' FAROOQ ALI CHANNA , J.---. Through the instant constitutional petition the petitioner has called in question the concurrent findings of two Courts below, whereby the ejectment application filed by the respondent No,3 against the petitioner was allowed by the VIII Rent Controller, Karachi (South) vide order dated 23-10-2010 passed in Rent Case No,656 of 2008, upheld by the learned VII Additional District Judge, Karachi (South) vide judgment dated 2-5-2010, passed in First Rent Appeal No,407 of 2010.
2. The facts in brief giving rise to file the instant petition are that the respondent No,3 Amin-ur- Rehman filed the ejectment application bearing Rent Case No,656 of 2008 for eviction of petitioner from House No,138/1, situated at Garden West, near Muhammadi Masjid, Jumboo Street, Karachi, on the grounds of wilful default committed by the petitioner and the demised premises required for personal bona fide use by respondent No,3, the said premises was rented out to the father of petitioner by the mother of respondent No,3, at the rent of Rs,40,000/- per month, 16 years back.
3. In pursuance of the notice, the petitioner appeared before learned Rent Controller and filed his written reply denying the relationship of landlord and tenant between him and the respondent No,3 and taken plea that his father had purchased the premises in question from the mother of respondent No,3 in the year 1983.
4. The trial Court after recording the evidence framed point amongst others for determination that: "Whether there exists any relationship between applicant and opponent as landlord and tenant?"
' After hearing learned counsel for both the parties, learned Rent Controller allowed the ejectment application, the petitioner impugned the order of learned Rent Controller in First Rent Appeal No,407 of 2010 the same was dismissed by learned VIIth Additional District Judge, Karachi (South).
5. Learned counsel for both the parties have emphasized the Point No,1 mentioned above only, as non-payment in lieu of rent of demised premises by the petitioner to the respondent No,3 is not a controversial issue between the parties.
6. Learned counsel for the petitioner has contended that there exists no relationship of tenant and landlord between the petitioner and respondent No,3, the father of petitioner was inducted in the premises by the mother of the respondent No,3 as purchaser of property in the year 1983 under a sale agreement on payment of sale consideration. Learned counsel has further contended that respondent No,3 has failed to produce any document or evidence to establish the existence of relationship as tenant and landlord between the parties both the Courts below have failed to appreciate the above fact while deciding the ejectment application and F.R.A. Learned counsel has further contended that utility charges are being paid by the petitioner as owner and not tenant, the telephone facility was also provided by the concerned department at the demised premises in the name of petitioner. Learned counsel has . Further contended that under section 5(2) of the Sindh Rented Premises Ordinance, 1979 written rent agreement is mandatory requirement as proof of relationship of landlord and tenant between parties, thus the learned Rent Controller had no jurisdiction to entertain the ejectment application which was liable to be dismissed for want of written agreement, the landlord could have recourse to civil Court for seeking ejectment of person occupying his premises unauthorizedly. In support of her contention learned counsel has relied upon the case-laws reported as Habib Ahmed v. Liaquat Ahmad (PLD 1985 Kar. 741), Hakim Ali v.
Muhammad Salim and another (1992 SCM R 46), Muhammad Akram v. Muhammad Zar and others (1987 SCM R 1788), Abdul Hameed Naz and 7 others v. Mst. Razia Begum Awan and 4 others (1991 SCM R 1376).
7. Conversely, learned counsel for the respondent No,3 has opposed the petition. However, at outset admitted that he does not have written rent agreement or rent receipt in proof of relationship of landlord and tenant between the parties, his contention was that the relationship was established from the evidence led by both the parties before the learned Rent Controller. He has contended that the respondent No,3 in his affidavit-in-evidence has stated that he had received the rent of two months and thereafter the petitioner stopped the payment of rent, this fact has not been rebutted by the petitioner in his cross-examination, as such unshattered and unrebutted evidence deemed to be an admission of fact, on this point learned counsel has relied upon a case of Shakeel Ahmed and another v. Muhammad Tariq Farogh and others (2010 SCM R 1925). Learned, counsel has further contended that the petitioner has admitted the payment of utility charges, which in terms of section 2(I) Sindh Rented Premises Ordinance, 1979 is part of rent, resultantly such admitted facts are sufficient to establish the relationship of tenant and landlord between the parties. Learned counsel has further contended that the written tenancy agreement although required in terms of section 5(1) Sindh Rented Premises Ordinance, 1979 but the Hon'ble apex Court have not recognized or entertained the said provision to be mandatory and have declared same to be directory, hence the petitioner cannot claim benefit of absence of written tenancy. Learned counsel has also relied upon the cases, 2011 SCM R 320, PLD 2009 SC 453, PLD 1991 SC 242, PLD 2008 Kar. 424, 2002 CLC 876, PLD 2003 Ka:. 444 and 2010 SCM R 1925.
8. As already stated that there is no dispute over the non-payment in lieu of rent by petitioner to the respondent No,3 as such the sole controversy is regarding the existence of relationship of tenant and landlord between the parties.
9. Learned Rent Controller while deciding the above point has not assigned appropriate reasons while deciding the said issue in affirmative. The findings of learned VIIIth Rent Controller on the above controversy reads as under:--- "It is stated by the applicant that premises in question was let out by his father to Muhammad Arif, father of respondent, who died 3 years before filing of the present case and thereafter the opponent being statutory tenant was required to pay Rs,40,000/- per month as rent.
' The opponent has denied the relationship of landlord and tenant between him and applicant on the ground that the premises was purchased by their father Muhammad Arif from the mother of applicant Mst. Aisha and have also relied upon the agreement *to sale alleged to have been executed between Mst. Aisha and Muhammad Arif. This Court being Rent Controller has no jurisdiction to determine the claim of opponent over the property in question. However, it is an admitted fact that the mother of applicant was the owner of the premises in question and after her death, the applicant become landlord. In view of the above reasons, I am inclined to hold that the relationship between the landlord and tenant exists between the parties. The point is decided in Affirmative."
' Similarly Learned VII Additional District Judge, Karachi (South) while deciding the F.R.A. Has also not recorded appropriate reasons for believing the existence of relationship of tenant and landlord.
The findings of learned VII Additional District Judge, Karachi (South) reads as under:--- "It is settled law, that agreement of sale does not create any title over any property as such it is proved that relationship of landlord and tenant does exist between the parties."
' However, while recording the above finding learned VII Additional District Judge, Karachi (South) has referred to a matter reported as Abdul Rasheed v. Maqbool Ahmed and others (2011 SCM R 320). I have gone through the above referred matter and found nowhere that the agreement of sale does not create any title over any property, the relationship of tenant and landlord does exist between the parties.
10. The term "tenant" has been defined in section 2(j) the Sindh Rented Premises Ordinance, 1979, the same has further been defined elaborately by the Hon'ble apex Courts in two categories i,e, (i) contractual and (ii) statutory tenant. The contractual tenant would be one who undertakes to pay or is bound to pay rent as consideration for possession or occupation of any premises by him or by any other person on his behalf during the contractual period of tenancy and the statutory tenant would be one who was bound to pay rent by operation of law such as contractual tenant continuing possession or occupation of the premises on expiry of agreed period of tenancy or hairs of a tenant in possession or occupation of the premises after the death of the tenant. In the instant case the petitioner has categorically denied to have been inducted in the demised premises as contractual or statutory tenant. The respondent No,3 has also failed to bring on record any documentary proof to establish the relationship of tenant and landlord between the parties. This court in a case of identical facts and circumstances reported as Beejal Mal v. Punaji (1987 CLC 1134) has observed, which reads as under:- "Next I proceed to examine whether there existed any contractual or oral relationship of landlord and tenant between the parties. Admittedly there is written agreement of tenancy or no documentary evidence to show payment of rent by the appellants. According to respondent he inducted the appellants as tenants by oral agreement and that he used to issue rent receipts on - blank paper of which no counterfoil was kept. He also admits, that the appellants did not pay him rent in presence of anybody. In such case the burden of proof lies upon the landlord to prove the existence of relationship of landlord and tenant between the parties."
' While concluding it has further been observed that:--- "Considering all the facts discussed above and submissions of the learned counsel in my opinion the respondent has failed to prove the existence of relationship of landlord and tenant between him and the appellants. In such case the jurisdiction of the Rent Controller is ousted and the parties can seek redress in the civil Court. I accordingly allow the appeal and set aside the impugned order. Under the circumstances of the case the parties are allowed to bear their own costs."
The payment of utility charges alone in absence of any specific terms and conditions of tenancy would not be enough to prove existence of B relationship of tenant and landlord. The petitioner although has admitted the payment of utility bills but as owner and not as a tenant, as such burden lies upon the respondent No,3 to prove that the payment of utility bills were agreed between the predecessors of both the parties to be paid by the petitioner as tenant of demised premises, which burden the respondent No,3 has failed to prove. So far the legal position of the statement not shattered or rebutted during the cross-examination is concerned, the same principle shall also apply to the evidence of petitioner who in paras Nos.5, 6 and 7 of his affidavit in evidence has categorically stated that the mother of respondent No,3 had not demanded any rent during her life time and since 1983, they are enjoying the possession of demised premises as lawful owner and paying utility bills and other charges as exclusive owner of said property, the above submissions of petitioner were not shattered or rebutted in cross-examination. Learned counsel for the respondent No,3 while conducting the cross examination emphasized the execution of sale agreement and receipt of payment to be forged one. Furthermore the rate of rent at Rs,40,000/- per month for a residential house situated in Garden West in the year 1983 does not appeal to a prudent mind. Per respondent No,3 same is the rent till today, which is astonishing that during the period of 30 years no demand for enhancement of rent was made.
11. The nutshell of the observations reported in cases referred to by the counsel for the petitioner is that if the occupant is inducted in the premises as tenant and thereafter he claims to have purchased the property, the jurisdiction lies, with the Rent Controller and the tenant in such circumstances has to vacate premises and file suit for specific performance of sale agreement where after he would be given easy access to premises in case he prevails. In the instant case the appellant has never admitted that in the year 1983 he or his father had been inducted in demised premises as tenant, the same also finds support from the circumstances of case that since 1983 the petitioner was enjoying the possession and there was no demand of enhancement in rent during 30 years, and the respondent No,3 has filed ejectment proceedings after the appellant committed. Wilful default in payment of rent for 3-1/2 years a stated in para No,2 of the application under section 15. Sindh Rented Premises Ordinance. Though no limitation is provided for filing the ejectment application, but from un-necessary delay inference can be drawn adversely against the case of respondent No,3.
12. For the reasons discussed above and dicta referred hereinabove I have come to the conclusion that the trial Court and appellate Court have erred in deciding the point No,1 in affirmative, the respondent No,3 has failed to prove the relationship of landlord and tenant between the parties as such the Rent Controller had no jurisdiction to entertain the ejectment: application, therefore, the judgments passed the learned VIII Rent Controller dated 23-10-2010 in Rent Case No,656 of 2008 and learned VIIth Additional District Judge, Karachi (South) dated 2-5-2010 in F.R.A No,407 of 2010 are set aside and the ejectment application is dismissed.
' The Constitution Petition is allowed.