1998 PLP 1085 (CLC)

(1) Whether there existed relationship of landlord and tenant between the applicant and the opponent regarding House No.C‑22, Noorani Basti Chakra Goth, Karachi No. 1, Karachi? (2) Whether the opponent committed a wilful default in payment of rent since November, 1989 to the applicant? (3) What should the order be?

3. Both the parties led their evidence in shape of their affidavits, affidavits of their witnesses and produced documents in support of their contention. The learned Rent Controller on assessment of the evidence led before it came to the conclusion that Ghulam Hussain was the landlord/owner of the premises while Muhammad Rashid Janjua was the tenant. The learned Rent Controller further held in his judgment that applicant Muhammad Rashid Janjua had committed a wilful default in payment of the rent from November, 1989 and, therefore, he was liable to be ejected. The tenant was given 30 days time to vacate the premises.

4. In the present appeal the tenant Muhammad Rashid Janjua challenging the order of the Rent Controller had contended that since he had challenged the relationship of landlord and tenant between him and Ghulam Hussain, the learned Rent Controller had erred in coming to the conclusion that he was defaulter in payment of the rent and in support of this contention the learned counsel for the appellant argued that on the basis of the evidence led before the Rent Controller it should not be held that he is a defaulter.

5. Further technicality challenging the proceedings before the Rent Controller the learned counsel for the appellant pointed out that the verification of the affidavits‑in‑evidence produced by the landlord was not in accordance with law and, therefore, the same should not be considered as evidence of the landlord. Further contention of the learned counsel for the appellant was that till the pendency of the suit, the learned Rent Controller could not have ordered his ejectment from the premises.

6. On going through the record of the learned Rent Controller it is found that the landlord Ghulam Hussain filed his affidavit‑in‑evidence and produced the original agreement of sale executed in his favour by Musafir Khan. The said original agreement is Exh.A/ 1 on the record of the Rent Controller and it is attested by witnesses Haji Murad, Muhammad Nawaz and Haji Imtiaz Hussain. Ghulam Hussain also produced in evidence the original receipts of‑payment made towards the charges for water supply to the premises, issued by Karachi Water and Sewerage Board. These receipts are Exhs. A‑2' and ' A‑3' . There is also a receipt called "Test Report Receipt" (Exh.A‑4) issued by Karachi Electric Supply Corporation, which is, dated 29‑3‑1986 denoting that an application for supply of electricity was moved on that date. The receipts of Karachi Water and Sewerage Board were, dated 5th March, 1986 and 25th February, 1987. These receipts are in the name of Musafir Khan, bearing House No.22, Noorani Basti, Korangi No. 1, Karachi. In addition, Ghulam Hussain also produced many other receipts showing that electricity charges were paid during the years 1986 and 1987 for many months in the name of Musafir Khan by him. The other evidence led by Ghulam Hussain comprised the evidence of Muhammad Nawaz, Haji Murad, Shafi Muhammad and Muhammad Umer. Witnesses Muhammad Nawaz and Haji Murad had stated that Musafir Khan had actually sold the premises for the first time to Ghulam Hussain in their presence, and that agreement was executed also in their presence, which they had signed as witnesses. Witnesses Shaft Muhammad and Muhammad Umar deposed that in their presence in the month of August, 1989 the tenant Muhammad Rashid Janjua was inducted by Ghulam Hussain on their pursuation and that a rent of Rs.500 per month was settled and Muhammad Rashid had paid rent for one month in their presence to Ghulam Hussain. The evidence of these witnesses after due cross‑examination was duly scrutinised and assessed by the learned Rent Controller and believed. From the side of the tenant there is evidence of his own and he has produced only a photostat copy of the agreement of sale executed by Musafir Khan in his favour in the year 1985. In addition, Muhammad Rashid Janjua produced certain documents but all these documents pertain to the years 1989 and 1990. Two of these documents are receipts for purchase of bricks and paints while three are the receipts of payment of electricity charges in the name of Muhammad Rashid Janjua pertaining to the year 1990. The other document on which much reliance was placed by the learned counsel for the tenant was a membership form showing that Muhammad Rashid, a retired Sergeant, was member of a "Anjuman Bashindgan‑e‑Noorani Basti"from the year 1985. This document appears to have been signed by the President and the General Secretary of the said Anjuman but neither affidavits were filed in support of issuance of such certificate of membership nor they were produced in evidence for cross-examination. Besides, significantly the number of the house in occupation of Muhammad Rashid shown in this membership form is C/912, Noorani Basti, Sector 40/C, ' Y' Area, Korangi No. 1, Karachi

31. This is definitely in respect of some other premises and, therefore, it was not relied upon by the Rent Controller as he did not rely on the evidence of Muhammad Rashid Janjua about his contention of his being himself the owner of the premises in dispute. On going through the judgment of the learned Rent Controller, it appears to me to be well‑reasoned and having well‑discussed in detail the entire evidence on record and does not appear to suffer from any C material illegality or irregularity. The only contention of the learned counsel for the appellant of some substance to decide this appeal was whether the learned Rent Controller could pass the order of ejectment when the tenant had challenged his relationship. On this ground reliance is placed on the case bf Province of Punjab through Education Secretary and another v. Mufti 'Abdul Ghani, reported in PLD 1985 SC 1, wherein their Lordships of the Supreme Court observed as under:‑‑‑ "And thirdly, it was emphasised in that case and we reiterate it that the Rent Controller has, in every such case, to make distinction between genuine and well‑founded dispute about the title and that which is vexatious (designed to achieve delay), frivolous or without foundation. Unless this aspect is willingly ignored, a Presiding Officer of ordinary experience would be able to make the distinction between the two. And in the latter case he shall be under a duty not to permit the challenge to the title. Guidance in this behalf is also available in the case of Rehmatullah itself. The Rent Controller who ignores these very vital considerations might be deemed to be failing in an important duty."

7. In the present case the Rent Controller has passed his judgment on the evidence and the documents produced by the parties before him and to me it appears that he has fully justified the same in the reasons given by him in the judgment.

8. On a question put to the learned counsel for the appellant by the Court as to why Muhammad Rashid Janjua could not produce any document like payment receipt for electricity and water charges from the year 1985 when he claims to have purchased the premises from Musafir Khan, the learned counsel was unable to satisfy the Court. Similarly, as to why the original agreement of sale executed by Musafir Khan in favour of Muhammad Rashid was not produced before the Rent Controller, the learned counsel for the appellant merely stated that its photostat copy was enough, which was produced. Had the appellant actually purchased the premises in the year 1985 and occupied the same, he must have come into possession of the documents like receipts of payment of electricity charges and water charges. In juxta position to the above case, Ghulam Hussain, who claims to have purchased this house from Musafir Khan in 1987, has produced the receipts of payment of electricity and water charges for the year 1987. Following the principle laid down in the case of Province of Punjab v. Mufti Abdul Ghani (PLD 1985 SC 1) the duty of the Rent Controller to check whether the plea of denial of relationship was frivolous or genuine, I find that the learned Rent Controller has quite correctly scrutinised and discussed the evidence led by the parties on the issue of relationship and his finding on the same is neither incorrect nor absurd.

9. Reverting to the objection of the learned counsel for the appellant that the verification of the affidavits was not proper and hence their consideration by the Rent Controller in evidence should be held as improper, I find that the affidavits of witnesses Muhammad Nawaz, Haji Murad and Muhammad Umar have been verified in the following manner:‑‑‑ "That whatever stated above is correct to my knowledge." The objection of the learned counsel for the appellant is that the requirement of law is that the contentions of fact should be separately verified to denote the contention of the fact must be correct to the knowledge of the deponent while the contention of law must be correct to his belief. The learned counsel for the appellant has omitted to note that these affidavits contained only the facts which the deponents had stated to be correct according to their knowledge. No legal pleas have been taken in these affidavits, therefore, there is no necessity tp state that the same were correct according to the belief of the deponent. Apart from what is stated above, these are the proceedings before the Rent Controller and not before a Civil Court where adherence of such principles of law were to be strictly attracted. As regards the affidavit of Ghulam Hussain, it is also entirely on factual side and there is no legal plea which ought to have been stated to be correct on the basis of the belief of the deponent. For the above reasons, I do not find any force in the arguments of the learned counsel for the appellant to discard the evidence led by the appellant. The learned counsel had placed his reliance on the case of Habib Bux v. Zahoorul Hasan reported in 1986 CLC 1119. For the reasons discussed above, I hold that the principles laid down in the reported case are not attracted in the present case.

10. The last objection of the learned counsel for the appellant finding errors in the evidence of the landlord was that affidavit‑in‑evidence of witnesses Muhammad Nawaz and Haji Murad were typed at one stroke keeping the names of the deponents, blank, and similarly the affidavits‑in‑evidence of Shafi Muhammad and Muhammad Umar suffered from same defects. It was stated that only the names of the deponents were typed again filling the blanks in the affidavits and, therefore, these affidavits may be discarded from the evidence. The learned counsel had relied upon a case of Muhammad Saeed v. Khawar Rafi, decided by Justice Sajjad Ali Shah, the erstwhile Judge of this Court as reported in 1985 CLC page 2125. On going through the cross‑examination of the witnesses abovenamed, on the question of infirmity of these affidavits, I find that the affidavits were not challenged on that point in the cross‑examination as no such question was ever put to them. Apart from that, leading of evidence through affidavits before the Rent Controller has been permitted by law and the affidavits have to be drafted and then typed. It is the reading over of the evidence and the verification which is important and if the evidence of two witnesses is short and exactly the same as is in the present case, comprising of a single paragraph, I do not agree that it is such a defect as to take the affidavits out of consideration. Consequently, I do not think the principle laid down in the case of Muhammad Saeed v. Khawar Rafi is attracted in the present case. Even otherwise, in the case of Muhammad Saeed v. Khawar Rafi, the evidence was held to be not trustworthy not only for the defect of filling in the blanks but for the reason that deponents stood falsified in view of the documentary evidence and admissions made by the tenant, in the cross‑examination also. Such circumstances are lacking in this case, therefore, I do not find force in this objection from the learned counsel for the appellant. As a result, I find no force in the present appeal and, therefore, dismiss the same. However, since the appeal has been pending for sufficiently long time, I order that the appellant is allowed 60 days time from the date of this judgment for vacating the premises. A.A./M‑262/K Appeal dismissed.