1. ' The present Revision Application under section 115 of the Code of Civil Procedure has been filed by S. Abdul Majeed to challenge the judgment of the Vth Additional District Judge, Karachi, in Civil Appeal No, 225/1976, whereby a suit filed against him and respondent Mst. Jamila by respondent Anwar Aziz was decreed. The brief facts of the case are as follows :- ' Respondent Anwar Aziz, hereinafter referred to as the "landlord", is the owner of a building in which the disputed flat is located. Respondent Mst. Jamila, hereinafter referred to as the "tenant", is the wife of applicant Abdul Majeed. The disputed flat was rented out by the landlord to the tenant in 1969, and she resided in the said flat with her children. It seems that in about 1974, applicant Abdul Majeed also came and lived in the flat with the tenant who, as stated, was his wife. It seems that the landlord wanted to evict the tenant and the applicant and some litigation in criminal Court and the Court of the Rent Controller ensued. It is the case of the landlord that on 15th April, 1975, the tenant and her husband, the applicant, vacated the tenement, whereafter on being approached by the landlord, the tenant stated that she had relinquished the tenancy. The landlord then wanted to take possession of the house in question, but be was resisted by the applicant. The landlord then filed a suit bearing No, 1021/1975 in the Court of the IXth, Civil Judge First Class, claiming, the following reliefs -
(a) a declaratory decree that the plaintiff has all the legal right, title and authority to restrain the entry of the defendants, or any other person claiming any right or title under or through any of the defendants, or any of their agents or servants, into the House No, 15, Row No, 4, SubBlock 'A', Block 5, Nazimabad, Karachi or any part thereof, and as such the plaintiff can break open the locks of the 1st floor premises of this house at his pleasure ; and a permanent injunction restraining the above- said persons from in any way interfering with the right, title and authority of the plaintiff and the manner in which he enjoys his property, with such interim orders as may be deemed necessary and expedient in the interest of justice, and costs.
2. ' Written statement was filed by the applicant. He disputed the fact of the landlord being the owner of the premises, and he averred having taken the premises on rent from the father of the landlord.
3. He alleged that the landlord had attempted to prohibit his entry into the house., In the written statement, some legal pleas were raised, and one out of them was that the suit was barred by the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. It seems that the tenant did not contest the proceedings. Some evidence was recorded, and, by a judgment, dated 22nd April, 1976 the suit of the landlord was partly decreed.
4. ' On the pleadings of the parties, the following issues were framed
(1) Whether the plaintiff is and has always been the sole owner of du subject property ?
(2) Whether the defendant No, 2 has any rights of entry and occupancy, as tenant or otherwise, over the subject property ?
(3) What should the decree be ? ' various letters. The main contention with regard to the requirement of the premises in good faith and for personal use was denied as per paragraph 4 of the written statement "for want of knowledge". It was, however, asserted that the respondent also owned another bungalow, bearing No, I-A, 4th North Street in the Defence Society, which was completed in the middle of 1972 and had been rented out by him. On these premises, it was averred that the application was misconceived, fabricated, frivolous and vexatious. In an earlier paragraph of the written statement the appellant had stated the application for ejectment had been filed as a counter-blast to the appellant's persistent request for repairs and renovation of the premises so much so that the appellant had to file a rent case under section 12 of the Ordinance which was pending in the same Court.
5. ' On such pleadings of the parties, the learned Rent Controller framed the following three issues :-
(1) Whether the landlord requires the tenement for his bona fide personal use ?
(2) Whether the premises required repairs/renovation ?
(3) What should the order be ?"
6. ' The first issue was found in favour of the landlord. On the second issue, the operative part of the reasoning and the finding is as follows :- "I, therefore, in view of the admission of the P. W. 1 that the defendant No. 2 also lived with the defendant No. 1 continuously for one year and the plaintiff has not deposed that he has ever objected "about the living of the defendant No. 2 with defendant No.
1. Moreover the defendant No. 1 and defendant No. 2 are the husband and wife and they are, all the behaves of the same and suit family.
7. ' I, therefore, in the above discussion hold that the defendant No. 2 has right and occupancy as licensee of defendant No. 1, over the suit property."The landlord then filed a First Appeal before an Additional District Judge, who decreed the suit in tow. Hence this Revision Application.
8. ' One of the pleas raised by the applicant in his written statement before the trial Court was in regard to the suit being barred by the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. In his written statment, he had averred that he was a tenant of the premises in dispute having obtained the same from the father of the landlord. In the issues that were framed, there was no issue in regard to the suit being barred under the. West Pakistan Urban Rent Restriction Ordinance. The most question was, whether the tenant, or, the applicant was protected by the provisions of the West Pakistan Urban Rent Restriction Ordinance. In the present case, it is admitted by the landlord that he had let out the premises to Mst. Jamila, who is the wife of the applicant. It is also admitted that the applicant continued to live in the house with Mst. Jamila for about eighteen months. Such occupation of the house by the applicant was not objected to by the landlord. In the event of Mst. Jamila having vacated the house whether her tenancy was terminated or continued to remain in force was the basic question. The ancillary question is whether Mst. Jamila had sublet the premises to the applicant, and if so, what was the effect. Both these questions could be determined only if an issue had been cast on those averments.
9. ' I am now to consider whether I should remand this case to the trial Court after re-framing fresh issues, or, 1 should dispose of the case on merits. I am of the view that the material on record is sufficient to come to the conclusion that this suit was not maintainable. Admittedly, the house had been let out on rent by the landlord, and the applicant, who is the husband of the tenant, was living in the house for nearly one and a half years. When the husband and wife occupy the same house, a presumption B could also be drawn that the rent is being paid by the husband, even though the rent receipt may be in the name of the wife. However, I would not like to record any finding on that point, as it is not necessary to give such a finding in the circumstances of this case. The fact is that either the tenancy of Mst. Jamila continues, or, she has sub-let the premises to the applicant. In either case, the issues could be determined by proceedings under th West Pakistan Urban Rent Restriction Ordinance, 1959, and not by a sui in the civil Court'. In the circumstances, I have not thought it fit to remand this case for determination of additional issues, because such issues can, in fact, be determined by the Rent Controller.
10. ' In the result, this Revision Application is allowed, and the judgment and decree of the Additional District Judge and the Civil Judge is hereby set aside. Parties shall bear their own costs.