1982 PLP 922 (CLC)

On the pleadings of the parties the Controller framed the following issues as preliminary issues :‑ "(1) Whether the relationship of landlord and tenant exists between the parties ? (2) Whether the suit for specific performance of the contract is pending between the parties, if so, what is its effect?" In support of his case the appellant examined himself and two witnesses namely, Mehtab Khan (Exh. 2), and Qaiser Shaiko (Exh. 3) and produced a receipt (Exh. 3) in support of his claim that he had purchased the house when it was a but for Rs.400 from Mian Jan and another receipt acknow ledging receipt of Rs.3,200 on account of costs of construction received by Chuttan Khan which was not exhibited for the reason that was not proved. The respondent, on the other hand, in support of her case examined herself and Sabir Hussain, a neighbour and ‑produced a certified copy of the extract from the Register of properties maintained by the Excise & Taxation Department recording her name as owner of the house and electric bill dated 20‑1‑1976; (Exh. 0/4) notice dated 13‑8‑1974 (Exh. 0/5) from Excise and Taxation Department for recording amendment of the annual letting value of the house extract from P. T. I. Regular (Exh. 0/6) receipt, dated 20‑11‑1977 (Exh. 0/7) for payment of electricity bill and notice (Exh. 0/8) requiring payment for providing electricity. The learned Controller by the order dated 30‑1‑1978, decided the issue of relationship of landlord and tenant in favour of the appellant holding that such a relationship existed between the parties. As regards second issue he observed that admittedly the suit for specific performance of the contract was dismissed and even otherwise he further observed, until she was able to obtain any prohibitory order, the proceedings would continue. This issue was answered accordingly. This order was followed by another order rated 19‑7‑1978, under section 13(6) of the Ordinance whereby the Controller directed the respondent to deposit Rs.5,300 being the arrears of rent from 15‑8‑1969 to 30‑6‑1978, which the respondent failed to deposit. The Controller, therefore, by the order dated 15‑2‑1979, struck off the defence of the respondent and directed her to hand over vacant possession of the premises within 2 months of the pronouncement of the order to the appellant. Therefore, the respondent filed first Appeal which has been allowed by the Additional District Judge, Karachi by the Judgment now impugned before me. It appears from the record of the first rent appeal that the respondent had filed a constitutional petition being Petition No. D‑467 of 1978 against the order dated 30‑1‑1978, which was dismissed ‑in limine with the observa tion that an order holding that the relationship of landlord and tenant exists is not an appealable order and if and when a final order is mad against the petitioner for eviction it would be open to her to challenge th interim finding in the appeal. I have heard Mr. M. G. Dastgir, Advocate for the appellant and Mr. Ameer Ahmed Khan Advocate for the respondent and they have taken me through the entire record including the depositions of the parties and their respective witnesses. Mr. M. G. Dastgir has raised before me following three grounds in support of the appeal:‑ (1) that the finding of the First Appellate Court that there does not exist aw o relationship of landlord and tenant between the parties is incorrect, erroneous ; (2) that the Appellate Court did not dispose of application under section 13(6) of the Ordinance dated 27‑5‑1979, whereby the appellant had prayed for withdrawal of the ad interim stay order passed on 28‑3‑1979, and for dismissal of the appeal for wilful, deliberate and clear disregard of the order dated 28‑3‑1979, passed on the application under section 15(2) of the Ordinance, and non‑compliance of the Controller's order dated 19‑7‑1978. (3) that the merits of the , case in first appeal could not be considered unless and until the order of the Controller, dated 19‑7‑1978 had been complied with. Now, so far as the first ground is concerned it may be stated that a finding of fact given in first appeal is not open to challenge unless there was misreading or non