1995 PLP 1376 (MLD)

"SALEEM AKHTAR. J.‑‑‑Both these appeals arise from the order of Controller dated 28‑3‑1988 where the application under section 16(2) of Sindh Rented Premises Ordinance filed by Mst. Rehmat Bibi and others against Muhammad Rashid and Khursheed Begum was partly allowed. Rashid was ordered to be ejected as default has been committed in depositing the rent but so far Mst. Khurshid Begum is concerned it was ordered as under Rent Case No. 264 of 1986, the Controller had held that no relationship of landlord and tenant existed between her and the landlady, she should file a civil suit for possession against Mst. Khurshid Begum in Civil Court. Mr. Nooruddin Surki the learned counsel for the appellant has contended that the impugned order is not clear as Rashid cannot hand over possession of the demised premises which is in possession of Mst. Khurshid Begum. He has made a statement that physical possession is with Mst. Khurshid Begum. In these circumstances according to him the order cannot be executed. The order is not ambiguous so far Rashid is concerned. So far Mst. Khurshid Begum is concerned, the order has directed the landlady to file a civil suit. This can be done only if it is held that Mst. Khurshid Begum is not a sub‑tenant. If sub tenancy is unauthorised then the order of ejectment passed against the tenant can be executed against such sub‑tenant. Considering from this point of view, the order passed in respect of Mst. Khurshid Begum cannot be sustained. The order passed against Rashid and Mst. Khurshid Begum are so co‑related that both cannot stand independently. I, therefore, set aside the order, dated 28th March, 1988, remand the case to the learned Controller. He should determine whether Mst. Khurshid Begum is an unauthorised sub‑tenant, trespasser or claiming possession independently. After determining this issue proper order under section 16(2) may be passed within a period of 3 months." On 5‑1‑1987 affidavit‑in‑evidence of Muhammad Zaki and again on 28‑9‑1987 affidavits‑in‑evidence of Muhammad Zaki and other applicants were filed but they were not subjected to cross‑examination by the opponent party. On remand of the case, on 14‑9‑1989, the applicant's attorney Muhammad Zaki filed his another affidavit‑in‑evidence and the Rent Controller accepted without any order about the affidavits already filed in evidence by the applicants side. Anyhow, on 27‑9‑1989 he was cross‑examined by only opponent No. 2 and without mentioning as to whether chance was given to the opponent No. 1 or not. The opponent No. 2, Mst. Khurshid Choudhry filed, her affidavit‑in‑evidence on 15‑10‑1989 and she was cross‑examined only by the applicants and not by the opponent No. 1 and the record is silent as to whether any chance was even given to him. One Sohail Rashid son of late Muhammad Rashid, the opponent No. 1 filed his affidavit‑in‑evidence, who never produced himself in Court for his cross‑examination. After hearing the parties the learned Rent Controller passed fresh order dated 9‑3‑1993 under section 16(2) of S.R.P. Ordinance, 1979, holding that the opponent No. 2 (Mst. Khurshid Choudhry) is an unauthorised sub tenant and ordered both the opponents to vacate the case premises within 30 days. It is this order which is challenged by only Mst. Khurshid Choudhry in the instant appeal. I have heard the learned Advocates for the parties and with their assistance perused and examined the record. At the very outset, I have no hesitation to say that the conduct of the applicants and the opponent No. l in this case is very doubtful and does not inspire confidence in them. In Rent Case No. 264 of 1980, which was filed only against Mst. Khurshid Choudhry, the opponent No. 2 in the instant case, the applicants asserted that she is their tenant and that she paid rent to them up to October, 1984, but she denied the payment of rent and stated that she neither paid any rent to diem nor any rent was ever demanded from her by the applicants nor any intimation was given to her about the sale and purchase of the case premises by the applicants. She also stated that she is in possession of the case premises in her own legal rights and in the end stated that there exists no relationship of landlord and tenant between her and the applicants. The then Rent Controller rightly dismissed the said Rent Case vide order dated 7‑10‑1986, holding that there exists no relationship of the landlord and tenant between the parties and dealt with the same point its under:‑‑‑ "POINT NO. (1): The applicant Muhammad Zaki who is Rent Collector and attorney of the applicants has said that the applicants were owners of Property No. SR‑8‑12/1 Hassan Ali Effandi Road, Karachi and has produced the sale‑deed. He has said that late Choudhry Siddique was tenant in respect of Shop No. 2, and godown in the aforesaid property at Rs. 250 per month excluding electric and gas charges. He has produced the copy of P.T.I. to show that late Mr. Siddique Choudhry was his tenant. The opponent Mst. Khursheed Choudhry has said that she was widow of Siddique Choudhry who was in occupation of the same after his death for earning purposes. She has said that her husband never paid any rent to the applicant nor the rent was ever demanded from him nor from her and not, intimation for the purchase/ transfer of the premises in question was sent by the applicant to her late husband or to her. She further said that after she took over the work nobody came to demand rent from her nor she was intimated by the applicant that they had purchased the same and, therefore, there was no relationship of landlord and tenant between the parties. The applicant's witness Muhammad Zaki has boldly admitted that late Muhammad Siddique Choudhry was occupant of the disputed premises since last 7/8 years. He has said that his tenant was Royal Block and previously Muhammad Rashid was its proprietor and after two years Muhammad Siddiq purchased the same and became its tenants. He has further said that he did not make Choudhry as his tenant but his tenant was Royal Block. He has admitted that he did not demand rent in writing from Choudhry Siddique and further admitted that he did not issue any notice to Muhammad Siddiq informing him that he was owner of the premises. He further admitted that he did not ask the opponent to pay rent and that he did not give any notice to the opponent in that behalf showing that he was owner of the premises. He has further admitted that he did not file any ejectment case against M/s. Royal Block, during the lifetime of Muhammad Siddiq. He has denied that their case was not filed against Royal Block. He has admitted that he had no receipt bearing the signature of late Muhammad Siddiq. The admission of the applicant's witness that he failed to issue any notice of intimation of transfer/purchase of the premises, demanding rent after there and in that case the opponent's version is duly supported that the opponent had no intimation of the transfer/purchase. It is further admitted that the actual tenant was M/s. Royal Block and it was not the opponent against whom any tenancy may be existing. Therefore, the case has been riled against the wrong person. No intimation notice under section 13(A) of the Ordinance has been issued and, therefore, that opponent's version that there was no relationship of landlord and tenant between the parties existing appears to be correct in view of the settled position of law. Accordingly, I hold that there does not exist any relationship of landlord and tenant between the parties. The point is answered accordingly." It is pertinent to note that against the abovesaid findings of the learned Rent Controller in Rent Case No. 264 of 1986, no appeal was filed by the aggrieved party i.e. the respondents Nos.l to 5 in the instant appeal as such it attained the finality. It has come on record, though disputed by the appellant named above, that the intimation notice regarding the transfer/purchase of the case premises by the respondents Nos. 1 to 5 was given to the respondent No. 6 (Muhammad Rashid) for the first time vide notice dated 20‑10‑1986 while the said Muhammad Rashid sold the business concern to appellant's husband on 1‑11‑1975 i.e. much prior to the intimation notice, if any, given by the respondents Nos. 1 to 5, as such it shall not amount subletting as the respondent No. 6 in his earlier written statement denied to be the tenant in the ease premises and also denied to have ever paid the rent to the respondents Nos. 1 to

5. The case premises are adjacent to the premises in occupation of the respondents Nos. 1 to 5 and they must be seeing functioning, running and working of the concerned persons in the same but the pleadings of the respondents Nos. 1 to 5 in the abovesaid two rent Cases viz. 264/86 only against Mst. Khurshid Choudhry and 1470/86, against Muhammad Rashid and Mst. Khurshid Choudhry are totally inconsistent, which are never appreciated in any judicial system. The opponent No. 1 (Muhammad Rashid) though having no concern with the case premises, after he had sold it to opponent No. 2's husband in 1975, in the first instance he came in Court with the real and actual facts but his subsequent conduct shows that he was probably won over by the applicants/respondents Nos.l to 5, for the reasons best known to them. In order to prove the tenancy of Muhammad Rashid, the applicants produced counterfoils of rent receipts issued in the name of Muhammad Rashid. The first receipt is dated 3‑8‑1975 for July, 1975 and the last receipt is dated 1‑1‑1985 for the month of December, 1984. The appellant pleaded in his case that opponent No. 1 (Muhammad Rashid) paid rent up to September, 1984 contrary to his own receipts. If the said receipts were in existence in 1986 when Rent Case No. 264 of 1986 was filed against Mst. Khurshid only, then how the appellants stated that Mst. Khurshid paid rent up to September, 1984. In my opinion, at that time the said receipts were not in existence, as the opponent No. 1 (Muhammad Rashid) denied the payment of any rent to appellants but when the things were settled with him, the said receipts appear to have been subsequently prepared to establish the changed circumstances. In view of the above, position, the so‑called rent receipts loses their authenticity and as such merit no consideration. Apart from the said receipts, there is no other documentary evidence to show that Muhammad Rashid was tenant of applicants, except his written statement but it also cannot take place of evidence. In any case, keeping in view the findings of the Rent Controller in Rent Case No. 264 of 1986, and the pleadings of respondents Nos. 1 to 5 in that case and the earlier pleadings of the respondent No. 6 (Muhammad Rashid); and the plea taken by the appellant in her preliminary objections dated 4‑12‑1986 that opponent No. 1 (Muhammad Rashid) has been unnecessarily joined the party, I am of the considered opinion that opponent No. 1 (Muhammad Rashid) was not the proper party in the ejectment proceedings but it appears that he had been proposely brought in the Court to get support by the applicant/respondents Nos. 1 to 5 as such the ejectment application ought to have been dismissed against him and no order under section 16(1) of Sindh Rented Premises Ordinance, 1979 could have been legally passed against him, hence I, dismiss the ejectment case against the opponent No. 1 (Muhammad Rashid) and also set aside the order dated 23‑8‑1987, passed against him under section 16(1) of the Sindh Rented Premises Ordinance, 1979. As regards the present appellant, it is an admitted position that the finding of Rent Controller in Rent Case No. 264/86 attained finality, in which it was held that the tenant in the case premises was M/s. Royal Block and that no notice intimating the transfer/purchase of the case premises was given by the applicants/respondents Nos.l to 5 to the appellant named above who claims to have been running the business in the case premises under the name and style M/s. Royal Block, and that no case is filed against the admitted tenant ROYAL BLOCK, as such the ejectment case against the present appellant was also not maintainable in law. Hence it also merits dismissal. Under the above circumstances, I have no other option, but to set aside the impugned order dated 9‑3‑1993 and allowing this appeal, dismiss the Rent Case No. 1470 of 1986 with cost, throughout, as the applicant brought a false case against the appellant knowingly. H.B.T./378/K Appeal allowed.