1987 PLP 659 (SCMR)

‑‑‑Art. 185(3), Sind Rented Premises Ordinance (XVII of 1979), S.13‑ Ejectment proceedings on ground of default of tenant in payment of rent‑‑Contention on behalf of petitioner‑landlady that Rent Controller could not refuse to determine preliminary issue regarding relationship of landlord and tenant, framed by him on ground that a suit was filed by tenant in which question of title in respect of disputed property was pending adjudication and that in any case plea taken by respondent at stage of his evidence was plpably frivolous and without foundation which ought not have been made the basis for rejecting application of petitioner‑‑Questions raised in argument, held, were substantial questions of law requiring consideration‑‑Leave ~o appeal granted. Province of Punjab v. Mufti Abdul Ghani P L D 1985 SC 1 cited. S. Riaz Ahmad, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing: 25th March, 1986. ZAFFAR HUSSAIN MIRZA, J.‑‑Petitioner Mst. Balo Begum claiming to be the transferee of the house in dispute from the Settlement Department instituted an ejectment application against he respondent on the ground that in spite of notice under section 30 of the Displaced Persons Act he had failed to pay or tender rent for the premises in his occupation. The respondent admitted that had not tendered rent to the petitioner but in his defence he pleaded that the petitioner had entered into sale agreement, dated 30th October, 1976 whereby she had renounced her claim to charge any rent from the respondent for the portion of the property in his occupation. At the trial the petitioner denied that she had agreed to sell the property to the petitioner and asserted that the agreement of sale is a forged document. In view of the pleadings of the parties the learned Rent Controller framed a preliminary issue on the question whether there was relationship of landlord and tenant between the parties. He decided the issue against the petitioner. The learned Rent Controller observed that Mst. Balo Begum daughter of Ch. Qadir Khan had appeared in evidence and produced the P.T.D. of the property in her favour. He also referred to the statement of the respondent in which his plea was that although the property was transferred to Mst. Balo Begum but the lady who had instituted the application for ejectment is not the real transferee of the property. According to him the applicant before Rent Controller was Balo Begum of Karachi whereas the real transferee was one Balo Begum from Sukkur. After referring to this extraordinary and surprising plea taken by the respondent in his evidence, the learned Rent Controller held that as the respondent had filed suit for specific performance of the alleged sale agreement against the transferee Mst. Balo Begum, the question of relationship of landlord and tenant could not be decided. Accordingly the petitioner's application was dismissed vide order, dated 27th March, 1985.

2. Being aggrieved the petitioner went before the Sind High Court in first appeal. A learned Single Judge of the High Court dismissed the appeal of the petitioner in limine on the ground that there was a dispute between the parties on the ownership as to which of the two Balo Begum was the real transferee, which according to the learned Judge can only be decided by the civil Court.

3. Learned counsel appearing for the petitioner in support of this petition for leave to appeal has referred us to a recent decision of this Court in Province of Punjab v. Mufti Abdul Ghani P L D 1985 S C 1 and has contended that the Rent Controller could not refuse to determine the preliminary issue framed by him and leave it undecided on the ground that a suit was filed by the tenant in which the question of title in respect of the disputed property was pending adjudication. Counsel submitted that in any case the plea taken by the respondent at the stage of his evidence was palpably frivolous and without foundation, which ought not to have been made the basis for rejecting the application of the petitioner. The questions raised in the argument are substantial questions of law which require consideration. Leave is accordingly granted. Security Rs.1,

000. S.Q./B‑2/S Leave granted.