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First Rent Appeal No.1100 of 1984, decided on 12th August, 1986.

‑‑‑Ss. 15 & 21(1)‑‑Relationship of landlord and tenant‑‑Proof‑‑Photostat copy of letter purported to have been written by estate agent to landlord, produced in evidence by landlord to show that premises in dispute was let out to tenant by estate agent on his behalf, remained unproved either by examining or offering for cross‑examining author of that letter‑‑Letter simply showed that tenements mentioned therein were let out through estate agent, but did not show to whom they were let out‑‑Letter in question, held, could not be read against tenant.

‑‑‑Ss. 5, 15 & 21(1)‑‑Relationship of landlord and tenant, creation of‑‑Tenancy being special relationship between owner of property and tenant, same, held, would be created either by agreement between parties or by force of any statute.

‑‑‑Ss. 5, 15 & 21(1)‑‑Relationship of landlord and tenant‑‑Existence of tenancy agreement between parties‑‑Question of title‑‑Proper forum to investigate‑‑Question whether agreement creating tenancy, existed between parties, being crucial and complicated one, calling for full investigation before regular forum in form of suit for specific performance or by any other regular suit, Rent Controller, held, ought to have withheld his hands and should have directed parties to agitate dispute before regular Curt‑‑Inquiry on question of title by Rent Controller was permissive and not obligatory.

‑‑‑Ss. 15 & 21(1)‑‑Relationship of landlord and tenant‑‑Jurisdiction of Rent Controller‑‑Rent Controller could decide question of relationship of landlord and tenant on admitted facts only‑‑Where such relationship had not at all been established between parties, Rent Controller, held, should avoid assuming jurisdiction to investigate and decide such complicated issue.

‑‑‑Ss. 15 & 21(1)‑‑Relationship of landlord and tenant‑‑Proof‑ Relationship of landlord and tenant between parties being crucial and complicated one mere word of landlord, held, would be too flimsy and unreliable a ground to raise presumption in favour of landlord and brush aside version of tenant denying such tenancy.

Badrudduja Khan for Appellant.

Wajeehuddin Ahmed and Muhammad Yousuf for Respondents.

Date of hearing: 12th August, 1986.

In this appeal the short point involved is whether the respondents, who are admittedly the owners of the property, had inducted the appellant as tenant, as alleged by them or the respondents came in possession of the property under an agreement of exchange of the property with some other property belonging to them. In other words this would be a case to see whether the agreement of exchange of the property, if any, is to be enforced and if so, against whom. Can such a relief be given under the Rent Ordinance.

2. The learned Rent Controller on the pleadings of the parties and on denial of the relationship of landlord and tenant rightly framed the issue to this effect which is as under:‑‑

"(1) Whether the relationship of landlord and tenant exist between parties "

Unfortunately the learned Rent Controller has answered this issue in affirmative without any evidence merely on the bare allegation of the landlord /applicant. The landlord made an effort to prove tenancy by producing Exh. B14 dated 11‑6‑1980. This document is a counterfoil of the receipt alleged to have been issued by the landlord to the appellant/ tenant. It is alleged by the landlord that the appellant /tenant had paid rents to the landlord for which a receipt was issued and Exh.B/4 is the counterfoil of that receipt. But this assertion is hotly contested by the appellant. It is vehemently denied that any rent was ever paid to the landlord /respondent. The counterfoil Exh.B/4 is the document of the respondent /landlord and its contents cannot be read against the appellant. If Exh.B/4 is eliminated nothing remains to prove the tenancy which is denied by the appellant.

3. It was alleged by the respondent that the property was let out by the respondent /landlord to the appellant through an Estate Agent named Ashraf Suleman. This Estate Agent has not been produced by the landlord to support his version. Thus, there is no oral evidence either to prove that the appellant was admitted to the premises as a tenant. The photostat copy of a letter dated 10‑1‑1980 has been produced. This letter is purported to have been written by the Estate Agent to the landlord Muhammad Ismail. In the first instance this photostat has not been properly proved. The author has not been examined nor offered for cross‑examination. Secondly even this letter' does not show that the Shops Nos. 2/G, 3/G and 1/F, 2/F mentioned in this letter were let out to the appellant. This letter merely states that some tenements mentioned therein were let out through him. To whom they were let out, is not mentioned. This document cannot be read against the appellant /tenant.

4. Tenancy is a special relationship between the owner of the property and a tenant. This relationship between tenant and landlord is created either by agreement between the parties or by force of any statute. Surely it is not a case falling in the latter category and it is to be seen whether any agreement between the parties creating tenancy is proved in this case In my opinion no such agreement has been proved and it still remains debatable whether the version of the landlord is correct or the version of the tenant is correct This being a crucial and complicated question calling for a full investigation before a regular forum, perhaps in the form of a suit, for specific performance or any other regular suit, the Rent Controller ought to have withheld his hands and should have directed the parties to agitate the dispute before a regular Court. This would have been in consonance with the view expressed by the Supreme Court in several cases. The case of Rehmatullah v. All Muhammad and another reported‑in 1983 S C M R 1064 the following observations made at page 1081 are noteworthy and may profitably be reproduced below:‑

"The result in practical terms accordingly may be summed up as follows. The Rent Controller who was dealing with a petition for ejectment of an' occupant of a property by a party claiming to be his landlord, a claim which was based on the plea of ownership, should have proceeded to decide all the issues relevant to the said question, which incidentally may also have included a decision on the question of title. This was done by the Rent Controller. If his appellate authority considered that a deeper and a more detailed examination of the last mentioned question was necessary for setting this matter and also found that the title of the alleged landlord did suffer from some doubt, he should in these circumstances, have dismissed the ejectment petition, leaving the appellant before him, to move the civil Court for a declaration of his title."

In my humble opinion their Lordships observations regarding inquiry on the question of title by Rent Controller are permissive and not obligatory. I venture to say that the course ordained to be adopted by the learned appellate authority can be followed at the level of the Rent Controller himself. This would save time of the Court and expenses of the parties. Needless to add that the perimeter of power available to the Rent Controller is in no way inferior to that enjoyed by the appellate authority. What the appellate authority has been directed to do in the judgment can in my humble opinion more beneficially be done by the Rent Controller himself namely to leave the parties to go to the civil Court. I would respectfully follow the dictum laid down in this judgment.

I would also like to refer to a case reported in P L D 1986 Kar. 258 in which I had rendered the following opinion at page 261:‑

"Indeed in this very limited jurisdiction these questions which require deep study of the facts and close analysis of the surrounding circumstances resulting in the breach cannot be investigated. We have neither the means nor the mandate to undertake such an enquiry. It is well established that the Rent Controller exercising powers under a special statute is not a substitute of a regular Court. His jurisdiction is conned merely to protect the possession of a tenant occupying premises let out to him and in case of dispute between a landlord and a tenant to hold an enquiry whether the tenant has suffered any disability under section 13(2) (3) of the Rented Premises Ordinance, thus disentitling him from the protection of the rent laws Le section 13 (1) of the West Pakistan Urban Rent Restriction Ordinance of 1959. If during such an enquiry the tenant denies or throws away the cloak of tenancy, in my humble opinion he voluntarily rejects the protective shield of the rent laws, and as a consequence cannot be permitted to enjoy the benevolant statutory cover of the provisions of section 13, subsection (1) of the West Pakistan Urban Rent Restriction Ordinance, 1959 which is to the following effect:‑

(1) A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and, whether before or after the termination of the tenancy, except in accordance with the provisions of this section. "

On account of denial of tenancy which was the only shield available to him by force of special Statute it would no more be necessary for the owner of the premises to prove that his desire to acquire possession of a property was inspired with good faith etc. etc. Denial of relationship of landlord and tenant by the tenant in rent proceedings would immediately dissovle all the clots which were obstructing free flow of rights enjoyed by an owner under the Transfer of Property Act. The owner in such a situation would be free to exercise all rights incidental to his ownership of the property and he would be free to throw away the occupant without any difficulty under the normal laws of the land. In my humble opinion this is a plain and straight approach to the problem.

It must be remembered that denial of tenancy is a question of fact and not a question of law. As such an admission on the part of the tenant would amount to estoppel for all times and the tenant cannot resile from this position in any other proceeding that may be taken against him by the owner of property in any Court.

Suppose the Rent Controller chooses to follow a different course and proceeds to determine the question of relationship between the landlord and tenant even then his jurisdiction is limited for obvious reasons. He is a persona designata exercising limited powers under a special Statute so much so that even the Civil Procedure Code and the Evidence Act are not applicable to the proceedings before him. In such a limited jurisdiction all that is open to him is that in order to assume powers under the Act he must satisfy himself that the parties are appearing before him as landlord and tenant and not as owners and occupants or in any other capacity. He would, therefore, superficially investigate the matter and try to discover from prima facie evidence whether such a relationship exists. But if he finds that the question is involved and intricate and such a relationship is not to be found on the plain and prima facie appraisal of facts placed before him, he should abstain himself from embarking on a search of title of the owner. For instance it does no lie with the province of the Rent Controller to investigate which of the parties in a contract of purchase has committed breach of the contract, or in case of mortgages with option to purchase which of the parties to the contract was at fault. These are matters to be decided by a regular civil Court. The Rent Controller can merely decide the question of relationship of landlord and tenant on admitted facts. In cases where he feels that the denial of relationship by the tenant is dishonest advanced merely to delay the proceedings, he should proceed on the facts speaking louder than the dishonest plea of the tenant. Complicated issues of ownership and allegations or counter‑allegations of breach of agreements entered between the parties during an admitted or established tenancy can be ignored by the Rent Controller to be raised and adjudicated before the regular Courts.

Issues requiring deep analysis and elaborate enquiries should be avoided as any findings recorded by Rent Controller as a result of such an enquiry would neither be desirable nor even binding on any one in any civil Court."

I hold the same view and in my opinion the Rent Controller has assumed jurisdiction in a case in which the relationship of landlord and tenant had not at all been established. The mere word of the landlord D is too flimsy and unreliable a ground to raise a presumption in favour of the landlord and brush aside the version of the tenant denying the tenancy. I would, therefore, allow this appeal and set aside the order E of ejectment passed by the learned Rent Controller. The parties may pursue any remedy elsewhere if they choose to do so.

H. B. T. Appeal allowed.

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