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First Rent Appeal No. 567 of 1984, decided on 30th October, 1986.

‑‑S. 13‑‑Sind Rented Premises Ordinance (XVII of 1979), S.15‑ Ejectment‑‑Tenant raising plea that a mortgage agreement existed in his favour which contained a stipulation whereby tenant was not under obligation to pay rent to landlord‑‑Plea of tenant had already been considered by Rent Controller who passed eviction order‑‑Appeal against order of eviction dismissed.

Muhammad Saleem for Appellant.

S.H. Fani for Respondent.

Date of hearing: 30th October, 1986.

This appeal is directed against the order passed by the learned Xth Rent Controller, Karachi, dated 31‑3‑1984, ordering the appellant to hand over vacant possession of the premises in question to the respondent within two months from passing of the order.

Briefly stated, the facts are that the respondent was the landlord of tenement, bearing No. 9‑29, P.I.B. Colony, Karachi, wherein the appellant was his tenant at a monthly rent of Rs.600. On 7‑5‑1978 the respondent filed an ejectment application against the appellant on various grounds. The appellant filed written statement wherein a preliminary objection was raised that there was a mortgage agreement executed between the parties according to which the appellant was a mortgagee in possession. It was further contended that the agreement contained a stipulation whereby the appellant was not under obligation to pay rent to the respondent till such time that the money advanced by the former to the latter had been adjusted. However, when evidence was adduced by the parties the mortgage agreement was not produced in evidence by the appellant. A controversy also existed in respect of tenancy agreement as the agreement alleged by the appellant to have been executed between the parties was not admitted by the respondent. According to him the agreement purporting to be the same as executed between the parties, had been forged. Be that as it may, but when the parties led evidence before the learned Controller, neither of the documents was produced in evidence by the appellant. Thereafter, during the pendency of proceedings before the learned Controller, the appellant filed an application, dated 8‑8‑1983 under section 151, C . P . C . , requesting the learned Controller to refer the mortgage deed and the tenancy agreement alongwith a specimen signature of the respondent to the Handwriting Expert for verification of the respondent's signature. This application was dismissed for non‑prosecution as the appellant had failed to deposit costs in respect of the same. However, another application was filed by the appellant on 28‑8‑1983 to the same effect and the learned Controller on the same day ordered issuance of notice to the other side for hearing of the application. On 6‑2‑1984 the appellant's counsel filed the documents in question before learned Controller for consideration. Thereafter, the case diary indicates that the appellant's application, dated 28‑8‑1983, kept pending before the learned Controller till the time when the matter was finally decided by him by the impugned order.

The main contention of Mr. Muhammad Saleem, learned counsel for the appellant, before this Court is that the learned Controller has fallen into an error, while deciding the ejectment application without passing an order on the appellant's application, dated 28‑8‑1983. According to the learned counsel, the case was fixed for order on this application and not for final disposal and, therefore, the case should be remanded to the learned Controller for disposal of this application first. The contention has been vehemently opposed by Mr. S.H. Fani, learned counsel for the respondent who has contended, that the mortgage agreement had already been considered by the learned Controller in the impugned order. The learned counsel also argued that during the pendency of the case before the learned Rent Controller, the respondent had filed a suit for declaration that the mortgage agreement and the tenancy agreement were forged and such suit has been decreed in favour of the respondent, and, therefore, in view of the judgment of the civil Court, the learned Rent Controller cannot enter into the controversy afresh. As regard the tenancy agreement, it has been further contended by Mr. Fani that since nothing turns on it except for the rate of rent, no useful purpose would be served by remanding the case to the learned Controller.

The contention raised by Mr. M. Saleem has failed to impress me. The mortgage agreement alleged executed between the parties has already been considered in the impugned order. The learned Controller has already expressed his views in respect of this document, therefore, without entering into the question as to its genuineness, even if the case is remanded to the learned Controller for verification of this document, hardly any useful purpose would be served thereby. As far as the tenancy agreement is concerned, I agree with Mr. Fani that nothing turns on it, except the rate of rent: As far as the rate of rent is concerned, this Court has already passed an order fixing tentative rent as Rs.200 per month. In any case, no such controversy in respect of the tenancy agreement exists, which cannot be resolved without referring the same to the Handwriting Expert for his opinion. None of the documents was produced by the appellant before the learned Controller at the time of recording of evidence, therefore, now if he has proceeded to decide the case without taking into consideration they appellant's request made in his application, dated 28‑8‑1983, the appellant has only to blame himself for that. This is an old case as it was filed before the learned Controller in 1978 and I do not think that remanding it at this stage would serve any useful purpose.

I, therefore, dismiss this appeal with costs. However, four months' time is allowed to the appellant to hand over vacant possession of the premises to the respondent subject to his depositing of rent regularly with the Nazir of this Court as earlier ordered.

Before parting with this case it may be mentioned that Mr. S.H. Fani drew my attention to the fact that a final rent order has not been passed so far in the case. However, as already indicated, this Court did pass an order on 2‑12‑1984, requiring the appellant to deposit rent at the rate of Rs.200 per month which was both for the purpose of arrears as well as future rent. Mr. Fani has however, conceded that section 16(1) of the Sind Rented Premises Ordinance, 1979 only contemplates passing of one order which has already been passed. Such order would, therefore, be deemed to be an order under section 16(1) of the Ordinance of 1979, and if according to the respondent he is entitled to higher rent, then he would be at liberty to file a separate suit for recovery of the balance against the appellant.

M. Y. H./5140/K Appeal dismissed.

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