2001 PLP 1799 (CLC)

(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑ ‑‑‑‑Ss. 2(f)(j) & 15(2)(ii)‑‑‑Relationship of landlord and tenant‑‑‑Default in. payment of rent‑‑‑Tenant had denied relationship of landlord and tenant between the parties‑‑‑Rent Controller formulated the issue in respect of existence of relationship of landlord and tenant between the parties and did not formulate issue with regard to default in payment of rent‑‑‑Rent Controller in his order had discussed matter with regard to default in payment of rent though no issue was framed in that respect‑‑‑Rent Controller despite framing issue with regard to relationship of landlord and tenant between the parties, did not discuss the said issue‑‑‑Rent Controller not only had not formulated issue of default in payment of rent, but also had not taken into consideration entire facts of the case while deciding issue of relationship of landlord and tenant between the parties‑‑‑Tenant had also not been given chance to cross‑examine landlord and his witnesses‑‑‑Judgment of Rent Controller was set aside and case was remanded to be decided afresh after giving full opportunity to the tenant for cross‑examination of landlord and his witnesses‑‑‑Rent Controller was also directed to give elaborate judgment on the issue of relationship between the parties and also to give detailed findings on the issue of default in payment of rent. (b) Administration of justice‑ ‑‑‑‑ Case has to be decided on merits and not on mere technicalities. At the request and consent of the learned counsel for both the parties, I am deciding this F. R. A. at the stage of Katcha‑Peshi. Present appellant has called in question the impugned judgment dated 21‑7‑2000 passed by VIth Rent Controller, Karachi, East in Rent Case No.850 of 1997 whereby the appellant has been directed to hand over the vacant possession of the demised premises within 90 days from the date of the impugned order, hence this appeal. Brief facts of the case are that the opponent/appellant had been lawful tenant of previous owner Mst. Zohra Jan on monthly rent of Rs.600 in respect of Shop No. 1 on ground floor. Khan Zaman Manzil, situated at Natha Khan Goth. Shah Faisal Colony No. 1, Karachi. The applicant/respondent purchased the building in question vide sale agreement, dated 9th June, 1997 from its previous owner and took over the constructive possession of the tenants of the ground floor consist upon two shops including the demised premises and one big room on the first floor which is in physical possession of the applicant/respondent. After purchasing the building in question, the applicant/respondent got transferred the same in the record of area Excise and Taxation Office for the purpose of payment of property tax. Soon after the purchase, the applicant/respondent served a notice, dated 10‑6‑1997 for change of owner upon the opponent/appellant and other tenant through registered A.D. asking to pay the rent in future to the applicant/respondent. The said notice was duly acknowledged/received by the opponent/appellant, but even after the receipt of the notice, the opponent/appellant did not pay/tender the due rent in the terms of the said notice to the applicant/respondent in respect of the demised premises. The applicant/respondent gave another notice, dated 18‑9‑1997 by registered post A.D. which was also acknowledged by the opponent/appellant but despite that the opponent/appellant did not pay the due rent to the applicant/respondent intentionally and thus, committed default in payment of rent. The opponent/appellant fled written statement in which he has denied the relationship of landlord and tenant, stating therein that the ownership rights have not been transferred to the applicant/respondent as yet and the applicant/respondent is not entitled to claim the rent. He has also denied that the opponent/appellant had been the tenant of Mst. Zohra Jan on monthly rent of Rs.600 in respect of the demised premises. It is stated that the opponent/appellant, was originally inducted as tenant in the demised premises by late Khan Zairian, the husband of Mst. Zohra Jan under the tenancy agreement, dated 21‑10‑1965 at the rate of Rs.50 per month and the opponent/appellant is running a tailoring shop under the name and style of "Rightway Tailors". In the month of April, 1973 Khan Zaman was killed, hereafter the opponent/appellant became the tenant of late Mir Zaman, the real brother of late Khan Zaman who enhanced the rent of the demised premises from time to time and accordingly the rent was paid to Mir Zaman after 31st May, 1985 to his son Ashiq Khan who never issued the rent receipt to the opponent. It is further stated that there was litigation between Mst. Zohra Jan and late Mir Zairian with regard to the properties left by late Khan Zaman and Mr, Abdul Aziz Shaikh, Advocate was appointed as Court receiver to whom the opponent/appellant had paid rent of 8 months i.e. June, 1989 to January, 1990. After receiving the legal notice from Mst. Zohra Jan, the opponent/appellant accepted her in respect of demised premises at monthly rent of Rs.250. The reply of the notice was given on 3rd March, 1990 but Mst. Zohra Jan refused to receive the rent for the month of February, 1990 at the rate of Rs.250 per month and demanded rent at the enhanced rate of Rs.600 per month. On refusal of rent by Mst. Zohra Jan, the rent for the period from 1‑2‑1990 to 30‑4‑1991 was deposited in M.R.C No. 157 of 1990 in Court at the rate of Rs.250 per month. Mst. Zohra Jan had filed Rent Case No.188 of 1990 under section 15 of the Sindh Rented Premises Ordinance, 1979 for the ejectment of the opponent/appellant on the ground of default in payment of rent and personal requirement which was dismissed vide order, dated 2‑8‑1993 against which F.R.A. No.388 of 1993 was filed in the Honourable High Court of Sindh which was also dismissed in default. After the dismissal of Rent Case No‑188 of 1990, she refused to accept the rent at the rate of Rs.250 per month, therefore, the opponent/appellant started depositing rent in Court in M.R.C. No.583 of 1993 from 1st August, 1993. In order to harass the opponent/appellant and to extort rent at Rs.600 per month. Mst. Zohra Jan on 13‑3‑1990 disconnected the electricity supply for which the opponent/appellant had filed Rent Case No. 189 of 1990 but it was dismissed. It is denied that Mst. Zohra Jan wanted to dispose off the demised premises to the opponent/appellant and he was given offer for its purchase. It is also denied that the building in question is under the process of its regularization. It is stated that the unauthorized possession of the occupants of plots in Natha Khan Goth where the building in question is situated have been regularised. It is further stated that the title and rights of Mst. Zohra Jan have not been transferred to the applicant/respondent and the agreement of sale and receipt of payment of Rs.4,00,000 are denied. It is further stated that since Mst. Zohra Jan could not succeed in Rent Case No.188 of 1990, therefore, the present case has been filed in the name of the applicant/respondent under a false and bogus sale agreement. The service of notice under section 18 of the Sindh Rented Premises Ordinance, 1979 has not been denied but the applicant/respondent cannot claim the rent of the demised premises from the opponent/appellant for the period prior to the change of the ownership and the opponent/appellant is paying rent to Mst. Zohra Jan by depositing the same .in Court. It is, however, denied that the opponent/appellant had not given reply of the notice, dated 7‑7‑1997 informing the applicant/respondent that he was not required to pay the rent to him being tenant of Zohra Jan at the rate of Rs.250 per month and the same is being deposited by the opponent/appellant in M.R.C. No.583 of 1990. It is further stated that the applicant/respondent malafidely refused to receive the said reply which was sent to him and finally the opponent/appellant in his written statement has prayed for dismissal of the rent application. The learned trial Court formulated the following points/issues for determination:‑‑ (1) Whether there exists relationship of landlord and tenant between the parties, if so what is its effect? (2) What should the order be? After hearing learned counsel for the parties and going through the affidavit‑in‑evidence and the material available on record viz. Newspaper cutting, sale agreement, postal receipt coupon, notice, the learned Rent Controller passed the judgment in terms as stated above. Mr. Mustufa Lakhani, Advocate for the appellant, has invited my attention on the affidavit‑in‑evidence filed by respondent/landlord namely Hakeem Muhammad Ghafoor and according to him the cross‑examination has not been done by the learned counsel for the appellant to this witness. He has further submitted that second affidavit has been filed by the respondent/landlord and there was no order to file such second affidavit alongwith two witnesses. According to Mr. Lakhani the relationship of landlord and tenant exists there. Finally he has argued that no chance has been given to hurt to cross‑examine the witnesses although he had made an application on 3‑11‑1999 stating therein that his client has gone to Mansehra and he seeks certain instructions from him to cross‑examine the respondent/landlord and his witnesses but the same was rejected by the learned Rent Controller. He has further argued that on 10‑12‑1999 he filed an application for recalling the witnesses but without success. Finally he had argued that he had been condemned unheard. He has very frankly suggested if the case is remanded to the trial Court affording the appellant/opponent a chance to cross‑examine the respondent/landlord and his witnesses. On the other hand Mr. Khurshid Ahmed Qureshi, learned counsel for the respondent, has opposed and has submitted that the delaying tactics have been adopted from the side of the appellant and there is no fault at all. I have considered the arguments rendered by the learned counsel for the parties. I have very carefully examined the judgment and have gone through other material available on record and affidavit‑in‑evidence. Admittedly the learned Rent Controller has formulated. two issues (1) Whether there exists relationship of landlord and tenant between the parties? and (2) What should the order be? The judgment reveals that the learned Rent Controller has discussed with regard to default in payment of rent with regard to the demised premises and yet no issue has been framed by the trial Court. Whether there is a default on the part of the appellant being tenant and from which date the default begins and such issue has not been framed. Admittedly affidavit‑in -evidence has been filed by the respondent/landlord and his witnesses and there is second affidavit‑in‑evidence filed by the appellant and the application on 3‑11‑1999 was moved by the learned counsel for the appellant stating therein that his client has gone to Mansehra and he seeks certain instructions to enable him to cross‑examine the landlord and his witnesses but the appellant/opponent has been deprived of the chance and has been condemned unheard. I am of the considered view that the learned Rent Controller has not formulated issue of default and has not taken into consideration entire facts of the case while deciding Issue No.

1. I am also of the considered view that the appellant has not been given chance to cross‑examine the respondents/landlord and his witnesses and there is also second affidavit and it has been settled by the superior Courts that the case is to be decided on merits and not on mere technicalities. Upshot of the above discussion is that the appellant has not been given chance to cross‑examine the landlord/respondent. The issue of relationship between tenant and landlord has not been discussed elaboratively by the leaned Rent Controller, no issue of default has been framed by the learned Rent Controller. Accordingly, set aside the impugned judgment, dated 21‑7‑2000 passed by the learned VI, Rent Controller, Karachi, East and remand the case to the trial Court with directions to give full opportunity to the appellant for cross‑examination. of the respondent/landlord and his witnesses and after giving full opportunities to the parties. The learned trial Court is further directed to give elaborate judgment on the issue of relationship between the parties and so also to give elaborate findings on the issue of default and decide the matter in accordance with law. The appellant/opponent is strictly directed‑not to indulge in delaying tactics and if once again he follows the same path, the trial Court would be at liberty to reject his defence. Parties are directed to appear before the trial Court on 18‑4‑2001. The office is directed to send R&P as soon as possible. In above terms the appeal is allowed. H.B.T./M‑154/K Order accordingly.