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First Rent Appeal No.300 of 1984, decided on 3rd April, 1984.

---S.13--Landlord and tenant, relationship of--Tenant denying relation ship of landlord and tenant--Rent Controller should frame a preliminary issue and decide first--Such principle not applicable, where tenant raised issue of relationship merely to delay proceedings--On basis of pleading Rent Controller coming to conclusion that such issue raised by tenant did not prima facie seem to be correct and completely contrary to record or agreement, held, Rent Controller could proceed with matter without even framing issue of existence of relationship of tenant and landlord.

P L D 1971 S C 124; 1965 P L C 681 and P L D 1968 Kar. 869 ref.

---Ss.5, 6 & 15 (2)(i)--Tenancy agreement--Agreement of tenancy ceasing to be valid as provided by Ss.5 & - 6, landlord entitled to ejectment--Compliance with S. 5 will be more material for purpose of Ss.6 & 15(2)(i) to show that agreement of tenancy had ceased to be valid--Tenant admitting execution of agreement, even if agreement not attested by relevant authorities same would neither nullify agreement of tenancy nor tenancy would be void.

S. Hamid Ali for Appellant.

The respondent filed an application for ejectment of appellant No.2 on the ground of default in payment of rent, subletting and assignment of tenancy to Bamhrouli Co-operative Society, without written permission and consent of the respondent. Copy of the tenancy agreement dated 7-10-1980 was also annexed with the ejectment application. It was also alleged in the application that a notice was served on the appellant No.1 stating all these facts. This notice does not seem to have been replied. The appellant No.2 filed a written statement in which preliminary objection was taken that the application was not maintainable, as the tenant namely Bamhrouli Society has not been joined as party. Thereafter, parawise reply was made and para. I reads as follows:-

"The contents of para. 1 of the application are not correct as framed and denied. It is submitted that Bamhrouli Co-operative Housing Society is the tenant of the applicant and the opponent is its Office Secretary. An agreement of tenancy was agreed to be executed between the applicant and the Society and the opponent in his capacity as such signed the said agreement. The opponent does not admit genuineness of the agreement of tenancy referred to and relied upon by the applicant; which is neither a properly stamped document nor is an agreement of tenancy as contemplated by the provisions of Sind Rented Premises Ordinance, 1979, since it does not fulfil the legal requirements. It is submitted that the applicant is misusing the so-called agreement of tenancy which omits the name of the tenant namely Bamhrouli Co-operative Housing Society, and does not correctly describes the signatory as Office Secretary. The copy of agreement attached to the application does not disclose true intention of executants and the same is not a valid and proper agreement of tenancy. However, it is not denied that the premises in question was obtained by the above-named Society for its Office use through the Opponent, but the Opponent is not the tenant nor he was ever tenant of the applicant."

The learned Controller passed an order for deposit of rent on 24-9-1981. As the appellant No.2 failed to comply with the order, the respondent filed an application under section 16(2) of the Sind Rented Premises Ordinance, which was granted by the impugned order. The defence of the appellant No.2 was struck off, and he was directed to hand over the vacant possession of the premises within 30 days of the order.

Mr. Hamid Ali the learned counsel for the appellant has contended that the order passed by the Controller is without jurisdiction, as the relationship of landlord and tenant was denied and the same was not decided first by the Controller before passing an order for deposit of rent. To press this point, the learned counsel has referred to paragraph 1 of the written statement which has been reproduced above. From this averment it is clear that the execution of agreement by the appellant No.2 has been admitted. The only plea raised by him is that he has executed this agreement as an office Secretary of the Bumhrouli Co-operative Housing Society, and in fact it was this Society which is the tenant. The agreement is very clear in 'terms. It has clearly specified the appellant No.2 as a tenant without in any manner mentioning that he was acting as a Secretary of Bamhrouli Co-operative Housing Society and has executed the agreement in that capacity. In these circumstances, when the execution of agreement is admitted by the appellant No.2 the question is, whether the preliminary issue should have been framed by the Controller. The learned counsel has referred to P L D 1971 S C 124; 1965 P L C 681 and P L D 1968 Kar. 869. It is well-settled that where the relationship of landlord and tenant is denied by the tenant, the Controller should frame a preliminary issue and decide it first. But this principle will not be applicable in cases where the tenant has raised this issue merely to delay the proceedings. If on the basis of pleadings, the Controller comes to the conclusion that the preliminary issue raised by the tenant does not prima facie seem to be correct and is completely contrary to the record or agreement, he can proceed with the matter without even framing a preliminary issue. In the present case, the same situation has arisen. The appellant No.2 admitted the execution of the agreement, but pleaded that his intention was to execute the agreement on behalf of Bamhrouli Co-operative Housing Society, and he has signed it as its office Secretary. There was nothing to hinder the appellant No.2 to mention all these facts in the agreement itself. The fact that it has not been mentioned proves that he had executed the agreement in his personal capacity. The appellant No.2 wanted to disprove the contents of agreement by oral evidence.

Mr. Hamid Ali the learned counsel for the appellant has contended that as the agreement is not in compliance with the provision of section 5 and 6 of the Sind Rented Premises Ordinance it is not a valid agreement of tenancy. Section 5 provides that the agreement of tenancy should be executed before the Controller of the area or before a 1st Class Magistrate. Such attestation is lacking in this agreement. However where the agreement of tenancy has ceased to be valid as provided by Sections 5 and 6 a landlord is entitled to eject the tenant. Therefore, compliance with section 5 will be more material for the purposes of sections 6 and 15(2)(i) to show that the agreement of tenancy has ceased to be valid. In the present case the appellant has admitted the execution of agreement, and therefore, even if it is not attested by the relevant authorities, it will neither nullify the agreement of tenancy nor the tenancy will be void.

The appeal is dismissed in limine.

M . A . K . Appeal dismissed.

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