhibited as is the practice in respect of documents which are produced through witnesses. The last two counterfoils at pages 47 and 49 are photo copies of the same document therefore, in total there are four counterfoils relied upon by the Controller. The first three counterfoils do not bear the signature of the appellant. However, counterfoil No.1075 which is in respect of rent for the month of March, 1984 bears the signature of one Aziz Masih. The year is written in such a way that it can be read as `86' also but in my view it is 1984 because in the ejectment application it has been alleged that rent has not been paid from the month of April, 1984. Therefore, this counterfoil is in respect of rent for the month of March, 1984.

4. The learned counsel for the appellant has also pointed out that the appellant had produced Exh.2 which is at page 25 of the lower Court record. It is a copy of the receipt alleged to have been issued in the name of Aziz Masih in respect of rent for the month of March, 1984. The number of this counterfoil is 1599. The learned counsel has contended that rent for the month of March, 1984 has been shown to have been paid under two counterfoils which bear different numbers. This clearly shows that there is forgery and manipulation and none of the counterfoils can be relied upon. The counterfoil No.1599 bears the signature of one Aziz whereas counterfoil 1075 bears the signature of Aziz Masih. The appellant has denied his signature of‑these documents. He was not confronted with document at page 47 which is alleged to bear his signature and was not proved. I am not inclined to believe the genuineness of these counterfoils and the one which had been produced earlier as Exh.2. These five counterfoils have not been properly and legally produced and proved. It is a matter of great concern that how these documents were allowed to be brought on record and relied upon by the Controller. If such practice is allowed by the Presiding Officer no sanctity will be attached to the Court records.

5. There remains agreement and notice on which reliance has been placed. The agreement of tenancy has been denied by the appellant and no attempt has been made to prove it. The notice which was sent to the appellant was not delivered to him. Therefore, there is hardly any reliable evidence on record to establish that the appellant is the tenant and the respondent is the landlady.

6. The appellant in his written statement stated to have annexed photo copy of receipt issued by Nasim Begum whom he claims to be his landlady and owner of the premises. In cross‑examination he admitted that he can produce the original of that receipt but a perusal of the record shows that the photo copy of the receipt alleged to have been filed with the written statement is not in the file. The learned counsel for the appellant states that it has been removed surreptitiously. The learned Controller was impressed by the fact that the appellant has not produced Nasim Begum, but in evidence he has stated that he has filed a suit against Naseem Begum and obtained a stay against her. Perhaps this was suggestive of the fact that in those circumstances be cannot produce Nasim Begum. However no proper and cogent evidence has been produced to show that he has been paying rent to Mst. Naseem Begum. In fact in the state of A evidence produced by the parties no definite finding can be given conclusively. In these circumstances I set aside the order of the Controller, remand the case to the Controller who after recording fresh evidence of the parties shall decide the case. H.B.T./A‑507/K????????????????????????????????????????????????????????????????????????????????? Case remanded.