1986 PLP 707 (CLC)

Iqbal Akhtar for Respondents. Date of hearing: 7th November, 1985. The respondent No.l filed Ejectment Case No. 492/82 against respondents Nos. 2, 3, 4 and 5 in respect of room on the first floor of building situated on Plot No. 487/1 Shah Faisal Colony, Karachi, which was rented out on a monthly rent of Rs. 150 excluding electricity and other charges. It was alleged that Suleman the respondent No.2 is the tenant and has sublet the same to respondents Nos. 3, 4, 5 unauthorisedly and without permission of the respondent No.l. It was alleged that he has defaulted in payment of rent from 1‑10‑1981 to 31‑12‑1981 and the respondents Nos. 2 to 5 have damaged the floor and wall of the property and impaired its utility. Suleman the respondent No.2 remained absent and was declared ex parte. However respondents Nos. 3 to 5 appeared before the Controller and filed their written statement. These respondents pleaded that the relationship of landlord and tenant does not exist between them and respondent No.l. It was further pleaded that Guftar Shah is the tenant of the ground floor premises of the building alongwith the disputed room on the first floor on monthly rent of Rs. 300 and that they are working in the hotel of Guftar Shah and are not concerned with the tenancy of the premises. It was also stated that Suleman the respondent No.2 was working in the hotel of Guftar Shah but has left the job and is not working there. All other allegations were also denied. The learned Controller after recording the evidence came to the conclusion that the respondent No.2 has failed to pay the rent and ordered for ejectment. This appeal has been filed by Guftar Shah who was not a party before the Controller. It is not the case of the appellant that he was not aware of the proceeding against respondents Nos. 2 to 5 in respect of room on the first floor as he has appeared as a witness on behalf of these respondents. It is astonishing that in the case in which he claims to have an interest as tenant, he appeared as a witness but did not join the proceeding although in the event of an adverse order he would have been the main party effected by it. This abnormal conduct of the appellant has not been clarified or explained at any stage. It may be mentioned here that the respondent No.l had filed an ejectment case against the appellant being Case No. 491/82 on the ground of default in payment of rent in respect of three shops on the ground floor which he is occupying as tenant and is being used as a hotel. That case has been dismissed for want of notice under section 18 of Sind Rented Premises Ordinance, 1979. The order passed in that case has been placed on record but there is no finding that the appellant was a tenant in respect of the room on the first floor which is in dispute in this appeal. Mr. K. A. Wahab's only contention is that in the state of pleading the learned Controller should have framed a preliminary issue regarding the relation ship of the landlord and tenant between the parties and after deciding that issue should have proceeded on merit. In my view in every case ii is not necessary to frame a preliminary issue. It is correct that if an issue has been raised which goes to the root of the jurisdiction of the Controller, steps should be taken to decide it first before deciding any other issue on merits. This observation is relevant and applicable mostly in the cases when the Controller is asked to pass an order for deposit of rent. At that stage the issue relating to relationship should be decided first. But where such a situation does not arise and the Controller takes up this issue with other issues and gives his finding in a consolidated order it cannot be termed illegal nor it vitiates the entire proceeding before the Controller. It is, however, desirable that issue relating to relationship must be decided first. According to the learned counsel for the appellant no issue relating to relationship has been framed by the Controller. From the pleading it is clear that respondents Nos. 3 to 5 have stated that they are servants of the appellant who is the tenant of the premises. Suleman has not appeared and therefore, there is no denial from Suleman, the respondent No.2, that he is not a tenant. This plea has been raised by respondents Nos. 3 to 5 who are admittedly not tenants. However, issue No.4 was framed which reads as follows:‑-- "Whether said room is included in the tenancy of Guftar Shah" In my view this issue covers the dispute relating to relationship of landlord and tenant between the respondent No.l and respondent No.2. If finding is given in the affirmative then Suleman cannot be the tenant of the disputed premises. However if finding is given in the negative then the plea raised by respondents Nos.3 to 5 cannot be upheld. By giving finding on this issue the preliminary objection regarding relationship has been decided. The learned Controller has rejected the plea of the respondents Nos.3 to 5 that they are the servants of the appellant as there is contradiction in the evidence on record. In their cross‑examination they have been shaken. Controller has taken a correct view and his finding is based on proper appreciation of evidence. The appellant who had appeared as a witness has not been able to prove by any documentary evidence that they are his regular employees. The appellant is running a hotel and he should be having some documents of some nature in respect of his business and persons employed by him. The learned Controller while holding that the respondent No.2 is the tenant and respondents Nos. 3 to 5 are his sub‑tenants clearly implies that the appellant is not the tenant. In this regard Mr. K.A. Wahab, the learned counsel for the appellant, contended that the matter may be remanded for giving clear finding on this issue. The parties have lead evidence and the appellant was also examined by respondents Nos. 3 to

5. On the basis of evidence on record the learned Controller has given a proper finding and, therefore, it is not necessary to remand the case. Mr. Iqbal Akhtar the learned counsel for the respondent No.1 has invited my intention to a document Exh 0/6 which is a compromise in respect of dispute between the appellant and respondent No.l. This document has not been denied by the appellant as in his memo. of appeal it has been referred directly. Exh. 0/6 was executed on 29‑10‑1980 and has been admitted by the parties. It was produced by the respondents Nos. 3 to

5. In this document recital has been made that Guftar Shah is a tenant in respect of three shops. This statement is sufficient to establish that the appellant is the tenant of the ground floor premises which includes three shops. If his tenancy would have included the room on the first floor, the same would have been also mentioned in this agreement. From the admission order it seems that at that time it was argued that the only access to the room on the first floor is through a staircase from the ground floor shops, the premises occupied by the appellant of which he is the tenant. By this argument it was implied that prima facie the location of the disputed premises on the first floor is such that it forms part of the ground floor premises. However this plea has not been pressed by the appellant in spite of the fact that the attention of the learned counsel for the appellant was pointedly invited to this aspect of the case. The respondent has filed a counter-affidavit denying this factual position. The fact that this argument has been given up lends support to the contention of the learned counsel for the respondent No.l that staircase leading to the first floor is separately and independently constructed. In view of this discussion the appeal is dismissed with no order as to costs. H.B.T. Appeal dismissed.