2008 PLP 1774 (YLR)

MUHAMMAD AFZAL SOOMRO, C.J.

This case was fixed on 28-4-2008. Learned counsel for the appellant was called absent. However, in the interest of justice the matter was fixed on 2-5-2008 but again learned counsel for the appellant remained absent: I, therefore, heard the learned counsel for the respondent and have gone through the impugned order and perused the relevant papers. This First Rent Appeal is directed against the order, dated 15-6-2002 passed by the learned Addl. Controller of Rents, Clifton Cantonment, Karachi, in Rent Case No.4 of 1987, whereby the ejectment application filed by deceased Maj.(R) Zakauddin Khan, owner/landlord of property No.10/1, Zamzama Boulevard, Clifton, Karachi was rejected. The facts leading to disposal of this appeal are that Maj.(R) Zakauddin Khan (since deceased), owner/landlord of the property in question rented out Eastern portion of his said bungalow to one S.M. Abdul Fatouh (the deceased opponent) from January, 1984 at the rate of Rs.5000 per month under an oral agreement. Said Abdul Fatouh (a foreigner) paid Rs.50,000 as advance rent at the rate of Rs.5000 per month which stood adjusted w.e.f. January, 1984 to October, 1984, whereafter he failed to pay the rent as well as utility charges inspite of repeated requests and on 12th January, 1987 Major Zakauddin Khan filed Rent Case No.4/87 under section 17 of Cantonments Rent Restriction Act, 1963 for eviction of S.M. Abdul Fatouh. This is a second round of litigation. Earlier this Court remanded the case to the learned Rent Controller for deciding the entire case including the question of existence of relationship of landlord and tenant between the parties. Mst. Nasim Anwar widow of the deceased applicant and her witness Major (R) Javed Iqbal were examined. A son of the deceased Ayman A. Fatouh was examined. The respondent in the written statement denied the allegations and submitted that there is no relationship of landlord and tenant between the applicant and the opponent and the opponent's wife Mrs. Zainab Adawy purchased the eastern portion of the plot in question from the applicant by virtue of agreement for sale dated 4-4-1983 along with incomplete structure and thereafter the said structure was completed by spending Rs.5 lacs and opponent's wife is in possession of the same. It is case of the opponent/respondent that the applicant/appellant refused to transfer and convey the said property in the name of the opponent's wife, whereby she filed a suit for specific performance of contract bearing No.403/87. The son of the opponent supported the contention made by his late father. It is case of the respondent that the matter regarding ownership/title of the demised premises is pending before the Civil Court and the learned Rent Controller has no jurisdiction to decide the question of title. Reliance was placed on the case of Rehmatullah v. Ali Muhammad and others 1983 SCMR 1064. The dispute in respect of the property in question is subject matter of litigation before the Courts of law and until Civil Court gives its findings the Rent Controller is unable to determine whether there is relationship of landlord and tenant between the parties. I have examined the order of the learned Rent Controller which does not suffer from any illegality or infirmity and needs no interference. Event the honourable Supreme Court in the case reported in 1983 SCMR 1064 has held that the Rent Controller need not go into disputed question of title. Leading of evidence by parties before Rent Controller on issue of title not desired-proper course for Rent Controller in circumstances would be to decide issue against landlord and advise landlord to get his title established from a Court of general jurisdiction before seeking ejectment. It is further held that landlord can reagitate 'matter before Rent Controller against and decision of Rent Controller taken earlier would not constitute res judicata or preclude him from reagitating matter before him once again. Resultantly, I dismiss this First Rent Appeal and maintain the order of the learned Addl. Controller of Rent. H.B.T./Z-11/K Appeal dismissed.