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First Rent Appeal No. 652 of 1982, decided on 8th December, 1983.

-----S. 21‑Ejectment‑Relationship of landlord and tenant‑Tenant besides denying relationship of landlord and tenant also pleading case on merits requiring consideration‑Rent Controller after arriving al conclusion that relationship of landlord and tenant existing between parties striking off defence of tenant and ordering ejectment‑Order of ejectment set aside and case remanded to Rent Controller for deciding issues on merits also and then make a final order‑Held: It is not an absolute rule that in every case where this relationship is denied and Rent Controller comes to conclusion that plea taken by tenant frivolous, defence of tenant should be struck off automatically without recording further evidence.

S. Inayat Ali for Appellant.

Ashiqalf Abdullah for Respondents.

Date of hearing: 8th December, 1983.

This appeal has been filed by the appellant/tenant. On 2‑11‑1976 the predecessor‑in‑interest of the present respondents filed ejectment Case No. 4455 of 1976 for the ejectment of the appellant/tenant on the grounds of default in the payment of rent from July to September, 1976, subletting the premises and shifting to a house in P. E. C. H. Society, and for personal requirement of the landlord and his family. During the pendency.of the ejectment application Mahmood Mian, the landlord, died and the present respondent being his legal heirs were brought on record as applicants in the ejectment case. Written statement was filed by the appellant challenging the relationship of landlord and tenant between the parties. It was submitted that in 1971 one Nazar Muhammad had rented out the property to the appellant at a monthly rent of Rs. 90 and the rent was collected by the said Nazar Muhammad and his son Muhammad Hanif. According to the appellant, he was never a tenant of Mahmood Mian, and if at all he had acquired any interest in the property in question, being a flat in Soldier Bazar, Karachi, the appellant was never served with any notice under section 13‑A of the 1959 Rent Ordinance. On merits also the ejectment application was defended and it was stated that the appellant had tendered rent to the landlord, that is not Mahmood Mian but Nazar Muhammad/Muhammad Hanif and that the rent had been received by them on 12‑6‑1976 upto June, 1976 and thereafter as the rent was not collected the appellant tendered the rent through money order which the landlord wrongly declined to accept and later on further money orders were sent but they were also not accepted. The case of subleting and personal requirement was also denied.. A preliminary issue about the relationship of landlord and tenant was framed by the Rent Controller and on this issue evidence was recorded. On behalf of the respondents, Muhammad Hanif son of Nazar Muhammad was examined and on behalf of the appellant, the appellant himself gave evidence. By the ejectment order, dated 3‑5‑1982, the learned Rent Controller decided the preliminary issue in favour of the respondents holding that there exists relationship of landlord and tenant between the parties. Then the ejectment application was finally disposed off by the Rent Controller in the following words:‑--

"In view of my finding about the relationship between the parties, there is no need to hold further inquiry regarding the default already committed and, therefore, this application is allowed and the opponent is directed to band over the vacant possession of the suit premises to the applicant within 60 days from today."

Being aggrieved with the ejectment order, dated 3‑5‑1982, the appellant has filed this First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979. I have heard Mr. S. Inayat Ali, learned counsel for the appellant and Mr. Ashiqali Abdullah, learned counsel for the respondents.

2. It was argued on behalf of the appellant that the evidence on preliminary issue shows that right from the very beginning of the tenancy till the filing of the ejectment case, rent was being collected/recovered either by Nazar Muhammad or his son Muhammad Hanif and all the rent receipts produced also show that the signatures of the recipients are that of Nazar Muhammad or Muhammad Hanif and there is nothing in the rent receipts which shows that Mahmood Mian was the owner of the owner/landlord of the premises in question. On the other hand it was argued by Mr. Ashiqali Abdullah, learned counsel for the respondents, that money orders had been sent by the appellant addressed to landlord/landlady care of Mahmood Mian and this evidence plus other evidence on record shows that the appellant was aware that the real owner/landlord of the premises was Mahmood Mian and not Nazar Muhammad or Muhammad Hanif. I do not want to make any observation on the question whether it had been correctly decided by the Rent Controller that relationship of landlord and tenant exists between the parties. However, it may be stated that from the evidence on record it appears that the plea taken by the appellant that the relationship of landlord and tenant did not exist between the parties was not frivolous. Then the appellant had taken pleas on merits in his written statement about the three grounds on which ejectment has been sought including the ground of default. In my view in these circumstances, after having decided the preliminary issue in favour of the respondents, the Rent Controller should have asked the parties to lead evidence on the merits of the case and then passed the final order accepting or rejecting the ejectment application.

3. It may be observed that it is not an absolute rule that in every case where relationship of landlord and tenant is denied by the tenant and the Rent Controller comes to the conclusion that relationship of landlord and tenant exists between the parties, an ejectment order must follow automatically without recording further evidence. If the plea about the denial of relation ship of landlord and tenant taken by the tenant is frivolous and without any foundation, the Rent Controller may pass a final order of ejectment as soon'. as he decides the preliminary issue in favour of the landlord. But in other cases notwithstanding the denial of relationship of landlord and tenant, where the tenant pleads a case on merits also which requires consideration, the defence of the tenant should not be struck off automatically and the ejectment order passed but evidence should be recorded on the grounds taken in the ejectment application and then a final order passed on merits.

4. In my view in the facts and circumstances of the instant case the defence of the appellant should not have been struck off automatically without recording further evidence, after the Rent Controller decided the preliminary issue in favour of the respondents. I may further observe that by the impugned order the respondents have also been prejudiced as there is no finding by the Rent Controller on the ground of subletting and personal requirement taken in the ejectment application. This is a fit case for remand to the Rent Controller for deciding the case on merits.

5. As a result, F. R. A. No. 652 of 1980 is allowed to the extent that the order directing the ejectment of the appellant is set aside and the case is remanded to the concerned Rent Controller for recording further evidence that may be adduced by or on behalf of the parties and deciding the case on merits, after notices to both the parties. It is further directed that the concerned Rent Controller will finalize this case within six months of the receipt of record by him. In the circumstances it is not necessary to give any finding in this appeal on the issue relating to relationship of landlord and tenant between the parties. If a final order is passed against the appellant by the Rent Controller and if an appeal against that ejectment order is filed by the appellant, it will then be open to him to raise pleas challenging the decision of the Rent Controller on the preliminary issue about relationship of landlord and tenant between the parties.

There will be no order as to costs.

M. Y.H. Appeal partly allowed.

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