1984 PLP 1035 (CLC)

‑‑ S. 13‑Sind Rented Premises Ordinance (VII of 1979), S. 21‑"' Ejectment‑Tenant denying relationship of landlord and tenant Courts below failing to consider important documents with regard to identity of house which could have established such relation ship‑Documentary evidence produced by landlord before Courts below sufficient to establish status of landlord‑Default of tenant to pay rent having been established on his denial of such relation ship‑Remand of case to Rent Controller futile‑Ejectment of tenant ordered in circumstances. Nisar Ahmad v. Nazar Muhammad P L D 1974 Lah. 489 rel. This is second appeal by the appellant from the judgment of 1Ind Additional District Judge, Karachi in Rent Appeal No. 547 of 1977, whereby be had dismissed the appeal of the appellant as well as the ejectment application filed by the Appellant before Had Rent Controller Karachi.

2. The appellant claims to be owner of a building bearing No. 13/5 situated in Behar Colony Karachi, which was given on rent to the res pondent @ Rs. 60 per month. It is alleged by the appellant that she received rent upto November, 1973 and thereafter no rent was paid. She, therefore, filed ejectment application before the IInd Rent Controller, Karachi which was registered as Rent he was residing in premises No. 13/5 as claimed by the appellant. On the contrary he stated that the number of the house in which be was residing was `13/5‑A'. He, there fore, denied the relationship of landlord and tenant between him and the appellant. He also denied that he paid rent to the appellant upto November, 1973.

3. On the above pleadings a preliminary issue was framed by the learned Rent Controller to the following effect :‑ " Whether there exist relationship of landlord and tenant between the applicant (appellant) and the opponent (respondent) ?" In support of this issue only the appellant examined herself as her own witness. She deposed that `13/5' is the number of the house which she had rented out to the respondent @ Rs. 60 per month in the year 1970 and that she had received rent from him upto November, 1973. She further deposed that sometimes the respondent paid rent and some times his wife on receipts and that they used to sign the counterfoil of the receipts. She has also filed 10 counterfoils. She has also one notice which was given by the respondent to the appellant during the pendency of the ejectment proceedings before the Rent Controller. The appellant has produced this notice in original which is, dated 6th August, 1974. In this notice the respondent admits that he is residing in Premises No. 13/5 for which the appellant had filed an ejectment case. The respondent further warns the appellant that she should not try to disturb possession of the respondent over the said house because he is owner of the same.

4. The learned Civil Judge did not consider this notice nor the various counterfoils and held that the relationship of landlord and tenant was not established. This finding was given in spite of the fact that the respondent bad not produced any evidence in rebuttal. The respondent himself even did not appear as a witness. The learned Rent Controller on the above finding dismissed the ejectment application.

5. The appellant has filed Rent Appeal No. 547 of 1977 which was beard by second Additional District Judge, Karachi. The learned Addi tional District Judge also upheld the view of the Rent Controller and dismissed the appeal.

6. In this second appeal Mr. S. A. Jalib learned counsel for the appellant has argued that the judgments of the two Courts below are based on misreading of evidence as well as non‑consideration of material evidence. He has referred to 10 counterfoils of the receipts, out of which one bear the signature of the respondent and ,the remaining bear signatures of the wife of the respondent. The Rent Controller and the first appellate Court have referred to only two counterfoils and not the rest. Moreover, they did not take into account the fact that the signature of the respondent on one of the counter‑foils, which is Exh. C‑1/A, stands unrebutted for the reasons that the respondent failed to appear as a witness to rebut this document.

7. The other important document, which was not considered by the two Courts below, is the notice (Exh. 1/C) produced by the appellant in original. This notice was given by the respondent through his Advocate Mr. S. Inayat Ali, in which she admits that the number of the disputed premises is `13/5', whereas in his written statement be says that the number of the house in which be is residing is '13/5‑A'. The above notice completely contradicts the plea of the respondent as set up in his written statement about the identity of the house which was rented out by the appellant to him. The two Courts below have failed to consider this important document which leaves no doubt as to the identity of the house which was in possession of the respondent. The preliminary issue was, therefore, wrongly decided by the Rent Controller in favour of the respondent and first appellate Court also erred in confirming the finding of the Rent Controller on this issue. The documentary evidence produced by the appellant was sufficient to establish her status as landlord.

8. The question now is as to what should be the appropriate order in case the finding is that the appellant is the landlord of the respondent ? As the respondent has denied the appellant's status as landlord, hence it is established that he never paid rent to the appellant. It would, therefore, be futile to remand the case to the Rent Controller for further trial after decision of the preliminary issue in favour of the appellant. In such cases the only order that can be passed is one of ejectment of the tenant, who has failed to substantiate his plea of absence of relationship of landlord and tenant between him and the landlord. In support of this view reference may be made to the case of Nisar Ahmed v. Nazar Muhammad (P L D 1974 Lab. 489) in which it was observed as under :‑ " A person who does not acknowledge the relationship of landlord and tenant between the parties has no right to plead after finding in this regard against him for any further inquiry, under the said provision. He is estopped by his conduct to plead that since he has been found to be a tenant, therefore, he should be allowed to prove the payment of rent. Passing of any order under section 13 (6) of Ordinance VI of 1959 will be a futile exercise of the jurisdiction vesting in the Rent Controller. It may further prolong the agony of unnecessary litigation but the ultimate result will be the ejectment of the tenant for non‑payment of the due rent." The result, therefore, is that the appeal succeeds. The orders of the Rent Controller and the Second Additional District Judge are set aside, ejectment application of the appellant is allowed and the respondent is directed to vacate the premises and hand over its possession to the appellant forthwith. There will be no order as to costs. M. Y. H. ‑‑‑‑ Appeal accepted.