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Civil Petition for Leave to Appeal No. 82‑K of 1986, decided on 18th

June, 1986.

(On appeal from the judgment and order of the High Court of Sind, Karachi, dated 9‑12‑1985, in F.R.A. No. 10 of 1984).

‑‑‑S. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.15‑ Ejectment‑‑Relationship of landlord and tenant‑‑Respondent tenant taking stand that he 'was owner of property by purchase‑‑Petitioners in view of said stand taken by respondent making prayer for permission to withdraw petition as they would like to file a fresh suit or proceedings for respondent's eviction in a competent Court of law‑‑Permission granted and petition dismissed as withdrawn.

Azhar Ali Siddiqui, Advocate Supreme Court and Muzaffar Hassan, Advocate‑on‑Record for Petitioners.

Respondent in person.

Date of hearing: 18th June, 1986.

This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court, dated 9‑12‑1985 by which an appeal filed by the respondent was allowed with the result that the order passed by the Rent Controller directing respondent's eviction from the demised premises was set aside.

Learned Rent Controller passed that order as he held that respondent was owner of the property and the petitioners who were the occupants of the property have failed to pay rent at the rate and for the period claimed by the respondent.

On appeal learned Judge in the High Court, however, took the view that the learned Rent Controller had unfortunately overlooked the fact that it was necessary for the appellants to prove that there existed relationship of landlord and tenant between the parties which fact was not proved and "this is not even attempted in the proceedings (by"the petitioners)". In this connection that is what learned Judge further observed:

"Neither any agreement of tenancy has been produced nor any receipt issued by the landlord to the tenant has been produced to show that such a relations between the respondents, who are undoubtedly the owners of the property over was created. Needless to say that every owner of a property need not necessarily be a landlord within the meaning of the rent law via‑a‑via a person occupying a property belonging to that owner. As there is no material to establish the relationship of landlord and tenant in this case and the version of the appellant (respondent herein) that he has never been a tenant either of Khair Muhammad or the present respondents remains debatable. In this situation, the learned Rent Controller's finding that the relationship of the landlord and tenant exists seems to be presumptive and without any evidence on the record. The appellant (respondent herein) may be a trespasser or may have come in possession in any other capacity but until it is shown that he has paid rents and has occupied the premises under an agreement of tenancy whether written or even verbal, he cannot be treated as a tenant of the respondents.

I would, therefore, set aside this order of the learned Rent Controller and allow this appeal with no order as to costs."

On being questioned as to how in view of the above' findings of fact interference of this Court would be justified, learned counsel for the petitioners submitted that there is no clear finding although oral evidence in this behalf was produced by the petitioners, that the respondent is the tenant of the petitioners in respect of the premises in question.

The position taken by the respondent who appeared in person before us today in response to the notice issued to him is that he is the owner of the property by purchase, and is definitely not a tenant of the petitioners.

In view of the definite stand taken by the respondent as above, learned counsel for the petitioners prayed for grant of permission to withdraw this petition as the petitioners would now like to file a fresh suit or proceedings for respondent's eviction in a competent Court of law.

Permission is granted and the petition is dismissed as withdrawn.

M . Y . H . Petition dismissed.

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