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Second Appeal No.91 of 1978, decided on Ist September, 1981.

‑‑‑ S.100‑‑Second appeal against concurrent judgment and decree‑‑Maintainability of‑‑Appellant in former rent case denied title of respondent in respect of rented premises and claimed that he was in possession thereof in his own right‑‑Rent Controller holding that no relationship of landlord and tenant existed between parties, dismissed ejectment case and decision of Rent Controller was upheld by Appellate Authority‑‑ Respondent, after final dismissal of rent case instituted present civil suit against appellant for possession and mesne profits mentioning in plaint that in spite of existence of tenancy agreement between parties appellant had denied title of respondent in respect of rented premises‑‑ Mention of tenancy agreement in plaint being only incidental and to complete facts forming background of litigation, contention of appellant that decree for possession and mesne profits could not be passed by civil Court as case of respondent fell within purview of Sind Rent Restriction Ordinance (XVII of 1979) in which civil Court had no jurisdiction, held, was untenable in circumstances of case‑‑High Court in exercise appellate jurisdiction upholding decree for possession and mesne profits concurrently passed by two Courts below and dismissed appeal.

S.S. Akbar for Appellant.

Zafar Alam Khan for Respondent.

Date of hearing: Ist September, 1981.

The appellant has challenged the Judgment and decree for possession and mesne profits passed by Civil Judge and confirmed in appeal by the Vth Additional District Judge, Karachi, on the sole ground that the Courts below having found that the appellant was inducted into the premises by the respondent as a tenant could not pass the decree for possession and mesne profits in view of provisions of Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. In order to appreciate the contention of the learned counsel for the appellant it is necessary to state here the facts forming the background which led to the filing of the suit for possession and mesne profit by the respondent.

The appellant was inducted into the premises constructed on a portion of Plot No.1765 Survey No.1448, Pirabad Golimar, Karachi, by the respondent. This plot of land is owned by the K.M.C. but structure thereon has been raised by the respondent. The appellant after being inducted into the premises refused to pay rent to the respondent whereupon an application under Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, was instituted against the appellant by the respondent In the year 1967 being R.C. No.343/1967 on the ground of default in payment of rent. The appellant denied the title of the respondent to the above promises in the rent proceedings and claimed that he was in possession thereof in his own right. On a preliminary issue framed in the rent proceedings regarding existence of relationship of landlord and tenant between the parties the Rent Controller found that appellant was not the tenant of the respondent and dismissed the ejectment case instituted by respondent. An appeal by the respondent against the order of Rent Controller holding that there was no relationship of landlord and tenant between the parties also failed. After availing of the remedy by way of appeal the respondent filed Suit No.2277 of 1969 for possession and mesne profits against the appellant. However, in the plaint, the respondent, while stating the ground on which possession and mesne profits were claimed, stated that the appellant was originally inducted by him into the premises as a tenant under a written agreement of tenancy but in the rent proceedings he denied the title of respondent and set up adverse title and therefore he was liable to be dispossessed from the property as a trespasser. The appellant once again denied in his written statement that he was the tenant of respondent and asserted that he was holding the premises in his own right. The trial Courts on assessment of the documentary and oral evidence in the suit reached the conclusion that the appellant was inducted into the premises by the respondent as a tenant and granted a decree for possession and mesne profits. Although, the reason for granting the decree for possession after having observed that the appellant was inducted into the premises as a tenant is not given but the reason is too obvious as the appellant all along denied the title of the appellant and therefore forfeited the tenancy by virtue of such denial. The first appellate Court, however, noted the above contention of the appellate in his Judgment and observed that mention of tenancy and agreement of tenancy in the circumstances of the case was unavoidable and that this fact could not affect the suit of appellant for possession and mesne profits. The learned counsel for the appellant urged that th*e moment the Civil Judge and the First Appellate Court had reached the conclusion that the appellant was inducted into the premises by he respondent as a tenant, they should have stayed the hand in the matter and directed the parties to have recourse to proceedings under Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. It is accordingly submitted by the learned counsel that the decree for possession in these circumstances was a void decree. The contention of the learned counsel has not impressed me at all. The respondent never claimed possession of the suit premises in the suit on the basis that the appellant was his tenant. The suit for possession and mesne profits was filed after the appellant had denied the title of respondent and Rent Controller found that appellant was not the tenant of respondent. In these circumstances the mention of tenancy agreement between the appellant and respondent I" the plaint was only incidental and to complete the facts for the In background of litigation. It was never the case of appellant at any stage of proceeding that he was tenant of the premises and therefore he could not fall back upon the observation of the trial Court that he was inducted in the premises initially as a tenant, to contend that the parties should now be directed to go to Rent Controller. This will be quite inconsistent with the stand taken by him both before the Controller and the Civil Court. I am therefore, satisfied that the Courts below rightly granted a decree for possession and mesne profits to the respondent in the circumstances of the case. Mere fact that the trial Judge failed to mention in so many words in his Judgment that the appellant forfeited the tenancy by virtue of denial of tenancy and therefore respondent was entitled to a decree for possession and mesne profits, is not sufficient reason to set aside the decree in the present case. The First Appellate Court dealt with this aspect quite satisfactorily in its judgment.

There is no merit in this appeal which is accordingly dismissed with costs.

H.B.T/A‑92/K Appeal dismissed.

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