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Civil Revision Applications No.356 and 358 of 1986, decided on 11th January, 1987.

---S.5--Provision of S.5 although directory yet could not be said as completely nugatory--Such provisions, held, were made for purpose of safeguarding tenant or landlord against spurious and baseless allegations in respect of agreements of tenancy.

1986 C L C 613 rel.

---S.15--Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2- Petitioner ejected from premises in question after good deal of litigation claiming that he was put, back into possession on higher rent on basis of fresh tenancy agreement allegedly reached between parties- Petitioner filing suit for permanent injunction--Landlord denying execution of any fresh agreement of tenancy--Neither original agreement of tenancy nor even a receipt of rent paid, produced by tenant which clearly indicated that allegation of fresh agreement of tenancy was hardly tenable--Agreement not shown to have been attested as required by S.5(1) of Ordinance--Held, Appellate Court below was justified in coming to conclusion that there was no cause of action in respect of said suit for permanent injunction--Interference declined by High Court in revisional jurisdiction.

Both the above revision applications and C.M. As are disposed of together as they arise out of similar facts and points involved are the same and the appellate judgment is also the same.

The applicant has felt aggrieved against the order passed by IVth Additional District Judge (South), Karachi on 4-10-1986 dismissing the appeal of the applicant Mubeen Ahmad and the earlier order passed by XIIth Civil Judge (South) Karachi on 17-2-1986 in suit filed by Mubeen Ahmad. The Applicant had been ejected in December, 1985, from the disputed premises on the basis of a compromise after a good deal of litigation. He however, filed a suit for permanent injunction claiming that he had been put back into the possession of the premises again on higher rent on the basis of an agreement made between respondent and Mubeen Ahmad in the same month of December, 1985. Respondent denied the execution of the agreement and alleged that it was forged. He also filed an application under Order VII Rule 11 C.P.C. for rejection of the plaint and that the agreement, upon which the applicant had relied upon, had no validity and that the plaintiff had no cause of action as he had trespassed into shop premises. Execution of agreement was denied. Suit was stated to be barred. The Civil Judge dismissed the suit on the basis that the agreement had no value as it was in violation of section 5 and there was no other document in support of Suit.

The applicant filed an appeal against the rejection of the said plaint, but it was dismissed. The A.D.J. took the view that suit for permanent injunction could only be based on a legal right's violation. But on comparing the admitted signature of respondent with signature on agreement of 16-12-1985, he found that signature differed. He also took note of the fact that only photo stat copy of agreement had been produced by applicant and not the original. He also took note of the fact that no receipt of rent was produced by the applicant. Thus he found that agreement, relied upon by the applicant, was forged and it was also hit by the provisions of section 5 of Sind Rented Premises Ordinance, 1979. He also took the view that there was no necessity for the respondent to take possession if he intended to hand over the same to applicant. Hence he dismissed the appeal.

Mr. Waquar Hussain relied upon 1986 C L C 613, where it was held that the word "shall" used in section 5 of the Sind Rented Premises Ordinance, 1979 was directory and not mandatory and that relationship of the landlord and tenant could be proved by producing certified copies of the registered agreement and original of agreement not compulsorily registerable and that if agreement of tenancy is not in accordance with section 5 thereof, same would be nullity in law and would not be accepted as proof of the landlord and tenant.

There can be hardly any difference of opinion in respect of the general proposition of law laid down in the above case, but it can not be said that the provision of section 5 was completely nugatory. It has to be given some effect. These provisions are made for the purpose of safeguarding the tenant or landlord against spurious and baseless allegations in respect of agreements of tenancy. Particularly in conditions dike the present, the provisions of section 5 are al solutary safeguard arid should not, be ignored completely.

I am of the view that the facts of this case do not warrant the acceptance of this revision application. The respondent had been able to succeed in getting the possession of the disputed shop after a good deal of time and effort and litigation, therefore, it was hardly reasonable to expect from him to give back the possession of the same shop to the applicant and enter into afresh tenancy agreement with him, immediately thereafter. The fact that the applicant has not even produced the original agreement of tenancy nor even a receipt of the rent, which is alleged to have been paid by him to the respondent clearly indicates that the allegation of fresh agreement of tenancy was hardly tenable. Respondent had clearly denied the said agreement of tenant by and the appellant had found difference in signatures and coupled with the fact that the said agreement was not attested by any court as required under section 5(1) of the Sind Rented premises Ordinance went to prove that there was in fact no tenancy agreement between the parties and, therefore, the A.D.J. was justified in coming to the conclusion that there was no cause of action in respect of the said suit of permanent injunction.

I do not, therefore, find any justification to admit this revision application and thereby to force the respondent to under the same torture under which he had been suffering since 1981. Accordingly this revision application is dismissed in limine.

C.M.A. is also dismissed.

M.Y.H./M-123/K Petition dismissed.

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