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First Rent Appeal No. 24 of 1985 and Revision Application No.189 of 1983, decided on 18th May, 1987.

---Ss.15 & 21--Landlord and tenant, relationship of--Tenant denying relationship of landlord and tenant--Rent Controller without first determining issue of relationship ordering ejectment from demised premises on failure of tenant to comply with tentative rent order--Order of Rent Controller ejecting tenant, held, suffered from obvious error and was liable to be set aside--Rent Controller, was vested with jurisdiction to try cases between landlord and tenant and when such - relationship between parties was denied it was incumbent on him to first determine such issue and then proceed further in the matter- Order of Rent Controller set aside and case remanded to Rent Controller for fresh disposal in accordance with law.

Habibullah v. Bawa Vasdevgir Chelo Shambhugir P L D 1968 Kar.869 rel.

---S.25--Civil Procedure Code (V of 1908), S.115--Sind Rented Premises Ordinance (XVII of 1979), Ss.15 & 21--Revision--Respondent filing suit before Small Causes Court for recovery of a certain sum against appellant. petitioner which was stated to be due on account of arrears of rent payable to respondent--Appellant denying in his written statement claim of respondent on ground that. a rent case pending between parties was still to be decided--Appellant also denied relationship of landlord and tenant and stated that somebody else was actually in possession of property from whom respondent accepted rent also, evidence was also led on this point--Small Causes Court failing to consider the aspect and proceeded on a different premises i.e. whether appellant was a tenant of respondent in respect of premises and decreed suit--Decree set aside and case remanded for fresh disposal in accordance with law.

Mumtaz Ellahi Shaikh for Appellant.

S.A. Qadri for Respondent.

Date of hearing: 28th April, 1987.

By this judgment I propose to dispose of F. R . A . No.24 of 1985 and R . A . No.189 of 1983, which were ordered to be heard together.

The circumstances under which F.R.A. No.24 of 1985 has arisen, are that the respondent who is landlady of the premises situated on Plot No. B/249, Block 'J', North Nazimabad, Karachi, filed an ejectment application against appellant Muslim Raza, claiming that he was her tenant on a monthly rental of Rs.800 and had failed to pay her rent since 5-4-1978 and had also sublet the premises besides making additions and alterations therein which had resulted in impairment of their value and utility. It was also averred that the premises were required by the appellant in good faith, by her as she was proposing to get her son married and the then existing accommodation in her occupation was not sufficient for the purpose.

The appellant filed written statement wherein the relationship of landlord and tenant was denied by him. According to him, he was no more in occupation of the premises, as since 5-7-1976, after expiry of the original Term of tenancy, he had left the premises and since then his brother-in-law, Doctor Abdul Raza Khan, who was occupying the premises with him as a joint tenant, had exclusively become the respondent's tenant in respect of the premises.

After filing of the written statement the matter proceeded before the learned Controller and although evidence was recorded in the case in regard to the preliminary issue in respect of the relationship of landlord and tenant between the parties, but decision on the point was deferred by the predecessor of the learned Controller till such time when evidence was fully led by the parties before the learned Controller and the matter was ripe for a final decision.

It then appears, that on 21-12-1983, the learned Controller passed a tentative Rent Order directing the appellant to deposit the arrears of rent in Court from April, 1978 to November, 1983. at the rate of Rs.800 per month within three months from passing of the tentative rent order. The learned Controller also directed the appellant to deposit future monthly rent at the rate of Rs.800 per month on or before 10th of each succeeding month. The learned Controller further allowed adjustment of rent which, had been deposited in Court through Misc. Rent Case No.1477/79.

After passing of the rent order, it appears, that the appellant filed a review application before the learned Controller, requesting him to review the order passed on 21-12-1983. Subsequent to the filing of such review application, an application, dated 12-3-1984, was also filed by the respondent under the provisions of section 16(2) of the Sind Rented Premises Ordinance, 1979 requesting the learned Controller to strike off defence of the appellant as according to the respondent, he had failed to, comply with the tentative rent order. A report in this respect was called for from the. Nazir of the Court who confirmed that no amount had been deposited by the appellant in the Rent Case No.2916/1978, and thereafter without determining the objection taken by the appellant in regard to the relationship of landlord and tenant between the parties, the learned Controller directed the appellant to hand over peaceful and vacant possession. to the respondent within 120 days from the date of passing of the order. The review application earlier filed by the appellant was also dismissed by the learned Controller by the same order.

The facts giving rise to R . A . No.189 of 1983 are, that the respondent filed suit before the learned Small Causes Court, Karachi for recovery of Rs.4,000 against the appellant claiming them to be due on account of arrears of rent payable by the appellant. The appellant filed written statement wherein the claim of the respondent was denied, as according to him, a rent case pending between the parties was still to be decided. The relationship of landlord and tenant between the parties was also denied and it was further averred that the real ,tenant of the premises in question had already paid rent to the respondent from 5-7-1976 which had been accepted by the respondent. The learned Small Causes Court, however, decreed the suit of the respondent with costs and hence the revision application.

I have heard Mr. Mumtaz Ellahi' Shaikh, learned counsel for the appellant in the two cases and Mr . S. A . Qadri, learned counsel appearing on behalf of the respondent.

After going through the order passed by the learned Rent Controller in F.R.A.No.24 of 1985 and the judgment of the learned Small' Causes Court in R.A.189 of 1983, I find that the same cannot be sustained. As far as the order impugned in F.R.A.No.24 of 1985 is concerned, the appellant had clearly denied the relationship of landlord and tenant between himself and the respondent and without first determining the issue the learned Controller was not competent to direct ejectment of the appellant from the demised premises. It may be pointed out that the learned Controller has been vested with jurisdiction to try cases between the landlord and the tenant and when such relationship between the parties is denied it is incumbent on the Rent Controller to first determine such issue and then proceed further in the matter. Although no authority is needed on the point, nevertheless, reference in this respect may be made to Habibullah v. Bawa Vasdevgir Chelo Shambhugir P L D 1968 Kar.869. I have therefore, no doubt in my mind that the order passed by the learned Controller suffers from an obvious error and the same is liable to be set aside.

Turning to the judgment of the Small Causes Court, impugned through R.A.No.189 of 1983, I also find the same to be equally erroneous. The appellant in his written statement has clearly stated that rent had been received by the respondent in respect of the property in question from its actual tenant. It has been pointed out R by Mr. Mumtaz Ellahi Shaikh that evidence was also led by the appellant in support of such plea; however, from the judgment of the learned Small Causes Court it clearly, appears that this aspect of the matter, has not been considered at all by the learned Judge who has altogether proceeded on a different premise, viz. whether the appellant was a tenant of the respondent in respect of the premises.

The upshot of the entire discussion is, that both the order passed by the learned Rent Controller, dated 12-11-1984, as well as the judgment passed by the learned Small Causes Court, dated 31-7-1983, are set aside and both the cases are remanded to the C learned Controller and the learned Judge Small Causes Court respectively for fresh disposal in accordance with law. Mr. Hussain Adil Khatri,, learned counsel appearing on behalf of the Intervenor, Dr.Ubaidur Raza Khan, has drawn my attention to an application filed by the latter under Order 1, Rule 10, C.P.C. for being joined as a party in the rent appeal. However, since the matter is being remanded to the learned Controller for disposal, this application may be considered by him, which would, however, be subject to all just exceptions. The parties are left to bear their own costs.

M.Y.H./M-271/K Cases remanded.

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