1989SCMR258 (PLP)

ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court dated 20‑3‑1988 dismissing an appeal filed by the petitioner. Facts of the case briefly narrated are as under: The first respondent who is the landlord of the premises in question applied to the Rent Controller in 1978 for eviction of the second respondent on the ground, inter alia, that he being the tenant of the demised premises was a defaulter in payment of rent. The second respondent contested the allegations in the written statement and pending disposal of the case, learned Rent Controller passed an order dated 19‑7‑1979 under section 16(1) of the Ordinance directing the second respondent to deposit Rs. 5,200 as arrears of rent from February, 1976 to June, 1979 at the rate of Rs. 100 per month by November, 1979 and also to deposit future rent at the same rate before 15th of each succeeding month. Since the second respondent failed to comply with this order, learned Rent Controller by order dated 18‑4‑1983 struck off respondent's defence and directed his eviction from the demised premises. An appeal filed by the second respondent against this order in Sind High Court was dismissed and subsequently writ of ejectment was issued against him. It was in these execution proceedings that petitioner herein made an application under section 22 of the Ordinance read with section 12(2) of the Code of Civil Procedure praying for recall of the order of eviction on the ground that he was really the tenant of the demised premises and the proceedings initiated by the first respondent were ab initio void and illegal as these had been initiated by the first respondent collusively with the second respondent. Learned Rent Controller after hearing the parties rejected the application by the order dated 29‑5‑1986 on the ground that "petitioner had not produced any evidence to prove that he was the tenant of the demised premises". This view was upheld by the learned Judge in the High Court who dismissed the appeal by the impugned judgment in these words:‑‑ "In the present case the learned Controller has considered the documentary evidence produced by the appellant. The claim that the appellant is a tenant has not been accepted. The appellant had produced an application for obtaining electricity connection allegedly approved by the respondent No. 1, the bills of the electricity company showing that electricity connection is in his name, the Nikahnama and identity card. These documents necessarily do not imply that the appellant is a tenant. They can only establish that the appellant was occupying the premises it dispute. The appellant had not produced a single rent receipt or am, affidavit of any independent person to show that he had been paying rent to respondent No.

1. The learned counsel argued that money orders were sent to the respondent No. 1 but they were refused. The receipts o money orders or their copies have not been produced with the memo appeal nor they were produced before the Controller. According to the learned counsel, these money order receipts that are lying in his file are dated 3‑1‑1986 and 12‑1‑1986. They can hardly substantiate his claim The rent proceedings have been pending from the year 1978 and it is a the execution stage that this application has been filed by the appellant without specifying how he came to know about the proceedings and who he was not aware of the ejectment proceedings for the last eight years The application seems to be collusive and is intended to defeat the ejectment order. The learned Rent Controller has rightly observed that there is no iota of evidence of any nature to prove that the appellant is tenant in respect of the premises." In support of the petition for leave to appeal Mr. S.M. Abbas learned counsel for the petitioner reiterated the same pleas that were urged before the High Court. But we find that these have been adequately dealt with by the learned Judge in the High Court and rejected on cogent and proper grounds. There is, therefore, no merit in this petition and it is dismissed.