1. ' The appellants above-named have filed this appeal, against judgment dated 5-11-1975 of the learned Vlth Additional District Judge, Karachi passed in Rent Appeal No, 202/73, by which he dismissed the said appeal and upheld the order dated 2-4-1973 of the learned Civil Judge and Rent Controller, Karachi, passed in Rent Case No, 636/68, inter alia on the following facts and grounds :- ' That one Ghulam Hussain son of Unman, who alleged to be landlord of building bearing No, GK- 5/41, situated at Kharadhar, Karachi, filed ejectment application bearing No, 636/68 under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, against the respondents above- named, who was alleged to be a tenant, in respect of tenaments bearing Nos. 1/1, 1/2, 2, 3 and 4 of the said property and claimed rent at the rate of Rs, 240 per month. The said ejectment application was filed on grounds of default in payment of rent from 1-5-1967 to 29-2-1968, as well as on ground of subletting of the said tenaments without his consent and on ground of damage to the said property and for unauthorised constructions additions and alteration alleged to have been made by the respondent, in the premises in his occupation, which according to him and had materially reduced the value and utility of the said property. The respondent above named, filed his written statement before the learned Rent Controller in which he denied the relationship of landlord and tenant as well as the ownership of said Ghulam Hussain and stated that the property in question originally belonged to Messrs Pir Bux Abdul Karim & Company, of which the respondent claimed to be the only surviving partner and as such the exclusive owner of the said property. The respondent in his said written statement further submitted, that even, if there be other claimant to the said property, he has lost all his rights and interest in the said property, as the respondent has been occupying the said property adversely as an owner, against all including said Ghulam Hussain since about last 4 decades. In addition to those pleas taken in his written statement, respondent further denied various allegation made against him and stated that there was no question of subletting, as the alleged sub-tenants, were, in fact, respondent's tenants since many years and as such the application of said Ghulam Hussain be dismissed with compensatory cost.
2. ' That on the above pleadings of the parties, the learned Rent Controller framed following preliminary Issue on 2-1-1969: ' Preliminary Issue.-Whether there is relationship of landlord and tenant between the parties?
3. ' In respect of the above-mentioned preliminary issue, the said Ghulam Hussain, the original applicant, examined himself and the respondent examined himself and both of them produced documents in support of their respective claims. The learned Rent Controller after taking into consideration the evidence produced by the parties, decided the said preliminary issue in favour of the respondent and held that no relationship of landlord and tenant existed between the parties and as such he had no jurisdiction to try the case and consequently dismissed the said ejectment application filed by the said Ghulam Hussain son of Usman by his order dated 2nd April, 1973.
4. ' The said Ghulam Hussain son of Usman, being aggrieved by the above-mentioned order dated 2nd April, 1973 filed appeal before the VIth Additional District Judge, Karachi, who after going through the record and proceedings of the learned Rent Controller and after hearing the Advocates of the parties, dismissed the said appeal with cost on 5.11-1975 and upheld the order dated 2nd April, 1973 of the learned Rent Controller, for the reasons given in his said judgment.
5. ' It seems, that original applicant Ghulam Hussain son of Usman, died during pendency of the above proceedings and as such the present appellants, as the legal representatives of said Ghulam Hussain son of Usman have filed this second appeal, against the judgment dated 5-11- 1975 and order dated 2-4-1973 of the learned VIth Additional District Judge, Karachi, and learned Rent Controller, Karachi, inter alia on the following grounds:-
(i) That the impugned judgment of the learned Additional District Judge and the impugned order of the learned Rent Controller are illegal, against law and not maintainable in law.
6. (ii)That the said judgment and the said order are unreasonable, void and without jurisdiction.
(iii) That both the learned Additional District Judge and the learned Rent Controller have misread the evidence on record.
(iv) That the findings of the learned Additional District Judge and that of the learned Rent Controller are erroneous, against facts and law.
(vi) That both the Courts below have erred in holding that the appellant has not proved his title and ownership of the property in dispute. In this context it is submitted that in view of the definition of the word "landlord" as contemplated in section 2(c) of the West Pakistan Urban Rent Restriction Ordinance, 1959 the appellant was not required to prove his title of the disputed property. (PLD 1969 Kar. 306 and PLD 1971 SC 494 are relied upon).
(iv) That both the Courts below have failed to give due consideration to the oral and documentary evidence on record of the appellant. In this context it is submitted that there is sufficient evidence on record to hold that there exists relationship of landlord and tenant between the parties. Reliance in this connection is placed on (a) rent receipts Counterfoils (Exh. A/2, Exh. A/3 and Exh. A/4), (b) certified copy of the extract from P. T. I. Register (Exh. A/6) showing the appellant as owner of the disputed property, (c) Tax payment receipts of K. M. C. And Excise Taxation Department (Exh. A/7), Exh. A/8 and Exh. A/9), (d) the tenancy agreement of the former tenant of the appellant before the tenancy of the respondent (Exh. A), Besides, this piece of evidence of the appellant, there is useful admission of the respondent in his evidence and the mutation proceedings initiated by the respondent Exh. 0/11.
(vii) That Exh. A/2 is the rent receipt (Counterfoil) dated 21-9-1946, Exh. A/3 is the rent receipt (Counterfoil) showing payment of rent for the period from September, 1966 to March, 1967, Exh. A/4 is the rent receipt (Counterfoil) dated 14-5-1967 showing payment of rent for April, 1967, Exh. 1/7 is the tax receipt of the Excise Taxation Department showing the payment of urban immovable property tax in respect of the disputed property for the year 1966-67 amounting to Rs, 129.56, Exh.
7. A/8 is the tax receipt in respect of the said property for the year 1966-67 for Rs, 130 paid on 15-11- 1966, Exh. A/9 is the tax receipt dated 3-5-1950 showing payment of tax to K. M. C. In respect of the said period for the year 1949-50, and Exh. A is the copy of the tenancy agreement dated 20-2-1947 in respect of the said property executed by the appellant with his former tenant of the Nangia Bucket Factory through its proprietor.
(viii) That both the Courts below have not considered the weakness, the discrepancies and the contradictions in the evidence of the respondent. The respondent had been changing his position of defence from time to time. In this context it is submitted that in para. 1 of the written statement it is stated that the disputed property stood in the name of Messrs Pir Bux Abdul Karim & Company of which the respondent was the only surviving partner whereas in his statement dated 7-2-1961 (Exh.
8. A/11) on solemn affirmation before the Revenue authorities he stated on oath that the property was occupied by the managing partner Mohd. Amin Hafiz of Messrs Pir Bux Abdul Karim & Co. And the said Mohd. Amin Hafiz is the uncle of the respondent.
(ix) That both the Courts below have misconstrued the extract (Exh. 0/2) from the record-of-rights inasmuch as they have failed to consider that the mutation entries are not the documents of title.
9. Even otherwise the respondent has also failed to prove his title and/or ownership of the disputed property.
(x) That both the Courts below have failed to compare the signatures of the respondent on the counterfoils of the rent receipts and the pleadings of the respondent. Failure to do so has resulted into miscarriage of justice. (PLD 1975 Lah. 299 relied).
(xi) That the learned Additional District Judge has erred in holding that the appeal was barred by limitation. In this context it is submitted that the appeal was within the prescribed time, if the time spent on obtaining the certified copy of the order of the learned Rent Controller is excluded. It is submitted that the application for copy as kept on the record of Rent Case was made on 27-4-1973 but in the certified copy of the order the date was wrongly mentioned as 28-4-1973, the date for application for copy. The copy was made ready on 12-5-1973. It is very important to point out that no notice for the copy being made on 12-5-1973 was given either to the appellant or his counsel.
10. Thus the appellant had no notice as to when the copy was made ready. In other words to say that the appellant had no notice to the effect that the copy was made on 12-5-1973. In these circumstances and in view of law laid down in PLD 1960 Lah. 443 followed in PLD 1973 SC 222, the appellant is entitled to the entire period from the date of application to the date of delivery of copy, i,e, from 27-4-1973, the date of application to 24-5-1973, the date of delivery of copy. If this period from 27-4-1973 to 24-5-1973, i,e, 27 days is treated as the period spent in obtaining the copy, the appeal is in time as the appeal was filed on 26-5-1973 and the impugned order is of 2-4-1973, the total period comes to 54 days and on the other hand, the total period i,e, 30 days plus 27 days comes to 57 days. This means that the appeal was filed 3 days earlier the time for filing the appeal.
(xii) That the learned Additional District Judge has not applied his mind on the merits of the case and he has not given due consideration to the evidence (both oral and documentary) of the appellant on record because he was prejudiced by his wrong conclusion that the appeal was time-barred. It is also significant to point out that the learned District Judge, Karachi treated the appeal as in time. Besides, no counter-affidavit on behalf of the respondent claiming the appeal as time-barred was filed in the first appellate Court.
(xiii) That even otherwise the impugned judgment of the learned Additional District Judge and the impugned order of the learned Rent Controller are bad in law and the same are liable to be set aside.
11. ' The first contention raised by the learned Advocate of the appellant before me, is that the learned lower Courts have come to conclusion in respect of preliminary issue in favour of respondent, on the basis, that the appellant failed to establish his ownership of the property in question, instead of determining limited question whether there existed relationship of landlord and tenant between the parties and in this connection the learned counsel for the appellant submitted that Exhs. A/6, A/7, A/8 and A/9 produced by the appellant, prove, that he is the landlord of the premises in question coupled with Exhs. A/2, A/3 and A/4, to production of which no objection was raised by the respondent and as such it was not necessary for the appellant to prove Exhs. A/2, A/3 and A/4 and in support of this contention, the learned Advocate for the appellant relied on case reported in PLD 1968 SC 140. The learned Advocate for the appellant in respect of his earlier contention, that the appellant by the documents hereinabove mentioned has proved himself to be the landlord and the respondent as his tenant and in this connection, he relied upon cases reported in PLD 1978 Kar.
12. 19, 1976 SCMR 417. The learned Advocate for the respondent on the other hand submitted, that the concurrent finding or facts of both the learned lower Courts, which are based on the oral and documentary evidence produced by both the parties, in respect of the preliminary issue in question, cannot be interfered with in the second' appeal and in this connection the learned counsel for the respondent relied on cases reported in PLD 1955 FC 38, PLD 1977 Kar. 277, 1031, 1073 and 1980 CLC 443 and 753. The learned Advocate for the respondent further submitted that appellant had alleged the property in question to' be his ancestral property, but he failed to prove this averment also. The learned Advocate ,for the respondent further submitted, that Exh. 0/2, 0/3, 0/4, 0/5, 0/6 and 0/7 produced by the respondent, show the respondent to be the owner of the property in question. He further submitted that Exh. A/5, produced by the appellant shows Pir Bux Abdul Karim & Co. As the owner and respondent as occupant. The learned Advocate for the respondent further submitted, that there is contradiction between A/2, produced by the appellant and tenancy agreement marked 'A' produced by him, which shows respondent as tenant from 21- 9-1946 and as such the said tenancy agreement is false and fabricated and further the said tenancy agreement has not been proved in accordance with law. The learned Advocate for the respondent further submitted P. T. I. Exh. A/6 produced by the appellant does not show respondents as tenant of the property nor alleged list of the tenants of the said property is attached with it and as such the said Exhibit cannot be relied upon. The learned Advocate for the respondent further submitted, that the case reported in PLD 1978 Kar. 19 is distinguishable on the facts of this case and in view of his submission, that the appellant failed to prove respondent as his tenant, the preliminary issue in question was rightly decided by both the learned lower Courts in favour of the respondent on the basis of the evidence laid and documents produced by both the parties.
13. ' The next contention, of the learned Advocate for the appellant before me was, that his first appeal was in time and the findings of the learned Additional District Judge, Karachi, that the same was time-barred, is wrong and in this connection the learned Advocate for the appellant relied on case reported in PLD 1973 SC 222.
14. ' I have carefully considered the arguments advanced before me by both the learned counsel of the parties and have gone through the record and proceedings of the learned Rent Controller as well as through the orders of both the learned lower Courts and have taken into consideration their reasons for arriving at their respective conclusions and have also carefully studied the various authorities, that have been cited before me, by both the parties.
15. ' The first question that I would like to deal is whether the 1st appeal filed before the Additional District Judge, Karachi, was time-barred as held by him in his order dated 5-11-1975. The learned Additional District Judge, Karachi, in his order in question, has stated that the impugned order of the learned Rent Controller was passed on 2nd April, 1973 and application for its certified copy was made by the appellant on 27th April, 1973, costs were paid on 12-5-1973 and the copy was ready on 15-5-1973 but the stamps for the same were supplied on 24-5-1973, on which date the copy was delivered to the appellant. According to the learned Additional District judge, Karachi, the appellant had lost 25 days before filing of the application for certified copies and since he paid the cost on 12th May, 1973 we lost another 15 days and as such he cannot claim exclusion of these who periods in computing period of limitation. The learned Additional 'strict Judge, Karachi further stated, that the copy was made ready on 5th May, 1973 and the appellant wasted another 7 days in supplying the tamps and as such the appeal in question was clearly barred by time he same was filed beyond 30 days, from the date of the order of the earned Rent Controller. The learned Additional District Judge in his judgment, has referred to the objection of the learned Advocate for the respondent, namely on sections 5 and 12 of the Limitation Act, that same were not applicable to the proceedings under the Ordinance. However, he learned Additional District Judge, did not agree with this contention of the learned Advocate for the respondent, in view of cases reported in PLD 974 Note 132 at p. 193 and PLD 1961 Lah. 366 and PLD 1961 SC 147 (?) as well as on PLD 1967 Lab. 653 and rejected the contentions of the earned Advocate for respondent. In spite of this, the learned Additional district Judge, Karachi, came to the conclusion, that appeal was hopelessly time-barred.
16. The learned Advocate for the appellant has relied on case ported in PLD 1973 SC 222, according to which time taken between the date of application and the date when copies are ready can further e extended, if such further delay is due to carelessness of office in informing the applicant about the date by which copies would be ready or delivery. There is nothing on record to show that appellant's counsel as given required intimation under rule 323(1) of Sind Civil Courts Rules about the cost to be deposited by him and as such the 15 days' time from the date of application till 12th May, 1973 when presumably appellant's counsel on coming to know about the cost to be deposited, had deposited he same on 12-5-1973. However the appellants' counsel according to learned additional District Judge, Karachi, even after depositing the cost on 12-5-1973, did not supply the stamps till 24th May, 1973, though the copy as ready on 15th May, 1973, and as such there was another delay of 7 days. However, there is nothing on record to show, that intimation that the copy was ready for delivery on 15th May, 1973, was given to the counsel of the appellants and as such the appeal which was filed on 26th May, 1973, in my opinion was in time, on the basis of case reported in PLD 1973 SC 222.
17. ' In view of my above finding, that the first appeal filed by the appellant was in time, I would now deal with the merits of the case. The learned Rent Controller, in his judgment dated 2nd April, 1973, while dealing with the preliminary issue in question, has taken into consideration evidence laid in and documents produced by both the parties and on basis thereof, after giving cogent reasons, he has come to the conclusion that there existed no relationship of landlord and tenant between the parties, as he Caine to the conclusion, that in spite of respondent having denied his signatures on Exhs. A/2, A/3 and A/4, the rent receipts, the appellant did not think it proper to bring evidence in rebuttal to prove that the said rent receipts did actually bear the signatures of the appellant. The learned Rent Controller further observed, that in face of Exh. 0/2, extract from the property register of Karachi dated 25th August, 1969, Exh. A/6 produced by the respondent in proof of his ownership of the property in question cannot be relied upon. The learned Rent Controller further in his order observed, that the respondent in his statement on oath had stated before him that the property in question was his ancestral property and was inherited by him from his father, but he failed to produce any evidence in support of this contention of his. Furthermore, I find that respondent in his statement had stated that appellant was his tenant from 21-9-1976 on the basis of Exh. A/2, but he produced tenancy agreement marked Annexure 'A' in support of his being landlord to show, that the premises in occupation of the respondent, prior to the respondent, were rented out to Messrs Nangia Bucket Factory and respondent was attesting witness to the said tenancy agreement. The production of this Annexure 'A was objected to by the respondent and as such it was not exhibited, but in spite of this, the appellant took no steps to prove this annexure in order to establish his ownership of the property in question. In face of all this evidence on record, the learned Rent Controller came to the conclusion, that there existed no relationship of landlord and tenant between the parties and decided the preliminary issue in favour of the respondent. The learned Additional District Judge, although he was of the opinion, that the first appeal filed before him was time-barred, still he has considered the said appeal on merits as well and in doing so he has agreed with the findings of the learned Rent Controller and his reasoning and has further relied on Exh. A/5 which was produced by the appellant which also shows Messrs Pir Bux Abdul Karim & Co.
18. And others as the owners of the property and the respondent as the occupants of the said property. The learned Additional District Judge further in his judgment observed, that Exh. A/2 one of the rent receipts produced by the appellant, is shown to have been executed by the respondent, when in ordinary course, such receipts, are executed by the landlord in favour of tenants. He further observed, that the respondent denied his signature on the rent receipts Exhs. A/2, A/3 and A/4, which differ from one another and as such the burden was on the appellant to prove alleged signatures of the respondent on the said receipts which he failed to do so. He further observed that the respondent had filed Civil Suit for declaration of his title in respect of the premises in dispute which was pending adjudication in civil Court and as such he agreed with the findings of the learned Rent Controller even on merits. In view of this two concurrent findings of facts of the learned lower Courts which are based on cogent reasons and evidence adduced by both the parties, I see no reasons to interfere with the said concurrent findings of facts in this second appeal, as rightly held in the authorities cited by the Advocate of the respondent which have been mentioned by me herein before.
19. ' In view of my above conclusion and findings I see no merits in the above appeal which is dismissed with costs.