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Second Appeal No. 449 of 1978, decided on 19th January, 1980.

--S.2(i)-Tenant--Licensee-Rent receipts appearing in name of respondent-Apart from appellant's word nothing more on record indicating payment having been made to landlord through respondent or even any payment of rent having been made at all-Nothing pointed out to displace findings of Courts below holding appellant a licensee, appellant, held, a licensee.

Ahmed Din v. Mst. Mahmoodun Nissa and others P L D 1961 Kar.

-- S. 9 read with West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13 - Jurisdiction of civil Courts - Eviction of licensee----Appellant neither tenant nor sub-tenant but licensee. West Pakistan Urban Rent Restriction Ordinance, 1959 held, not applicable for his eviction----Civil Court alone, held, has jurisdiction to entertain such suit.

Syed Qutbuddin Ahmed for Appellant.

Syed Inayat Ali for Respondent No. I

Zafar Aziz Bajwa for Respondent No. 2.

Date of hearing 10th November, 1979 and 19th January, 1980.

The present second appeal has been filed by appellant Yousuf to challenge concurrent judgments passed by XIVth Civil Judge. Second Class, Karachi, and Vth Additional District Judge. Karachi, whereby Suit No. 122 1972, filed in the Court of the Civil Judge by respondent Ghulam Mohammad against appellant Yousaf and the pro ,forma respondent, the Karachi Electric supply Corporation Limited, was decreed. The reliefs that were claimed in the suit were for declaration that respondent Ghulam 4Iohammad was the tenant in respect of tenement No. 5 in Abbas Building, and that the appellant was only his licensee and further for possession of the said tenement. In the suit a relief had also been claimed against the Karachi Electric Supply Corporation to restrain then by an injunction from installing Electric Meter in the tenement. The suit was decreed by i<1 the Civil Judge in favour of the respondent against the appellant but was dismissed against the pro forma respondent. the Karachi Electric Supply Corporation. An appeal filed by the appellant also failed so that the judgment and decree passed by the Civil Judge was maintained.

2. I have heard Mr. Qutbuddin Ahmed for the appellant, Yousuf, Syed Inavat Ali for respondent Ghulam Mohammad, and Mr, Zafar Aziz Bajwa for the pro forma respondent.

3. The brief facts of the case are that respondent Ghulam Mohammad had a tenancy of tenements Nos. 2 and 5 in a building known as Abbas Building on Siddik Wahab Road. Karachi. at a rental of Rs. 20 per month for each tenement. The rent of the premises had always been paid to the landlord by respondent Ghulam Mohammad and the rent receipts were also issued in his name. The appellant was occupying tenement No. 5 and while the appellant admits that the receipts of rent were always issued in the name of respondent Ghulam Mohammad he has set up a case that in fact he was a sub-tenant under the licence. It must be stated that even as to his status he had taken divergent stands by often terming himself as a tenant and sometimes as a sub-tenant. It seems that before the filing of the suit, the appellant had made an application to the Karachi Electric Supply Corporation for electric connection and the respondents coming to know of such a move initially attempted to pursuade the said Corporation not to grant separate electric connection but having failed he filed the suit for reliefs as stated above. The case of the respondent in the amended plaint was that the appellant who was his brother-in-law was occupying the tenement in dispute as a licensee without paying any licence fee. The appe1jant wanted the house in question for the use of his eldest son who had martied and who also had got 6 child: The respondent also made by a grievance in the plaint about of the appellant attempting to have electric supply in the tenement. In the written statement the appellant had set up case which can be best reproduced in the original words :--

(a); '" That the contents of para. I of the plaint is admitted. It is sub mitted that the fiat No. 5 was taken by the plaintiff for defendant No. 1 and the defendant No. 1 is residing in the said flat from the very beginning and the rent is being paid by the defendant No. 1.

(2) That the contents of para. 2 of the plaint are admitted to the extent that the defendant. No. 1 is the brother-in-law of the plaintiff, It as submitted that the defendant No. I is not licensee but is occupying the flat in question as tenant and paying rent to the plaintiff.

4. The suit was also -ought to be resisted on the ground that the plaint was undervalued and the proper court-fee had not been paid. that the suit was barred under West Pakistan Urban Rent Restriction Ord nance ; that the suit was not maintainable arid was liable to be dismissed 'or non-joinder of proper parties. On the pleadings of the parties the trial Court framed the following 6 issues :-

(1) Whether the suit is barred under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 ''

(2) Whether the suit has not been properly valued

(3) Whether the defendant No. 1 is the tenant or licensee of the plaintiff in respect of tenement No. 5 in question t

(4) Whether the defendant No. 1 falsely represented to defendant No. 2 to be the tenant of tenement No. 5 in question for installation of electric connection therein" if so what is its effect

(5) Whether the plaintiff is entitled to the possession of tenement No. 5 iii question occupied by the defendant No. 1

(6) What should the decree be

5. Issue No. 4 was not pressed at the time of hearing, Issues Nos. 1 and 2 were answered in the negative i.e. against the appellant while Issue No. 5 was answered in the affirmative arid also against the appellant. On . Issue No. 3 the finding was that the appellant was a licensee of respondent Ghulam Mohammad in the result, the suit was decreed.

6. The dominant issue underlying the controversy is issue No. 3. The said issued date mined the status of the appellant. The question that needs to be determined was whether the premises in question were in possession of the appellant as a tenant or sub-tenant or licensee. On this issue the evidence of respondent/plaintiff Ghulam Mohammad was very consistent and clear. He had stated that the appellant/defendant was his brother in law and in occupation of the tenement in question as a licensee. The appellant had set up varying and mutually destructive cases before the trial Court. In the written statement he stated that the tenement is question had been taken by the respondent for the benefit of the appellant who was paying the rent for the same. On such premises the appellant stated that he was not a licensee but a tenant. In his evidence he again stated that he was the tenant of the plaintiff and not of the landlord there by setting up the case of sub-tenancy. He was confronted with his written statement wherein he had stated that he was a tenant in his own right though paying the rent through the respondent and he denied having so stated in the written statement. The learned Civil-Judge came to the conclusion that the appellant could not be termed as a tenant or a sub-tenant. Reliance was placed on the case of Ahmad Din v. Mst. Mohamaodun Nissa and others (1) for coming to the conclusion that the appellant was a mere licensee. It seems an argument was raised before the learned Civil Judge to the effect that since the possession of the appellant was exclusive he should be deemed to be the tenant but such argument was also rightly repelled. The established facts are that the rent receipt had been in the name of the respondent and apart from the word of the appellant there is nothing more on the record to indicate that he had been paying the rent to the landlord through the respondent or paying any rent at all. On such premises of fact the learned Civil Judge came to the conclusion that the appellant was a mere licensee. Such concluding on point of fact has also been affirmed by the Additional District Judge. Nothing has been pointed out before me to displace such finding while dealing with this second appeal. I am also of the same view.

7. On the issue as to bar of the suit under West Pakistan Urdan Rent Restriction Ordinance the answer has to follow the answer to Issue No. 3 which determines the status of the appellant. Since the appellant was neither a -tenant nor sub-tenant the said Ordinance would not apply. A civil Court would have the jurisdiction to entertain the suit for eviction of a licensee.

8. The finding on the remaining issues has not been challenged before me and in fact such issues for their decision will follow the decision on the main issue in regard to the status of the appellant.

9. In these circumstances, I see no substance in this second appeal which is dismissed with costs.

R. M. A. Appeal dismissed.

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