2002 PLP 78 (CLC)

(5) Whether the opponent No.2 has committed wilful default in payment of rent? (6) Whether the applicant is entitled for any relief claimed in ejectment application? (7) Whether Mrs. Qamar Jamal executed a tenancy agreement, dated 1‑10‑1988 in favour of Nisar Ahmed Sherani, the younger brother of Viqar Ahmed Sherani, letting out the entire ground of the premises in question? (8) Whether on 15‑9‑1987, the said Nisar Ahmed Sherani filed Case No. 1663 of 1987 :r the Court of Vth Civil Judge, Karachi, South against the said purchaser Mrs. Qamar Jarnal as defendant No.1 and present applicant as defendant No.2 for permanent injunction? (9) Whether the applicant and the opponent No.1 in connivance with each other filed Rent Case No.68 of 1987 and Case No. 1585 of 1987 in order to frustrate the lawful possession of the opponent No.2 in premises in question? (10) What should the order be?" After evaluating the evidence and material placed learned Rent Controller recorded the finding that the respondent No.1 is the landlord and respondent No.2 is her tenant and the appellant sub‑lettee. The remaining issues were also decided against the appellant, resultantly, the eviction application was allowed‑ by the impugned order. Hence the present appeal. I have heard Mr. Umar Farooq Khan, learned counsel for the appellant and Mr. Ahmed Pirzada, learned counsel for the respondents. Mr. Umar Farooq Khan has vehemently contended that the learned Rent Controller has erred in treating the respondent No.1 as owner/landlord and respondent No.2 as her tenant. He further contended that the eviction order was passed in utter disregard of the judgment, dated 28-9-1989 in Suit No. 1663 of 1987, filed by Nisar Ahmed Sheram against the respondent No.1 and Qamar Jamal, whereby the respondent and said Qamar Jamal was? restrained from evicting the appellant except in due process of law. In my view, the application for eviction is permissible under the law, as such, the judgment referred to above by the learned counsel for the appellant would not come in the way of the respondent for initiating proceedings for eviction, as provided under section 17 of the Act. Mr. Umar Farooq Khan has also vehemently contended that the respondent No.1 has parted with the possession under the agreement of sale with Qamar Jamal on 14-7-1984 and has received the full amount of Rs.1,25,000 in terms of Exh.0/1 and the appellant's brother was inducted as tenant. He further contended that the learned Rent Controller has rejected the application of the appellant for decision on special oath in terms, that they have not received the sale consideration from said Qamar Jamal. He further contended that even the signature on EXh.A/1was not verified by the learned Rent Controller in order to arrive at a finding if the same was issued by the respondent No.1 in receipt of the amount. The respondents' counsel met this contention by maintaining that the refusal by the respondents to take oath on plaintiff's demand has no penal consequences and the Court could not be precluded from deciding the case on merit. In support of his contentions, he referred the case of Rehmatullah v. Nasir Khan and 7 others 1991 MLD 1011. In my view, the Court can decide the matter on special oath provided both parties are agreeable. In absence of an agreement for decision on special oath, the Court cannot force an unwilling party for decision of special oath, as such this plea has no force. Secondly the learned Rent Controller was not supposed to determine the issue whether respondents had agreed to sell the property to Qamar Jamal, the Controller having limited jurisdiction. In my view, once the fate of alleged sale agreement stand sealed by order, dated 22-12-1998 of IIIrd Senior Civil Judge, Karachi, South, in Suit No.1384 of 1991, filed by Qamar Jamal Khan against respondent Mrs. Sarwat Akhtar and D.H.A. for specific performance of contract, whereby the suit was dismissed under the provision of Order 17, rule 3, C.P.C., the same cannot be agitated before a forum of limited jurisdiction. No restoration application was filed, appeal has not been preferred as maintained by the respondents' counsel. This fact has not been controverted by the counsel for the appellant. Thus, the plea that said Mrs. Qamar Jamal Khan is landlady and owner by agreement of sale and she inducted brother of the appellant, Nisar Ahmed Sherani is also not available to the appellant. The learned Rent Controller has concluded that the respondent Mrs. Sarwat Akhtar is the landlord and Gul Zameen Khan is the tenant and the appellant a sub-lettee. In my view, the finding recorded by the learned Rent Controller is sound proper and based on the evidence brought on record, particularly the following facts:-- (1) The proceedings of Suit No. 1585 of 1987 in the Court of XIIIth Civil Judge, Karachi South filed by the respondent No. 2 against the respondent No.1 for injunction (Annexure "A/4"). (2) Tenancy agreement, dated 27-2-1984 and 30-8-1987 between the respondent No.1 and respondent No.2. (3) Rent Case No.68 of 1987 filed respondent No.1 against respondent No. 2(c). (4) The plea taken by the appellant in Suit No. 1665 of 1987 was that they were inducted as tenant in 1983 by Qamar Jamal much before the alleged agreement of sale in her favour, whereas in rent proceedings, a different plea was that, taken Mrs. Qamar Jamal Khan inducted her brother Nisar Ahmed Sherani as tenant on 1-10-1986. The induction of the appellant's brother as tenant by Mrs. Qamar Jamal in the year 1983 much before the alleged agreement of sale is not considerable. The learned counsel for the respondent has supported the impugned order and maintained that the appellant has denied the relationship of landlord and tenant between the respondents and claimed himself to be a tenant under third person vie. Qamar Jamal, therefore, onus shifts on him to prove that he was the tenant of third person and who was his landlord. Qamar Jamal has not appeared in the witness-box to prove herself as owner/landlord. Her suit for specific performance of contract stand dismissed on 22-12-1998. The appellant failed to discharge the burden, therefore, the appellant cannot be allowed to defeat the right of respondent No.1 without proving the title of said Qamar Jamal and referred the observations of Abdul Qader Choudhry (as he then was) in Malik Abdul Qayyum v. Muhammad Hussain 1990 SCMR 1716 in the following words: 'That onus continues to shift in civil matters i.e. the relationship of landlord and tenant having been denied by respondent No.1 saying that he was tenant under one Kabul son of Fateh Khan, the onus, therefore, shifted to him and it was for him to prove that Kabul Khan was his landlord. Neither Kabul Khan entered the witness‑box, although he was present during the proceedings, nor any step was taken by the respondent to produce Kabul Khan; that respondent No.1 did not himself claim the title of the property, but asserted that it belonged to a third person, therefore, he could not defeat the petitioner's right without proving the title of the property in the other person." The plea that Qamar Jamal is the owner/landlord, who inducted the brother of the appellant as tenant has not been established, on the contrary, the dismissal of her suit falsified the stand taken by the appellant. The upshot of the above discussion is that the appeal has no merits and the same is dismissed in limine with listed application. These are the reasons of short order announced on 4‑10‑2000. S.A.K./S‑148/K ???????????????????????????????????????????????????????? ??????????? Appeal dismissed.