1. This petition is directed against the order dated 14-4-2000, passed by the learned IInd Rent Controller, Karachi South, in Rent Case No. 280/1994 and the judgment dated 11-1-2002 passed by the learned Vth Additional District and Sessions Judge, Karachi, Sought in F.R.A. No. 272/2001, upholding the order passed by the Rent Controller.
2. Briefly stated the relevant facts. are that the petitioner filed ejectment application against the Respondent, No. 1, on the ground of default in payment of rent. The Respondent No. 1 filed written statement taking plea that earlier she was tenant under the petitioner but during continuance of tenancy she purchased the property through a sale agreement and made payment of the entire sale consideration whereafter the petitioner ceased to be tenant and became owner of the property. It was further stated in the written statement that the Respondent No. 1, has filed a suit in Civil Court seeking declaration that she has become lawful owner of the property in pursuance of sale agreement dated 1-6-1987 and that the petitioner has filed a suit seeking cancellation of the sale agreement on the plea that it was forged document.
3. The learned Rent Controller, thereafter heard the learned Advocates for the parties on the point of maintainability of the rent application and ultimately held that since civil suits were pending in which the question of title in the property was to be determined therefore, the rent application was not maintainable on account of non-existence of relationship of landlord and tenant between the parties. The appeal preferred by the petitioner was dismissed and the finding of the Rent Controller was upheld.
4. Mr. Iqbal Quadri, learned counsel for the petitioner has submitted that the civil suit filed by the Respondent No. 1, has been dismissed while the civil suit filed by the petitioner seeking cancellation of the sale agreement has been decreed. The Respondent No. 1 filed appeal which was dismissed and in revision before this Court the matter has been remanded to the learned First Appellate Court on the ground that the learned First Appellate Court failed to frame the points for determination as required under Order XLI, Rule 31, C.P.C. Mr. Iqbal Quadri, has further submitted that the petitioner has been condemned unheard and has not been provided opportunity to lead evidence to establish that the relationship of landlord and tenant exists between the parties. He has submitted that in this case it was admitted that there was relationship of landlord and tenant between the parties but a plea was taken that during continuance of tenancy the Respondent No. 1, purchased the property through sale agreement and thereby she became owner of the property.
5. Mr. Iqbal Quadri, has contended that whenever a plea is taken by a person who has admitted himself to be tenant taking plea that during continuance of tenancy he/she became owner, it is incumbent on the Rent Controller to provide opportunity to both the parties to lead their respective evidence and thereafter decide the limited question of relationship of landlord and tenant without giving any finding on the point of title in the property which is exclusively within the domain of Civil Court. In support of his contention he has placed reliance, on the judgment of Hon'ble Supreme Court in the case of Iqbal v. Mst. Rabia Bibi, PLD 1991 SC 242. It has been held by the Hon'ble Supreme Court as follows: "In some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has, a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well- known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain the occupation and fight the litigation for long time, even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord."
6. On the other hand, Mr. M. Akbar Awan, learned counsel for the Respondent No. 1, has submitted that the Rent Controller has no jurisdiction if there is a dispute between the parties about the title over the suit premises. The question is to be decided by Civil Court. In support of his contention he has placed reliance on the judgment of Hon'ble Supreme Court in the case of Abdul Hawed Naz v. Mst.
7. Razia Begum Awan 1991 SCM R 1376. The Hon'ble Supreme Court has held in this case that where issue regarding relationship of landlord and tenant depended solely and not only incidentally on question of ownership and title to property and it was not possible for Rent Controller to decide the case without deciding the basic question involved regarding title, then it would, not be appropriate to evaluate such situation by observing that decision on question of title was only tentative. Rent Controller could not decide question of relationship of landlord and tenant against tenant when landlord had failed to establish his position as landlord beyond reasonable doubt. It was further observed that in such circumstances the proper course for the Rent Controller would be to decide the issue of such relationship against the landlord and advise him to first get his title established before seeking ejectment. The Hon'ble Supreme Court further observed that it has been held in the earlier judgment in the case of Province of Punjab v. Abdul Ghani PLD 1985 SC 1, that there is one exception to Section 116 of the Evidence Act, to the extent that if the denial is during the continuation of tenancy and not after the determination thereof the issue is to be decided in favour of landlord who let the tenant in and not any other person.
8. Mr. Akbar Awan, has further placed reliance on an earlier, judgment of the Hon'ble Supreme Court in the case of Rehmatuallh v. Ali Ahmed, 1983 SCM R 1064, wherein it has been held that the question of relationship of landlord and tenant is to be decided after affording reasonable opportunity to the tenant and that after complete satisfaction as result of opportunity having been afforded to the parties to satisfy the Controller one way or the other. If the landlord is not able to establish the relationship after affording an opportunity then only the Rent Controller can non-suit the landlord.
9. I have carefully considered the facts on record and the judgments of the Hon'ble Supreme Court referred to above. I am of the opinion that in this case, the Respondent No. 1 admitted that initially she was the tenant under the petitioner and alleged that by virtue of sale agreement she became owner of the premises. In these circumstances, even if the Rent Controller was of the view that it is not possible to decide the question of relationship of landlord and tenant between the parties at the most the proceeding could be kept in abeyance and the landlord could not be non-suited. In this case, the admitted position is that the suit filed by Respondent No. 1, has been dismissed and the question pertaining to title has been decided by the original Court in favour of the petitioner and the issue is, pending before the First Appellate Court.
10. In the above circumstances, the orders passed by the Respondents Nos. ,2 and 3 are hereby set aside. Case is remanded to the IInd Rent Controller Karachi, South with the direction to afford opportunity to the parties to lead evidence on the point of relationship of landlord and tenant between them.
11. However, if after giving opportunity to both the parties and receding of evidence in this behalf, the Rent Controller feels that it is not possible to decide the question pertaining to relationship of landlord and tenant between the parties without decision by the Civil Court, the matter may be kept in abeyance till the appeal is finally decided by the District Court. The petition is allowed accordingly. I have been informed that the appeal at the instance of Respondent No. 1, is pending in the Court of First Additional District Judge, Karachi South. The suit at the instance of Respondent No. 1 Mst. Razia Gill, was filed in the year 1993 therefore, the learned District Judge seized of the appeal is directed to dispose of the appeal within three months of receiving the copy of this judgment. The office is directed to send the copy of this judgment to the learned First Additional District Judge, Karachi South, as well, in addition to the Respondents Nos. 2 and 3.