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Ss. 13, 13‑A & 15‑Application for ejectment ‑Relationship of landlord and tenant‑Two shops were let on rent to tenants by one 'SS', predecessor of applicant landlord‑Receipt for rent upto filing of ejectment applications used to be issued by firm namely 'SS & Sons' ‑Applications for ejectment in respect of both shops were filed by legal representatives of deceased 'SS' and not by said firm‑Tenants taking objection that applicants were not their land lords and that requirement of notice under S. 13‑A of Ordinance 1959 was not fulfilled‑Rent Controller deciding issue of relationship of landlord and tenant in affirmative and ordering ejectment of tenant Held, by their own conduct landlords made tenants to believe that shops in dispute were owned by 'SS & Sons' acid not by 'SS' and that tenants were under genuine impression that they were tenants of 'SS'‑Entire blame, therefore would not lie on tenants' shoulders and it was not malicious denial of relationship of landlord and tenant‑Mistake having been contributed by both parties, tenants could not be made to suffer‑Relationship of landlord and tenants declared to be existing between parties‑‑Order of Rent Controller to the extent of ejectment of tenants from shops set aside and case remanded to Rent Controller with direction to proceed in ejectment applications on merits.

Iftikhar Muhammad for Appellants.

K. N. Kohli for Respondents.

Date of hearing : 20th October, 1985.

The facts of the present F. A. O. and F. A. O. No. 81 of 1984 Shahzada Sultan Mahmood v. Mst. Sadozai and others are the same. The respondents in both these appeals are also the same. The Judgment in the present F. A. O. No. 80 of 1984 will also dispose of F. A. O. No. 81 of 1984 Shahzada Sultan Mahmood v. Mst. Sadozai and others.

2. The facts of both the appeals are that Mst. Sadozai and others respondents in both the appeals are owners of two shops bearing Nos. I‑6/ 35‑411 and 1‑6135‑A (412) situate on Jinnah Road, Quetta. Syed Mahmood Shah Bukhari predecessor‑in‑interest of appellants in F. A. O. No. 80 of 1984 and Shahzada Sultan Mahmood appellant in F. A. O. No. 81 of 1984 are tenants of each shop respectively. The said tenants committed default in payment of rent of their respective shop for three ‑months since November, 1982. The landlords also required both the shops for their personal use. Mst. Sadozai and other respondents herein, therefore, instituted two separate applications on 12‑2‑1983 in the Court of Senior Civil Judgment Controller Quetta for ejectment of the appellants from both the shops. The tenants, who are appellants herein, in their separate written statements, contended. inter alia, that the shops in question belonged to the firm Messrs Syed Salah‑ud‑Din and Sons and the application for ejectment could not proceed without dissolution of the firm and that the landlords had not given notice as required by section 13‑A of Ordinance VI of 1959. On these pleadings the learned Rent Controller framed the following preliminary issue in both the rent applications :‑

Whether there exist relationship of landlord and tenant between the applicants and the respondent.

After recording evidence, as produced by the parties, the learned Rent Controller decided the preliminary issue in the affirmative vide order dated 15‑10‑1984 and ordered the tenants to hand over vacant possession of the premises to the landlords within two months time. Feeling aggrieved both the tenants have come up with the present two first appeals.

3. I have heard learned counsel for the parties at length and have perused the record.

4. It is common ground between the parties that both the shops were let on rent to the appellants by Syed Salahuddin, predecessor of the respondents in both the appeals. However, the receipts of rent issued to both the appellants were by Syed Salahuddin and Sons. Syed Salahuddin is reported to have died in early seventies but receipts of rent upto the A institution of the ejectment applications were used to be issued in the name and style of "Syed Salahuddin & Sons". It is also a fact that both the ejectment applications have been instituted by the legal representatives of deceased Syed Salahuddin and not by Syed Salabuddin and Sons in whose name the receipts are being issued.

5. The facts which emerge from the above paragraph are that originally Syed Salahuddin was landlord of both the shops but receipts of rent were used to be issued by Syed Salahuddin and Sons, and the ejectment applications have been filed by the legal representatives of Syed Salahuddin. It appears that on the basis of the receipts both the appellants herein took up the objection about the respondents herein not to be their landlords and the further objection of requirement of notice under section 13‑A of the Ordinance. By their own conduct the landlords made the tenants to believe that the shops in dispute were owned by Syed Salahuddin and Sons and not by Salabuddin alone. The appellant were, therefore, under the genuine impression that they were tenants of Syed Salabuddin and Sons and that is why they took up the objection and the entire blame does not lie over their shoulders. This does not appear to be a malicious denial of relationship, of landlord and tenant on their part. The mistake appears to be from both the sides. Although the appellants were tenants under deceased Syed Salahuddin but they continued to accept rent receipts issued by Syed Salahuddin and Sons. If the appellants had known the factual position they would not have dared to deny the relationship of landlord and tenant. For this genuine mistake, about which the respondents herein have also made some contribution,1 the appellants cannot be made to suffer.

6. For the aforesaid reasons, although I would hold that relationship of landlord and tenant exists between the parties and would decide the preliminary issue accordingly but I would not order the ejectment of the appellants from both the shops in dispute. The impugned order of the learned Rent Controller is partially set aside to the extent that the c preliminary issue is decided to the affirmative but is set aside in so far as it pertains to the ejectment of the appellants. Both the appeals are partially accepted and the learned Rent Controller is directed to proceed in the ejectment applications on merits. There shall be no order as to costs.

M. Y. H.

Appeals partly accepted,

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