1988 PLP 249 (MLD)

K.M. Nadeem for Appellant. S. Amjad Hussain for Respondents. Date of hearing: 20th March; 1988. Respondent No.l filed ejectment application against respondent No.2 which was allowed. An appeal filed by respondent No.2 was also dismissed by the High Court. During the execution proceedings before the writ of ejectment was executed the appellant filed an application under section 22 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) read with section 12(2), C.P.C. read with section 141, C.P.C. and section 20 of the Sind General Clauses Act. This application was filed on 11‑5‑1986. It is pertinent to note that by an amendment, section 12 (2) was introduced in C.P.C. on 12‑5‑1986. The main ground in this application was that the appellant is a tenant in respect of the premises in dispute where he is residing and carrying on business. His brother, respondent No. 2 was also carrying on business with him and was assisting him but in the year 1976 sharp and serious differences arose between them and he started his business at another site. He became hostile with the appellant and in collusion with respondent No. 1 allowed order of ejectment to be passed. It is alleged that he came to know about ejectment proceedings on 7‑5 1985 and filed this application. The learned Controller by the impugned order dismissed the application.

2. Mr. K.M. Nadeem, learned counsel appearing for the appellant contended that no opportunity was given to the appellant to produce evidence and to cross‑examine the respondent No.

1. From the record it seems that the appellant had filed his affidavit and also produced certain documents in support of his contention. The respondent No.l also filed his counter‑affidavit and on the basis of these affidavits the impugned order was passed. From the record it does not seem clear that the appellant at any stage had demanded that he would like to produce any evidence. The learned counsel relying can the case of M/s Manihino Ltd. vs. M/s Selmor International Ltd and another (P L D 1983 S 0155) contended that the principles of C.P.C. should have been made applicable and proper opportunity should have been given to the appellant to produce the evidence. In this judgment it has been held that the provisions of C P.C. particularly section 47 and Order XXI, rule 100 are not applicable to the execution proceedings before the Controller but equitable principles of C.P.C. can be pressed in service. It was also pointed out that under section 22 of the Ordinance no specific procedure has been laid down and it has been left to the Controller to determine the same. Such procedure should be in accordance with the principles of justice which may differ from case to case.

3. In the present case the learned Controller has considered the documentary evidence produced by the appellant. The claim that the appellant is a tenant has not been accepted. The appellant had produced an application for obtaining electricity connection allegedly approved by the respondent No. 1, the bills of the electricity company showing that electricity connected is in his name, the Nikahnama and identity card. These documents necessarily do not imply that the appellant is a tenant. They can only establish that the appellant was occupying the premises in dispute. The appellant has not produced a single rent receipt or any affidavit of any independent person to show that he has been paying rent to respondent No.

1. The learned counsel argued that money orders were sent to the respondent No. 1 but they were refused. The receipts of money orders or their copies have not been produced with the memo of appeal nor they were produced before the Controller. According to the learned counsel, these money order receipts which are lying in his file are dated 3‑1‑1986 and 12‑1‑1986. They can hardly substantiate his claim. The rent proceedings have been pending from the year 1978 and it is at the execution stage that this application has been filed by the appellant without specifying how he came to know about the proceedings and why he was not aware of the ejectment proceedings for the last eight years. The application seems to be collusive and is intended to defeat the ejectment order. The learned Rent Controller has rightly observed that there is no iota of evidence of any nature to prove that the appellant is a tenant in respect, of the premises.

4. The appeal is dismissed with costs. The premises should be vacated I I within three months. M.Y.H./M‑485/K Appeal dismissed.