' MUHAMMAD ATHER SAEED, J.---This petition has been preferred against the common judgment dated 31st July, 2003 in F.R.A. Nos.190 and 212 both of 2002 passed by learned District Judge, Karachi (South), whereby the order of the learned VIIth Rent Controller, Karachi (South) passed under section 16(2) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred as the Ordinance, 1979) was maintained and accordingly the appeals preferred by the petitioner and respondent No,4 were dismissed.
2. Brief facts of the case are that the respondent No,3 landlord filed ejectment application under section 15 of the Ordinance, 1979 against respondent No,4 and the petitioner for ejectment from the subject premises. As per the facts narrated in the ejectment application the respondent No,3/landlord, had rented out the subject premises to respondent No,4 vide tenancy agreement dated 1-4-2000 at the monthly rent of Rs,34,500 and, thereafter, the respondent No,4 sub-let the same to the petitioner without obtaining permission of the respondent No,3/landlord.
3. Both the petitioner and respondent No,4 filed their written statement before the trial Court in which the respondent No,4 denied the relationship of landlord and tenant between him and the respondent No,3/landlord, while the petitioner stated that he is the tenant of respondent No,4 by virtue of oral rent agreement and had been paying monthly rent regularly, but on the refusal of landlord he started depositing the rent in MRC No,866 of 2001.
4. During pendency of such rent proceedings in Rent Case No,824 of 2001, respondent No,3 filed an application under section 16(1) of the Ordinance, 1979, which was allowed by the learned Rent Controller holding that the respondent No,4 was the tenant of respondent No,3/landlord and accordingly he was directed to deposit arrears as well as future monthly rent, which order the respondent No,4 failed to comply with and consequently the respondent No,3/landlord filed another application under section 16(2) of the Ordinance, 1979 to strike off the defence of respondent No,4. The learned Rent Controller, after hearing the arguments of the parties, allowed the application under section 16(2) and directed the petitioner and respondent No,4 to hand over vacant peaceful possession of the subject premises to the respondent No,3/landlord within thirty days. Being aggrieved by this order the petitioner preferred this constitutional petition.
5. I have heard Mr. Nazar Akber, learned counsel for the petitioner and Mr. Mumtaz Shaikh, learned counsel for the respondent.
6. The main contention of learned counsel for the petitioner is that the learned trial Court passed tentative rent orders under sections 16(1) and 16(2) of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979) without first determining whether relationship of tenant and landlord existed between respondent No,4 and respondent No,3/landlord. He stated that the respondent No,4 had specifically denied the relationship of tenant and landlord between himself and respondent No,3/landlord and in his objections filed before the learned Rent Controller had alleged that he had never entered into any tenancy agreement with respondent No,3/landlord in respect of the subject shop and had never tendered rent to the respondent No,3/landlord. He further stated that the petitioner, in his written statement, filed before the learned Rent Controller, had categorically asserted that respondent No,3/landlord had entered into agreement with him in March, 1998 at a monthly rent of Rs,17,000, which was being paid by him regularly to the applicant/landlord and after his refusal to receive the rent the same was sent to him through money order and after he refused to receive the money order the rent was being deposited in Misc.
Rent Case No,688 of 2001 in the Court of Senior Civil Judge, Karachi (South). He argued that without first establishing that there existed a relationship of landlord and tenant between respondent No,3/landlord and respondent No,4, the Rent Controller could not have passed a tentative rent order under section 16(1) of Ordinance, 1979, directing the respondent No,4 to deposit the arrears and future monthly rent in respect of the subject shop and then pass an order directing the respondent No,4 to vacate the premises by striking off the defence of the respondent No,4 and the petitioner under section 16(2) of the Sindh Rented Premises Ordinance, 1979. In support of his contentions he has relied on the following case-laws:--
(i) A.M. Qureshi v. Government of
(ii) Sindh (1991 SCMR 1103);
(iii) Hanif (1985 CLC 1606);
(iv) Hasan Mohiuddin v. Muhammad others (PLD 1979 Quetta 39);
(v) Mst. Khursheed v. Abdul Hadi and
(vi) Ghulam Hussain v. Abdul Rehman and 2 others (PLD 1982 Lahore 519);
(vii) Abdul Hameed v. Muhammad Javed (1999 MLD 3031); and
(viii) Habibullah v. Vasdegvir (PLD 1968 Karachi 869).
7. He further argued that the Rent Controller was required to conduct a summary inquiry under section 16(1) of Ordinance, 1979, before passing a tentative rent order under this section but in the present case the learned Rent Controller, without conducting any inquiry on the question of relationship of tenant and landlord between respondent No,4 and respondent No,3/landlord, passed an order under section 16(1) of Ordinance, 1979 and, therefore, this order was passed without fulfilling formalities, prescribed in section 16(1) of Ordinance, 1979, and cannot be sustained.
He also drew my attention to the fact that respondent No,3 had initially filed affidavit-in-evidence on July 4, 2001.
However, without obtaining any permission from the Court a second affidavit-in-evidence was filed on October 12, 2001, by respondent No,3. He pointed out that the alleged undertaking executed by respondent No,4 was not mentioned in the Eviction Application nor in the first affidavit-in- evidence but was mentioned in the second affidavit-in-evidence only. He pointed out that the petitioner had filed a civil suit for permanent injunction against respondent No,3 in the Court of VIIth Civil Judge, Karachi (South) in March, 2001 and the learned Civil Judge, vide her order dated 8-9- 2001 directed the respondent No,3 /landlord not to dispossess the petitioner from the subject shop illegally without due process of law. He, alleged that there was collusion between respondent No,3/landlord and the respondent No,4 and the respondent No,3/landlord had hatched a conspiracy with respondent No,4 in order to get the subject shop vacated from the petitioner. He also drew my attention to the tenancy agreement and pointed out that the date of the agreement has been shown as April 1, 2000, whereas the Stamp Paper, on which this Tenancy Agreement had been executed is dated April 12, 2000. He questioned as to how an Agreement dated April 1, 2000, could be executed stamp paper on April 12, 2000.
8. Mr. Mumtaz Ahmed Sheikh, learned counsel for the respondent, rebutting the arguments of the learned counsel for the petitioner, submitted that the respondent No,3/landlord had entered into an Agreement with respondent No,4 on April 1, 2000, letting out the subject shop at a monthly rent of Rs,34,500. Explaining the discrepancy alleged by learned counsel for the petitioner in the tenancy agreement, he pointed out that the tenant had signed the Agreement on August 7, 2000 and the date of April 1, 2000 only signifies the date on which the terms of tenancy were settled and were reduced to writing at a latter date. He submitted that in his written statement, filed before the learned Rent Controller, the petitioner had specifically stated that the respondent No,4 had rented out the shop in question to him on the basis of oral tenancy agreement in March, 1998. He conceded, that in his arguments before the Rent Controller and the District Judge the learned counsel for the petitioner had argued that this fact was divulged in the written statement due to typing mistake but till today he has not moved any application under Order VI, rule 17, C.P.C. To amend the written statement and rectify this mistake. He pointed out that just on the basis of oral arguments the learned counsel for the petitioner cannot be permitted to back out of all the averments made in the written statement. He further argued that the judgments relied upon by learned counsel for the petitioner in support of his contention that the Rent Controller could not pass a tentative rent order under section 16(1) of Ordinance, 1979 without first determining the relationship of tenant and landlord, are distinguishable inasmuch as in all those cases the relationship between the tenant and landlord had been denied on the basis that the landlord did not own the premises in question whereas in the present case the tenant has denied the very existence of the tenancy agreement. He argued that the learned Rent Controller had passed a tentative rent order after giving a clear-cut finding that there existed relationship of tenant and landlord between respondent No,4 and respondent No,3/ landlord and also holding that the petitioner had failed to prove that he was the original tenant of the subject shop and not a sub- tenant of respondent No,4. Replying to the arguments of learned counsel for the petitioner that the learned Courts below have violated the provisions of section 16(1) of Ordinance, 1979 as they have not held any summary inquiry, he replied that the summary inquiry specified in this section relates to inquiry in connection with the arrears of rent and this inquiry was conducted by the learned Rent Controller before passing the order. He also drew my attention to the order of the learned Civil Judge in the suit filed by the petitioner, in which the learned Civil Judge had categorically held that the plaintiff had failed to file any documentary proof regarding his tenancy. He further stated that under section 5 of Ordinance, 1979, it is mandatory that the agreement of tenancy shall be in writing. In this connection he relied on the judgment of the Honourable Supreme Court in the case of Hakim Ali v. Muhammad Saleem (1992 SCMR 46). He strongly stressed that this Court while exercising its constitutional jurisdiction cannot adjudicate upon the disputed questions of fact nor can it substitute its finding for the findings of the Courts below. In this connection he relied on the following case-laws:--
(i) Noor Muhammad v. Sarwar Khan (PLD 1985 SC 131);
(ii) Hessab v. Election Authority (Sindh) (PLD 1986 Karachi 179);
(iii) Muhammad Zafar v. Lal Muhammad (1988 SCMR 322);
(iv) Abdul Rehman Bajwa v. Sultan (PLD 1981 SC 532); and
(v) M/s Mehraj (Pvt.) Ltd. v. Miss Laima Saeed (2003 MLD 1033).
9. Learned counsel for the respondent also submitted that the bona fide of the respondent No,3/landlord is clear from the fact that the respondent had declared the rent for three months at the rate of Rs,34,500 in his return of income for the year ended 13-6-2000 and had paid tax on it. He stated that it would have been insanity on the part of respondent No,3/landlord to compute income on the basis of rent of Rs,34,500 per month if he was receiving rent of Rs,17,000 per month.
He further denied that there was any collusion between respondent No,3/landlord and respondent No,4, who he said, was a relative of the petitioner. He said that conduct of respondent No,4 in denying the tenancy had proved otherwise that he was in collusion with the petitioner.
10. Exercising his right of reply, learned counsel for the petitioner submitted that provisions of section 5 of Ordinance, 1979, are not mandatory in nature and has relied on the decision of this Court in the case of Muhammad Younus v. Irfanullah Khan (2002 CLC 256).
11. I have examined the case in the light of the arguments of both the learned counsel, the judgments relied upon by them and have carefully perused the impugned orders and the record of the case.
12. There is no cavil to the contention of the learned counsel for the petitioner that without first establishing the relationship of tenant and landlord between the parties the Rent Controller does not have the jurisdiction to pass tentative rent order under section 16(1) of Ordinance, 1979.
However, on examination of the order passed by the learned Rent Controller it is clear that the learned Rent Controller, before passing the tentative rent order, has thoroughly examined the question whether there existed any relationship of tenant and landlord between respondent No,4 and respondent No,3/landlord and had passed the tentative rent order after examining the facts of the case and arriving at the conclusion that there was a relationship of tenant and landlord between respondent No,4 and respondent No,3 and only after reaching such conclusion passed the tentative rent order. I consider it pertinent to reproduce the following extract from the order of the learned Rent Controller:-- "After hearing the parties and perusal of record, this Court is of the view that in written statement opponent No,1 denied the relationship between the parties as landlord and the tenant and stated that he never paid any rent to the applicant. The applicant never handed over the possession of the property to the opponent No,1 and also denied the tenancy agreement. The opponent No,2 in his written statement clearly admitted that "opponent No,1 has rented out the shop in question to the opponent No,2 on the basis of Oral Sale Agreement in March, 1998". There is clear admission on the part of opponent No,2 that opponent No,1 rented out the premises in question to the opponent No,2. The question is that the premises was rented out to the opponent No,2 by the opponent No,1, why the opponent No,2 depositing the rent in the name of applicant and there is no such objection on record on the part of opponent regarding the deposit of rent in the name of applicant and further the written statement filed by the opponent No,2 on 22-5-2001 and the opponent No,1 after filing of written statement of opponent No,2, filed his written statement on 27-9-2001. The agreement of tenancy is also between the applicant and the opponent No, 1 . The applicant also filed copies of income tax returns, which show that applicant is paying tax for the property in question. Further applicant filed a copy of statement/ undertaking, wherein opponent No,1 promised to vacate the premises in question within 30 days from the date of compromise/ promise dated 1-3-2001. And further in this undertaking/promise opponent No,1 clearly admitted that he is the tenant of applicant. Further this Court is of the view that nothing has come on record that opponent No,1 filed any proceedings against the opponent No,2 and against the applicant for cancellation of documents i.e, tenancy agreement and/or undertaking/promise/receipt dated 1-3- 2001 and against the opponent No,2 for stating in his written statement that he has taken the premises in question from the opponent No, 1 ."
' The counsel for the applicant relied upon 2000 CLC 1841 Karachi, 2000 SCMR 845 and 1987 CLC 301 Karachi.
' I would like to refer here 1987 CLC 301 Karachi which reads as under:-- "Relationship of landlord and tenant, determination of. Tenant taking premises on rent from Landlord through tenancy agreement to which sub-tenant was not party. After termination of tenancy agreement instead of handing over vacant possession of premises to landlord, tenant taking plea that actual tenant was subtenant and he was only guarantor for payment of rent. Plea of tenant being inconsistent with tenancy agreement and letter addressed by him to landlord for terminating tenancy agreement. Rent Controller, held, was not justified in holding that actual relationship of landlord and tenant was between landlord and sub-tenant and that original tenant was only guarantor for payment of rent."
' I would also like to refer here 2000 SCMR 845, which also reads as under regarding the point of relationship between the applicant and the opponent:-- "Denial of relationship of landlord and tenant. "Effect". Not an inflexible rule that whenever relationship of landlord and tenant was denied the Rent Controller was invariably bound to refer the applicant to approach the Civil Court for establishment of his ownership. Every case was to be decided on its own peculiar facts. Principles."
' In the light of above discussion this Court is also of the view that it is not an inflexible rule that whenever relationship of landlord and tenant is denied the Rent Controller is invariably bound to refer the applicant/landlord to approach the Civil Court for establishment of his ownership. In the light of tenancy agreement and/or undertaking/receipt/ promise dated 1-3-2001, which have not been challenged by the opponent No,1 anywhere by filing any proceedings according to law, hence it is found that denial by the opponent No,1 of the relationship of opponent No,1 and applicant is frivolous and baseless as he has not been able to urge or bring anything substantial in support of his plea but the stand of the applicant is supported by solid and cogent evidence on record viz. Agreement of Tenancy, between the applicant the opponent No,1 has gone unchallenged in any Court of law according to law so also undertaking/promise/receipt dated 1-3-2001 and further statement of opponent No,2 that he has taken the premises on rent from the Opponent No,
1. The opponent No,1 taking this ground just to lingering on the matter hence the applicant has rightly proved his relationship between the opponent No,1 and applicant as landlord and tenant.
' In the light of above discussion it is established that the opponent No,1 is the tenant of applicant " "
13. From the perusal of the above extract it is clear that the learned Rent Controller had reached the conclusion after examining the facts of the cases minutely and on the basis of the facts argued before him has reached the conclusion that there was relationship of tenant and landlord between respondent No,4 and respondent No,3/landlord. He has also, on the basis of the facts, arrived at the conclusion that the petitioner has failed to substantiate with any evidence whatsoever that there existed relationship of tenant and landlord between him and respondent No,3/landlord and, therefore, he had no option but to hold that the petitioner ' was occupying the subject shop as a sub-tenant of respondent No,4 and as held by the superior Courts once an eviction order was passed against the original tenant the sub-tenant had no cause of action. Even otherwise the respondent No,4 seems to have accepted the order of the learned District Judge as he has not filed any constitutional petition against the impugned judgment.
14. Regarding the contention of the learned counsel for the petitioner that it was due to a typing mistake that the petitioner had stated that he acquired the subject shop from respondent No,4, I agree with the contention of learned counsel for the respondent that merely arguing that it was a typing mistake cannot be accepted unless an application for amending the written statement was filed under Order VI, rule 17, C.P.C. And no such application has been fled by the petitioner.
15. After reaching the conclusion that the learned Rent Controller had decided the issue of the relationship of tenant and landlord between respondent No,4 and respondent No,3 on the basis of facts before passing tentative rent order under section 16(1) of Ordinance, 1979, I am of the opinion that the judgments relied upon by learned counsel for the petitioner will not come to his rescue.
Even otherwise, it is a settled principle of law that this Court in exercise of its constitutional jurisdiction D cannot adjudicate on the disputed facts of the case or even in case this Court reaches the conclusion that another view of the matter was also possible it would not serve any purpose as this Court in exercise of its constitutional jurisdiction cannot substitute its view in place of view of the trial Court. This point has been discussed by a learned Single Judge of this Court in the case of M/s Mehraj (Pvt.) Limited (supra), in the following manner:-- "9. Besides, the contention of Mr. Imran Ahmed with regard to the maintainability of this petition has also much substance. In this context it may be observed that by conferring only one right of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 the legislator in its wisdom seems to have tried to shorten the span of litigation in rent cases. In such circumstances interference by this Court in exercise of its constitutional jurisdiction under Article 199, in the judicial orders passed by the Tribunals, merely on the ground that another view of the matter is also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of the statute. The dictum laid down in the case of Secretary to the Government of the Punjab (supra) also postulates similar view and is fully applicable to the facts and circumstances of the present case. No case for interference in the concurrent findings of facts recorded by the two Courts below is thus made out. This petition is accordingly dismissed in limine along with pending application."
16. For the foregoing reasons it is my considered opinion that the above constitutional petition is devoid of merits and cannot be entertained. Accordingly the same is hereby dismissed.