1980 PLP 312 (CLC)

Naimatullab Kureshi for Appellant. S. Hamid Hussain for Respondent No.

1. Date of hearing: 12th April, 1978. This appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, is directed against the judgment of the First Appellate Court, whereby it dismissed the appeal of the appellant and upheld the order of the Rent Controller directing the ejectment of the appellant.

2. The facts giving rise to this second appeal are that respondent No. 1, who claimed to be the landlady in respect of residential premises its Hirabad, Hyderabad, bearing City Survey No. A/112-105, filed an ejectment application against the appellant and respondent No. 2 in the Court of the Civil Judge and Rent Controller, Hyderabad, being Rent Application No. 303/1974. It was alleged in that application that the premises bad been rented out to respondent No. 2 on monthly rent of Rs. 150, but he had failed to pay the rent after September, 1973, and further had sublet the premises to the appellant herein. Respondent No. 2, in his objections, admitted both the default in the payment of rent and also in the subletting of the premises. The reason given for 'subletting was that the wives of respondent No. 2 and the appellant herein, were close relations. The appellant, on the other hand, denied that be vas sub-tenant of respondent No. 2 and contended that he was the real tenant and had been inducted in the premises by Abdul Hamid, the husband of respondent No. 2, who was the owner of the premises and to whom rent was being paid regularly.

3. In spite of denial by the appellant of relationship of landlord and tenant between him and respondent No. 1, the learned Rent Con troller did not frame any issue on this point. Furthermore, he struck off the defence of the appellant on the ground of his failure to deposit the arrears of rent and future rent as ordered by the Rent Controller. Both these orders were challenged by the appellant is appeal and the appellate Court set aside both the order: and remanded the case to the learned Rent Controller for framing an issue whether there exited relationship of landlord and tenant between the parties. This issue was accordingly framed but no oral evidence was led in the case by either party and both have relied on the documents which were filed in tire case. The learned Rent Controller held that the appellant was not the tenant of Abdul Hamid but was the sub-tenant of respondent No. 2, who had sublet the premises without permission of the landlady and also defaulted in the payment of rent. He accordingly ordered the appellant and respondent No. 2 to deliver vacant possession of the pre mises to respondent No. 1.

4. The appellant went up in appeal against the order of the learned Rent Controller to the 1st appellate Court but it confirmed the decision of the learned Rent Controller and rejected the appeal.

5. I have heard Mr. Naimatullah Kureshi, the learned counsel for the appellant, and Mr. S. Hamid Hussain, the learned counsel for respondent No. 1.

6. The first point urged by Mr. Naimatullah Kureshi was that though it was contended in the rent application by respondent No. 1 that the appellant was sub-tenant of respondent No. 2, there has been no finding of the two Courts below on this issue. The contention of the learned counsel is not quite correct for both the learned Rent Controller as well as the 1st Appellate Court have held that the appellant was the sub-tenant of respondent No.

1. This finding, however, does not rest on any tangible evidence, as no oral evidence, was led in the case and the documentary evidence produced in the case does not indicate whether the appellant was or was not the sub-tenant of respondent No.

2. No doubt, both respondent No. 1 and respondent No. 2'have stated that the appellant was the sub-tenant of respondent No. 2, but on the other's hand, the appellant has denied this fact in his written statement and contended that he himself was the tenant and he had been inducted in the premises by the husband of respondent No. 1, who in fact was the owner of the premises. The two Courts below seem to have taken the view that since the appellant had failed to establish that he had acquired tenancy through Abdul Hamid, therefore, it has to be presumed that be was sub-tenant of respondent No. 2.

7. The main contention of Mr. Naimatullah Kureshi and which is connected with his first point, however, was that there was no evidence before the two Courts below to establish relationship of landlord and tenant between the parties. The learned counsel submitted that for reaching the conclusion that there was relationship of landlord and tenant between the parties the only material available on record, in view of the fact that no oral evidence was led in the case, was the ejectment application of respondent No. 1 and the written-statement of respon dent No.

2. He submitted that inasmuch as the claim of sub-tenancy and relationship of landlord and tenant was denied by the appellant in his written statement the Courts below should not have relied on either the rent application or the written statement. Mr. Hamid Hussain, the learned counsel for respondent No. 1, on the other hand submitted that since it was the appellant who was claiming that there did not exist relationship of landlord and tenant between the parties, consequently the burden of proof to establish his assertion lay on the appellant. He further sub mitted that apart from the rent application of respondent No. I and' the written statement of respondent No. 2, the two Courts below have relied upon documentary evidence, namely, the letter dated 20-5-1974, sent by respondent No. 2 to the Director of Education, Hyderabad and the order passed by the learned first. Senior Civil Judge, Hyderabad, in Suit No. 191/1974. The letter addressed to the Director of Education by respondent No. 2, which is dated 20-5-1974, in no way establishes the relationship of landlord and tenant between the appellant and respon dent No. I. In that letter respondent No. I has stated that the appel lant had taken the house in question in March, 1973, for a few months for her marriage but she is refusing to vacate the house although from time to time giving false promises to the said respondent that site will do so. The allegations in the letter are in direct conflict with the written statement of respondent No. 2 where he has alleged that he had sublet the premises to the appellant. No indication has been given in the letter of May, 1974, that he had sublet the house to the appellant. This letter in fact supports the contention of the appellant that he had been residing in the premises in question since March, 1973. Upon this claim a further plea of the appellant is founded that at the time that he was inducted in the premises, the owner and the landlord was the hus band of respondent No. 1 and respondent No. 1 was nowhere in the picture. This .plea will be presently considered.

8. As regard Suit No. 291/1974, it was filed by the appellant seeking an injunction to restrain respondent No. 1 and her husband from harassing him unlawfully interfering with his peaceful enjoyment of the premises. In' that suit the plea taken by respondent No. 1 and her husband was that the appellant was trespasser. This was also the finding of the learned-Senior Civil Judge. This finding, which was based upon the contention of respondent No. 1 herself and was not challenged by way of appeal, is at complete variance with the contention of respondent No. 1 in the rent application that the appellant is a sub-tenant of res pondent No.

2. If the appellant was a trespasser, as alleged and held in Suit No. 291/1974, how would he at the same time be a sub-tenant of respondent No. 2 from March; 1973.

9. Mr. Niamatullah Kureshi also relied upon the extract from the Property Register Card of Hyderabad which shows that the property in question, which originally belonged to the husband of respondent No. 1, was transferred by him to respondent No. 1 by gift on 3rd September 1974. This indicates that prior to the transfer the husband of respon dent No. 1 as the owner of the house and was presumably also exercising all the rights of landlord. To that extent, this extract seems to sup port the contention of the appellant that he was inducted in the premises by the husband of respondent No. 1 in March, 1973, much before the 9 transfer of the house to respondent No.

1. It may be pointed out that the husband of respondent No. 1 has not cared to step into the box an therefore, the assertion of the appellant in this regard has not been con tradicted.

10. In view of the above circumstances. I am of the opinion that the relationship of landlord and tenant between the parties has not been established. The mere fact that the appellant was in occupation of the premises which have subsequently been gifted to respondent No. 1 does not by itself lead to the inference that such relationship does exist, specially in view of the contention of the appellant that he had been in ducted in the premises by the original owner much before he transferred the premises to respondent No. 1 and that no notice of transfer of the house was served on him, as required by section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959. In the circumstances, I am of the opinion that the decisions of the two Courts below cannot be upheld. 1 would accordingly set aside the same and allow the appeal with costs. K. M. A. Appeal allowed.