Find a Lawyer

First Rent Appeal No.179 of 1986, decided on 20th May, 1987.

---Ss.2(f)(j) S: 15--Relationship landlord and tenant--Proof of--By agreement of tenancy duly executed by appellant in favour of respondent appellant had agreed to take shop in dispute on rent- Appellant, held, could not assert that he was not tenant of respondent--Rent Controller on basis of documentary as well as oral evidence on record was fully justified to hold that there existed relationship of landlord and tenant between the parties.

M.M.Pirzada for Appellant.

Waqar Hussain for Respondent. .

Date of hearing: 9th March, 1987.

This is tenant's appeal against the eviction order dated 8-3-1986 passed by the IVth Senior Civil Judge/Rent Controller, Karachi. The respondent /landlord filed eviction application No.2906/85 against the appellant on the grounds of default in payment of. rent and subletting the premises in dispute to his employee Muhammad Akram. The eviction application was contested; on the ground firstly, there existed no relationship of landlord and tenant between the parties and, secondly, that the shop in dispute had been in occupation of Muhammad Akram since last more than twelve years. The Controller granted eviction application. The instant appeal is against the eviction order.

Mr. M. M. Pirzada, the learned counsel for the appellant has contended that the finding of the learned Controller that there existed relationship of landlord and tenant between the parties is contrary to the facts on record.

On the other hand Mr. Mirza Waqar Hussain the learned counsel for the respondent has submitted that the finding is in accord with the evidence on the record.

The respondent averred in para 2 of the eviction application that "at the time of commencement of tenancy i.e. on or about 4th October, 1973, a tenancy agreement was executed in between the parties". A photostat copy thereof is annexed to the eviction application.

The appellant denied contents of paras. 1 and 2 of the eviction application. In para 1 of the written statement he stated that he had never occupied any shop nor there existed any relationship of landlord and tenant between the parties. The respondent repeated the same facts in his affidavit-in-evidence that he let out the shop in dispute to the appellant and the appellant had executed an agreement of tenancy and had agreed to pay rent at the rate of Rs.125 per month. The respondent admitted in his cross-examination that agreement of tenancy does not bear his signature. The respondent admitted that he never issued any rent receipt. The respondent denied the suggestion that the appellant has never remained as tenant.

Syed Baqar Raza stated in his affidavit-in-evidence that he was tenant of the respondent and he surrendered the tenancy in respect of the shop in dispute and thereafter the appellant was inducted as tenant. This witness denied the suggestion in cross-examination that Muhammad Akram is the tenant in respect of the shop-in dispute. The witness to a question in cross-examination relied that "it is .not a fact that Bashir is not the tenant or that I am giving false evidence due to my friendship with the applicant."

The other witness Muhammad Ayoob stated in his affidavit-in- evidence that the Appellant became the tenant of the respondent. This witness admitted in his doss-examination that he does know the appellant.

As against the above evidence, the appellant repeated the same facts in his affidavit-in-evidence that he is not tenant of the respondent in respect of the shop in dispute. The appellant further stated that Muhammad Akram is the tenant of the respondent in respect of the shop in dispute. The appellant admitted his signature on the agreement of tenancy. The appellant produced certified copies of Ext. 8/A, 8/B and 8/C. The appellant admitted in his cross -examination that he filed an application for re-opening of the case in Small Causes Court which was refused. The appellant admitted that he did not file any appeal against refusal: The appellant admitted in his cross-examination that he did not file any suit for cancellation of tenancy agreement.

Muhammad Saeed stated in his affidavit-in-evidence that Muhammad Akram is the tenant in respect of shop in dispute and he had paid rent to the respondent. This is incorrect that Muhammad Bashir was the tenant of Muhammad Iqbal.

Mirza Alam repeated the same facts in his affidavit-in-evidence. This witness to a suggestion in cross-examination replied that after Baqur, Muhammad Akram became the tenant of the respondent.

Abdul Wahid repeated the same facts in his affidavit-in-evidence that Muhammad Akram is the tenant of the respondent in respect of the shop in dispute.

Muhammad Akram stated in his affidavit-in-evidence that he is the tenant of the respondent in respect of the shop in dispute He stated that on refusal to accept money orders, he filed an application (Misc: R.C. No.2526/82) for permission to deposit rent in court and thereafter he is, depositing rent in court. This witness produced certain documents in support of his plea. This witness admitted in his cross-examination that some official came from Small Causes Court and was inquiring about appellant who was not available there. He replied to a question in cross-examination that he was paying rent but was on behalf of Muhammad Bashir.

I have perused the R & P of the case and have also gone through the evidence adduced by the parties. The contention of the learned counsel for the appellant is that their existed no relationship of landlord and tenant between the parties. The respondent produced document dated 4-10-1973. I have perused the same. This document was executed by the appellant and he agreed to take the shop in dispute from the respondent and agreed to pay rent. The appellant admitted his signature on this document. This document belies his statement that he is not the tenant of the respondent in respect of the shop in dispute. The respondent filed D.W. application No.84/82 against the appellant. Muhammad Akram admitted that bailiff came from the Court of Small Causes Judge and was inquiring about the appellant. The appellant and his counsel were absent, as distress warrant was ordered to be issued by order dated 1-9-1982. The appellant first denied about these proceedings in his cross-examination but when confronted with Ext. 8/B, he admitted that his application was declined and he did not prefer any appeal. There is no material available on record from which it can be presumed 'that appellant was not inducted as tenant but Muhammad Akram was inducted 2s a tenant. There is nothing on record from which it can be inferred that document dated 4-10-1973 was not acted upon but on the contrary the document dated, 4-10-1973 established that the appellant was inducted as a tenant. Muhammad Akram produced certain documents I have perused them. A perusal thereof shows that these documents do not pertain to the shop in dispute. '

It is an admitted position that the appellant was inducted as a tenant of the respondent in respect of the shop in dispute. Admittedly Muhammad Akram is in occupation of the shop in dispute. In the state of evidence on record, Controller was fully justified to hold that there existed relationship of landlord and tenant between the parties and the appellant had parted with the possession of the shop in dispute and Muhammad Akram is in occupation.

For the reasons stated above, I find no merits in this appeal which is accordingly dismissed. The appellant however is allowed four months' time to vacate the shop in dispute and deliver vacant possession of the shop in dispute to the respondent. There shall, however, be no order as to costs.

H. B. T./B-43/K Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.