1986 PLP 332 (MLD)

(d) Sind Rented Premises Ordinance (XVII of 1979)‑ ‑‑‑S.15‑‑Ejectment‑-‑Default in payment of rent‑‑Tenant denying relationship of landlord and tenant but same standing proved by evidence on record‑‑Default of tenant in payment of rent, held, was established and no further inquiry with regard thereto required‑‑Application d‑‑Application for ejectment allowed. P L D 1979 Kar. 59 and P L D 1974 Lah. 489 rel. Abdul Karim Siddiqui for Appellant. Mehrab Gul for Respondent. Dates of hearing: 10th and 12th December, 1985. The appellant filed an application for ejectment of the respondent from Flat No. C‑43/F Al‑Azam Square Karachi which was rented out to her at a rate of Rs.250 p.m. in the year 1976. It was alleged that the rent was paid upto 10th of May, 1977 but thereafter upto 9‑2‑1978 no rent has been paid. It was further alleged that the respondent has without the consent of the landlord sublet the premises to one Moin. According to the written statement the appellant has sold the flat to the respondent, physical possession was delivered to the respondent on payment of Rs.10,000 and balance was to be paid at the time of registration of the sale‑deed but the appellant has failed to honour the agreement. The learned Controller framed the preliminary issue as follows: ‑‑ 'Whether there exists any relationship of tenant and landlord between the parties. By the impugned order the Controller has held that the respondent is not the tenant. It is pertinent to mention here that after filing written statement the respondent did not appear, with the result that the evidence of the appellant was recorded in her absence and subsequent application made to re‑open the side was dismissed. During the pendency of the case the intervenor filed an application under Order 1, Rule 10, C .P. C. The learned Controller by a detailed order dated 17‑3‑1982 dismissed this application. The intervenor did not challenge this order but has filed an application in this appeal to be joined as a respondent. Her allegation is that she is the tenant of the premises, the tenancy agreement was oral and that the appellant has never issued receipt for the rent paid to her. From the affidavit filed by the intervenor it seems that the respondent is the mother‑in‑law of the son of the intervenor. The name of the son admittedly is Moin. This fact is also admitted by the learned counsel for the intervenor. The intervenor has not produced an iota of evidence to show that she is the tenant of the premises. She claims tenancy from the year 1977 but has not produced any document to prove this fact. Mr.Mehrab Gul, the learned counsel for the intervenor has contended that if opportunity is given she would be in a position to produce witnesses to establish this fact. The intervenor should have produced with the application some material on record to prove the tenancy. Even affidavit of such persons who were supporting her case could have been filed. No such step has been taken. In these circumstances prima facie I feel that the intervenor has failed to establish that she is the tenant of the premises in dispute Tenancy is a status which carries several benefits and obligations under, law. Such status in respect of a property cannot be established by mere vague allegations and simple statement that a person is tenant of a premises. Establishment of such a fact requires clear and cogent evidence and when an allegation is made, as in the present case, even before proceeding with the evidence, at the initial stage some material should be produced to make out a prima facie case of tenancy. I am not inclined to accept the application filed by the intervenor. It is, therefore, rejected. The next question for consideration is whether the appellant is the landlord and the respondent is the tenant. After filing the written statement and also re‑appearing on subsequent stage the respondent has chosen to remain absent. The appellant has produced evidence to show that she is the owner of the premises. In this regard‑several documentary evidence has been produced on record which has remained unrebutted. The appellant is, therefore, the owner of the disputed? premises. The plea of the respondent also supports this contention when she has alleged that she has purchased this property from the appellant. Even in the affidavit of the intervenor this fact has not been disputed, because she claims to be the tenant of the appellant. Therefore, from the evidence, the statement and affidavit brought on record, the claim of the appellant to be the owner of the disputed flat is established. The only question left for consideration is whether this flat was rented out to the respondent. The appellant has examined herself and her son‑in‑law who have deposed that the premises was let out to the respondent. Rent receipts have been produced to show that the respondent is the tenant. There are six counter‑foils of the receipts produced by the appellant out of which three have been signed by Sufi Hassan, the son‑in‑law of the appellant and remaining three have been signed by the daughter of the appellant. All the six counter‑foils bear the signature of Adil Ali who admittedly is the son of the respondent. The appellant has also produced a letter Exh."7 written by Adil Ali from which it can safely be deduced that the respondent is the tenant of the disputed premises. The learned Controller has based the impugned order on. a statement made by Hamid Ali the attorney of the appellant in his affidavit‑in‑ex parte proof dated 13‑2‑1979. He had stated that the flat was rented out in the year 1972 and since then the opponent has not paid rent regularly who is a habitual defaulter. However, in para. 5 of this affidavit it was stated that 'the rent was paid by the respondent on 30‑12‑1977 being arrears of two months from 10‑3‑1977 to 9‑5‑1977 leaving behind the arrears of seven months; thereafter, Rs.500 was also paid. Finally it was stated in para. 7 that the opponent is in arrears of rent of Rs.5,000 being the rent for 19 months from 10‑7‑1977 to 9‑2‑1979. The respondent filed an application for setting aside the order declaring him ex parte which was granted and the appellant's witness were examined. But as the respondent did not appear their statements remained unchallenged. In these circumstances reliance could not have been placed entirely on the affidavit of proof filed earlier particularly when fresh evidence was recorded by the Controller. Taking the entire material on record and considering the documentary and oral evidence produced by the appellant it can safely be concluded that the date mentioned in the affidavit of ex parte proof was a result of mistake. The evidence produced on record sufficiently establishes that the tenancy commenced from 1976. This fact was not so important on the basis of which the entire evidence should have been discarded by the learned Controller. As discussed above the appellant has sufficient and ample evidence to prove that the respondent is a tenant of the appellant. The finding of the learned Controller is, therefore set aside. Mr. M. Abdul Karim Siddiqui the learned counsel has referred to P L D 1979 Kar. 59 and P L D 1974 Lah. 489 where it was held that if relationship of landlord and tenant is denied and it is held that it exists and the ejectment sought on ground of default, then no further enquiry is to be made because on tenants own showing he has not paid the rent. This is the situation in the present case. I therefore, allow the ejectment application direct the respondent to hand over vacant possession of the premises to the appellant within two months. M. Y. H.????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.