1996 PLP 797 (MLD)

Appellants in their respective written statements denied relationship of landlord and tenant and averred that both of them have purchased the premises from the respondent for the consideration of Rs.25,000 each and physical possession of the portions of the premises were handed over to them. It was further averred that the respondent by playing fraud and misrepresentation obtained lease of the premises from KMC in 1983 in his name, as such, appellants have jointly filed a civil suit against the respondent for declaration and cancellation of the lease deed before the Original Side of this Court being Suit No.347 of 1989 which is still pending. Respondent examined himself and Zahid Hussain in both the ejectment applications and Abdul Karim in MRC No.415 of 1990 and Abdul Latif in MRC No.416 of 1990. Both the appellants examined themselves as well as Syed Aner Ali Zaidi and Noor Muhammad. On the pleadings of the parties the learned Rent Controller set the following points for determination in both the applications:‑‑‑ (1) Whether there exists relationship of landlord and tenant between the applicant and opponent? . (2) Whether the opponent has committed default? (3) What should the order be? The finding of the Rent Controller on points l and 2 is in affirmative, as such, appellants were ordered to hand over vacant possession of their respective premises to the respondent within a period of one month. Heard the learned counsel for the appellants as well as counsel for respondent. From the pleadings as well as evidence it is clear that the premises was in possession of the respondent who transferred its possession to the appellants in the year 1970 which according to the respondent is, as tenants and as per appellants as a purchaser. Relationship of landlord and tenant is denied by the appellants, as such, burden is on the respondent/landlord to prove the tenancy. The agreement pertains to year 1970, as such, provisions of section 5 of the Sindh Rented Premises Ordinance do not apply to this agreement. In case of denial by the executing party the party relying upon it must prove its execution in accordance with the mode of proof laid down in Articles 73 and 79 of Qanun e‑Shahadat. Execution can be proved by a person who signed or wrote the document or a person in whose presence document was signed or written. In the instant case both the witnesses signatory to the agreement have been examined and they deposed that they have signed the tenancy agreement. Hence, by doing this the respondent has proved the execution of the tenancy agreement. Mere denial by the appellant regarding execution of this tenancy agreement cannot be relied upon unless he had some convincing evidence in contrary and had examined the handwriting expert to disprove his signature, which he did not. Whether the respondent is legal owner or not at the time of tenancy agreement is not material as the definition of "landlord" given in section 2(f) of Sindh Rented Premises Ordinance is as under:‑‑‑ "(f) "landlord" means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises." Appellants in their respective written statements and evidence led by them admitted that originally the premises was in possession of the respondent from whom he purchased the same for a valuable consideration. Appellants also admitted that they have not paid rent to respondent after 1970. For declaration of ownership the appellants have jointly filed a suit which is pending as such it cannot be presumed at this stage that they are the owners. In my opinion the respondent has sufficiently discharged his onus for proving that he is landlord of the premises. Coming to the conclusion that the relationship of landlord and tenant did exist between the parties the appellants were bound to pay rent to respondent which both of them have categorically denied to have paid rent to the respondent right from the inception of tenancy, as such, default is admitted by the appellants themselves. The other contention of the learned counsel for the appellants is that the premises is situated in Katchi Abadi and the allotment in Katchi Abadi ought to have been issued to the persons who were in possession at the relevant time. As the survey was carried out in 1983 when the appellants were in possession of the demised premises, grant of lease to the respondent by K.M.C. is by means of fraud and misrepresentation for which they have jointly filed a civil suit in High Court which is still pending, and the decision on the instant appeals be stayed till the final outcome of the suit. Mere pendency of a civil suit regarding ownership of the premises will not automatically stay the proceeding of rent case or rent appeal. If any party want stay of the rent proceedings they can apply to the Court where the suit regarding ownership of the property is pending for such a stay. Learned counsel for the appellants has referred to the case of Alimuddin and another v. Muhammad Aslam and 2 others 1991 SCMR 850 where the eviction was ordered but the execution has been stayed for giving opportunity to the appellants to obtain interim order or relief otherwise from the competent Civil Court, according to dictates of justice, as the case would be subject to final verdict in the general jurisdiction of the Civil Court. In view of the above discussion I uphold the orders of the trial Court and dismiss both the appeals. But keeping in view the dictum laid down in case of Alimuddin and others v. Muhammad Aslam and 2 others 1991 SCMR

850. I allow four months' time to the appellants for vacating the premises in dispute so as to enable them to seek interim relief, if any, against their eviction from she Court where the very suit is still pending. H.B.T./M‑1/K Appeals dismissed.