1990 PLP 584 (CLC)

This First Rent Appeal is directed aginst the order dated 5‑1‑1987 passed by the learned Vilh Senior Civil Judge and Rent Controller Karachi, West, dismissing the ejectment application of the appellant. The brief facts giving rise to the present appeal are that the appellant filed ejectment application against the respondent inter alia stating therein that the respondent/opponent was it's tenant in shop No.14/3 at the monthly rent of Rs.81 by virtue of tenancy agreement dated 9‑7‑1981. That the opponent has failed to pay rent since January 1985. and other agreed charges and as such he was a defaulter. The opponent/respondent was served and he tiled his written statement in which the relationship of landlord and tenant was denied. It was further stated that she was the owner of the disputed premises and she has filed a suit before the High Court being Suit No.428 of 1985. The High Court has been pleased to order that status quo be maintained in the matter. That all other allegations were denied. It was further stated that alleged agreement of tenancy was a forged one of which no copy has been supplied to her. On 9th February, 1986 an application under Order VII, Rule 11, C.P.C. was filed on behalf of the respondent which was dismissed on 10‑5‑1986. On 4th August, 1986 another application under section 10, C.P.C. was filed requesting the Court for stay of proceedings. The learned Rent Controller after hearing the parties instead of staying the proceedings was pleased to dismiss the ejectment application on 5‑1‑1987. The present appeal is directed against the above order dismissing the ejectment application. I have heard Mr. K.B. Bhutto learned counsel appearing for the appellant, Mr. A.F.M. Mokaram learned counsel appearing for the respondent, and have gone through the R & P of the case. It was contended by Mr. K.B. Bhutto learned counsel appearing for the appellant, that the respondent had not produced any evidence, documentary or otherwise, before the Rent Controller to show that she was the owner of the premises in dispute and therefore the impugned order was illegal and without jurisdiction. It was further contended that merely because it was claimed by the respondent that he had purchased the property in dispute from the appellant and had filed a suit for Specific Performance of Contract could not confirm right or title on the respondent, and the ejectment application was still maintainable. In support of his contention he has rclied upon 1984 SCMR 7.11. Mr. A.F.M. Mokaram learned counsel appearing for the respondent has contended that he had moved an application before the learned Rent Controller for stay of proceedings on the ground that the suit for Specific Performance of Contract filed by the respondent was pending before the High Court. That if case proceeds there was likelihood of conflict of judicial decisions. However, in view of the decision/reported in 1983 S C M R page 100.1 and P L D 198.1 Karachi page 441, the learned Rent Controller had rightly dismissed the ejectment application. He has further contended that in view of the fact that the suit was pending before the High Court, the Rent Controller could not be allowed to proceed with the ejectment application being Court of inferior jurisdiction.

4. I have considered the contentions of the learned counsel. The R & P of the case does not show that the respondent had produced any document bcf4e the learned Rent Controller to prove his ownership except photo copy of order passed by the High Court on C.M.A. Nos.2095 and 2096 of 1985 in Suit No.428 of 1985 and copy of application under Order XXXIX, Rules 1 and 2 C.P.C. The learned Rent Controller had dismissed application under Order VII, Rule 11, C.P.C. filed by the respondent on 10‑5‑1986, the appellant nor the respondent A have filed the alleged agreements one regarding tenancy, the other for sale of demised premises, and therefore, the Rent Controller could not dismiss the ejectment application on being moved for stay of proceedings under section 10 of C.P. Code and the order passed by the Rent Controller on 5‑1‑1987 appears to be patently illegal on the face of it. Adverting to the decisions relied upon by the learned Rent Controller and Mr. A.F. Mokarim in the case of Naimuddin v. Ziauddin (PLD 1984 Kar. 441) wherein it was contended by the tenant appellant that there was a dispute as to the title of the landlords, the proper course for the learned Rent Controller would have been to dismiss the rent application or to have stayed the rent proceedings particularly, when the appellant had filed a suit for challenging the title of respondent, which is pending. In this connection reliance was placed on Rahmatullah v. Mohammad Ali and another (1983 SCMR 1066). However, after taking into consideration the facts and decision relied upon it was observed by Ajmal Mian, J. (Present Chief Justice) that: "The appellant has failed to bring on record sufficient material which could have created a reasonable doubt as to the title of the respondent as to warrant dismissal of the rent application or staying of the rent proceedings. It was further observed that mcrc filing of the Civil Suit by a tenant to challenge the title of his landlord will not divest the jurisdiction of a Rent Controller to proceed with a rent case or to decide the question of relationship in favour of the landlords. In my humble view the above decision does not help the respondent, on the contrary it goes against him inasmuch as the respondent has not produced any B document before the learned Rent Controller to show prima facie that he is owner of the demised premises. In the case of Rehmatullah v. Ali Mohammad {1983 S.C.M.R. 1064) it was observed that:‑‑ "What is permissible for Courts of general jurisdiction in the field of fairplay, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, in a given case even when the landlord has discharged the initial burden in a title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and leave the landlord to a remedy in a Civil Court, first and then against approach to the Controller. Even when the tenant has not succeeded before the Controller to create the required `reasonable' doubt but has convinced him that his plea is not frivolous and/or vexatious, but due to constraint of summary speedy/procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same." With utmost respect, the above decision does not help the respondent inasmuch as the respondent had failed to produce any title document before the learned Rent Controller. Mr. K.B. Bhutto, learned counsel appearing for the appellant has relied upon the case of Allahyar and others v. Additional District Judge and others 1984 S C M R 741 wherein two respondents had purchased a property in dispute through registered deed. The petitioners were sitting tenants of the property in dispute and they were served with notice under section 13‑A of the Ordinance. In spite of service of notice they failed to pay rent and, therefore, ejectment application was filed by the respondent. The petitioners raised a plea that one of them had entered into an agreement to purchase the property from its previous owner through a receipt of payment of the earnest amount and, therefore, were entitled to retain the premises by virtue of section 53‑A of Transfer of Property Act. It was further stated that in view of the above circusmtances there was no relationship of landlord and tenant. However, the Rent Controller and the appellate Court decided the issue regarding relationship of landlord and tenant against the petitioner and the ejectment application was allowed. The petitioners filed Constitutional petition before the High Court but the same was dismissed. The petitioners filed Petition for Leave to Appeal before the Hon'ble Supreme Court wherein it was observed by their Lordships that: "It is true that neither the learned Rent Controller nor the learned Appellate Court finally decided the question of genuineness or otherwise of the receipt produced from the petitioner side. The question of fact in this behalf is still open. They have, however, rendered concurrent findings that even if the husband of the previous owner/landlord executed the receipt in token of an agreement to sell the property, there was no proof of the fact that he was authorised by his wife to do so. And because the purchase by the respondents through registered deed was not denied therefore the petitioners were not entitled to retain the possession in any other capacity than as tenants of the respondents the purchase by whom through registered deed is not being disputed even now. Reliance of the learned counsel on section 53‑A of the Transfer of Property Act in the circumstances of this case is of no help to the petitioners. According to him they have filed a suit for specific performance so as to establish the genuineness, validity and effect of the so called receipt. Till they are able to obtain a decree from the Civil Court, they could not have lawfully denied the relationship of landlord and tenant. In this context their failure/refusal to pay the rent for a long period cannot be treated as bona fide. In this behalf, it may further be mentioned that according to the learned counsel the suit was filed on 28‑11‑1981, nearly a year after the petitioners had become aware of the as through the registered decd in favour of the respondent. They have rightly been adjudged as tenants as also defaulters in payment of rent." The above decision relied upon by Mr. K.B. Bhutto learned counsel appearing for the appellant fully supports his contentions, as in the present case also the respondent had failed to produce any document before the learned Rent Controller to show that he was the owner, although his contention before the Rent Controller was that he was the owner of the premises in dispute. In view of the above discussion, the impugned order is set aside and the matter is remanded back to the learned Rent Controller to frame preliminary issue regarding relationship of landlord and tanant between the parties, and . thereafter to decide the same according to law after allowing the parties to lead necessary evidence keeping in view the status quo order passed in the Civil Suit by this Court. H.B.T./M‑895/K Appeal allowed/order accordingly.