1994 PLP 1485 (SCMR)

SALEEM AKHTAR, J.‑‑‑This appeal with the leave of the Court challenges the judgment of a learned Single Judge of the High Court of Sindh passed in FRA No. 212 of 1990 filed by the respondent against the order of the learned Controller dated 5‑4‑1990 dismissing respondent's ejectment application which was filed on the ground of default in payment of rent and subletting, allowing the same.

2. The brief facts are that the respondent filed Rent Case No.608 of 1989 for ejectment in respect of the suit shop against the appellants on the above grounds. It seems that upon service of notice the appellants appeared through an Advocate who filed an undertaking on 4‑12‑1989 to file his power and written statement. However, it seems that no one appeared thereafter and consequently an ex parte proof order was passed on 21‑1‑1990. The respondent filed an affidavit in ex parte proof alongwith a conveyance deed. The learned Rent Controller by his aforesaid order held that the respondent failed to establish relationship of landlord and tenant. As a result of the above finding the above rent case was dismissed. Thereupon, the respondent filed FRA. Upon service of the notice the appellants engaged Mr. Shamim Ahmed, Advocate. The above FRA came up for hearing when none appeared for the appellants. The learned Judge in Chambers after hearing the respondent's counsel, allowed the above appeal and granted ejectment holding that there existed relationship of landlord and tenant between the parties. It may be pointed out that the learned Controller had taken the view as there was no written agreement of tenancy as contemplated by section 5 of the Sindh Rented Premises Ordinance, 1979, the relationship of landlord and tenant did not exist. However, the learned Judge in Chambers took a contrary view holding that section 5 is directory and not mandatory in nature as no penalty for its violation has been provided. On 16‑3‑1993 the appellants filed petition for leave to appeal out of which the present appeal has arisen, but as no Judge of this Court was available at Karachi, the office forwarded the file to Islamabad for passing an interlocutory order upon the application which was granted on 18‑5‑1993 in Chambers in absence of the appellants' counsel. However, it seems that on 17‑5‑1993 the respondent got the appellants evicted from the disputed shop, with police aid granted by the Controller.

3. Leave was granted to consider the questions whether the learned Judge in Chamber was justified in reversing the finding of the learned Controller on the question of relationship of landlord and tenant and whether the learned Controller was justified in issuing a writ of possession with police aid. The question of limitation was also left open as the petition was barred by three days.

4. Te first question is about the existence of relationship of landlord and tenant. The appellants had not filed written statement and at no stage, even in the petition for leave to appeal filed in this Court, they have denied the tenancy. They admit that the respondent is the owner of the disputed shop. The respondent had filed ex parte affidavit of proof but the learned Controller is dismissed the ejectment application as there was no agreement of tenancy in terms of section

5. As the affidavit of the respondent was not rebutted it ought to have been accepted unless there was valid reason for rejecting it. Mere non?production of agreement in terms of section 5 cannot be made a ground to dismiss the ejectment application as a landlord/tenant can prove existence of? such relationship in other manner as provided by law.

8. So far the second point on which leave was granted, suffice to say that we have examined the record, but no illegality was found in granting writ of ejectment with police aid. The appeal is dismissed with no order as to costs. M.BA./F‑313/S?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.