1989 PLP 3607 (MLD)

Ashiq Ali Abdullah for Appellant. Abdul Rehman Memon for Respondents. Date of hearing: 20th January, 1989. The appellant has tiled an application under section 11(2) of the Sind Rented Premises Ordinance, 1979, for the restoration of his electricity and he has alleged that he was inducted into the premises as a tenant by Haji Lateef, the landlord, who has since died, and the respondents who have inherited the property of Haji Lateef have disconnected his electric connection on or about 27th December, 1983. The petition was filed on 7-2-1984. In their statements the respondents have denied that the appellant was their tenant. According to them the original tenant was Haji Hashim from whom the 'appellant had unlawfully obtained the possession of the premises. It was also disclosed in the written statement (which was filed on 2-8-1985) that the respondents had filed a civil suit against the appellant which was pending. Learned Rent Controller proceeded to record the evidence of the parties. The affidavit of the appellant had been filed and he has been cross-examined. On behalf of the respondents, respondent No. 1 riled his affidavit but so far he has not been cross-examined. It appears that the case was at the stage of his cross-examination when the respondent moved an application before the learned Rent Controller for the dismissal of the rent petition under section 11(2) of the Ordinance, on the ground that the Civil Court, while deciding the injunction application under Order 39, rules 1 and 2, C.P.C. in the Civil Suit filed by the respondent against the appellant, had held that there was no relationship of landlord and tenant between appellant and the respondents. The respondents, therefore, claimed that the application under section 11(2) of the Ordinance was no more maintainable. This application was accepted by the learned trial Court vide impugned order dated 12-8-1986. It is held in this order that since a competent Civil Court has given a finding that the appellant was not the tenant of the respondents and since that order has not been challenged by the appellant before any Superior Court, the application under section 11(2) of the Ordinance was not maintainable. The appellant has come in appeal against this order. Learned counsel of the parties have been heard and the record perused.

2. As a matter of fact, the order dated 6-4-1986 passed by the Civil Court on application under Order 39 rules 1 and 2 C.P.C. (in Suit No. 4550/83) has no relevancy whatsoever so far as application under section 11(2) of the Ordinance was concerned. In Suit No. 4550/83 respondent No. 1 Muhammad Suleman had claimed that appellant Haji Saleh Mohammad was not his tenant and he had sought a permanent injunction against him that he may be restrained from making any addition or alteration in the premises. That suit is still pending and it has not yet been determined as to whether the appellant is or is not the tenant of respondent No.

1. However while deciding application under Order 39 rules 1 and 2 C.P.C., it was observed that the plaintiff (i.e. respondent No. 1 Muhammad Suleman) had a prima facie case that the defendant No. 2 (the present appellant) was not his tenant. This prima facie finding was good only for granting temporary injunction against Haji Saleh Muhammad but for no other purpose. The learned Civil Judge had himself made the position quite clear when he further observed that "even if he is a tenant law does not provide any option to a tenant to do any sort of work in the rented premises without seeking permission from the landlord or a competent order of the Rent Controller". This clearly shows that the temporary injunction was granted to respondent No. 1 without finally determining as to whether the appellant was a tenant to the premises or not. The learned Rent Controller has made a serious misstatement of fact when he observed in the impugned order that a competent Civil Court had given a finding and had held that the appellant was not a tenant of respondent No. l because no Court has made any such finding. 1t was argued by the learned counsel for the respondent that the appellant (who was respondent No. 1 in the civil suit) should have appealed against the order passed on application under Order 39 rules 1 and 2 C.P.C., and since he did not appeal against this order he is bound by it and can no more claim that he is tenant of respondent No.

1. There is no fore in this argument. Firstly, it has not been held in the order passed under Order rules 1 and 2 C.P.C. that the appellant was or was not the tenant of respondent No.

1. Secondly, there was no necessity for the appellant to file appeal against the said order if he did not feel aggrieved from it. The order only retrains the appellant from making any addition or alteration in the premises. By not filing appeal he binds himself accordingly and stands restrained from making any addition or alteration in the premises. That order does not restrain the appellant from pursuing his application under Order 11(2) of the Ordinance.

3. As a result, the appeal is accepted, the impugned order dated 16-4-1986 is set aside and the case is remanded back to the learned 1st Senior Civil Judge and Rent Controller, Karachi (South), for proceeding further in the matter in accordance with law. Parties are left to bear their own costs. H.B.T./S-380/K Appeal accepted.