' HASAN FEROZ, J.---Through this constitutional petition, the petitioner has impugned the order dated 22-4-2011 as passed by learned Vllth Additional District Judge, Hyderabad in First Rent Appeal No,07/2007 Re: Nadir Hassan v. Mst. Amina, whereby the learned appellate court had allowed the First Rent Appeal of respondent No,1 and as a consequence set aside the order dated 22-1-2007 as passed by learned Vth Senior Civil Judge/Rent Controller Hyderabad whereby the rent application preferred by applicant Nadir Hassan was dismissed on the point that said applicant has failed to discharge the burden of proof about the relationship of landlord and tenant between the parties.
2. Precisely facts leading to this petition are that Nadir Hassan, the respondent No,1 herein had filed Rent Application No,07/2002 under section 15 of Sindh Rented Premises Ordinance before learned Vth Senior Civil Judge/ Rent Controller Hyderabad seeking ejectment of the petitioner Mst. Amina, claiming himself to be landlord/owner of House No,74 situated at Samanabad near Sindh Government Hospital R.S. No,79 Ward "G" Paretabad Hyderabad. The respondent No,1 in his rent application has taken the stand that the petitioner is her tenant since last 15 years and present rent of the premises was Rs,80 which was liable to be paid in advance on or before 5th of each english calendar month and that since November, 1994, the petitioner/tenant without any rhyme, reason, lawful, moral or equitable justification had stopped making payment of monthly rent in respect of said tenement. Repeatedly request was made to her but to no result and so she is liable to be ejected from the said tenement mainly on the ground of wilful default in payment or rent since 1994 and the respondent No,1 has prayed as under:--
(a) Order the opponent to be ejected and direct him to hand over the vacant physical peaceful possession to the applicant of the House No,74, situated at Samanabad, near Sindh Govt. Hospital R.S. No,79 Ward G Paretabad, Hyderabad Sindh.
(b) Order the opponent to deposit arrears of monthly rent at the rate of Rs,80 (Rupees eighty only) since the last three years as well as future monthly rent at the same rate till the final disposal of the above rent application;
(c) Costs;
(d) Any other relief;
3. Petitioner on being served with the notice of the rent application made her appearance before the learned Rent Controller through her learned counsel and filed written objections to the rent application whereby she had taken the plea as to non-existence of relationship of landlord and tenant and so also she has taken the plea that the very filing of the rent application was without any cause of action. She has further taken the plea that 10/11 years before she had purchased the said tenement /said house/said property for the sum of Rs,50,000 as agreed on the strength of sale agreement and she initially made advance payment of an amount of Rs,5000 while remaining amount was agreed payable at the rate of Rs,1000 till such time the sale consideration of Rs,50,000 is completed and then the applicant was supposed to execute the lease and she had disclosed in hand to the applicant that she is a poor lady and after purchase of the said house/said tenement she had raised construction and incurred an amount of Rs,30,000 and so also applied for the amenities at her own cost and there is no tenancy involved and she had denied specifically that he was tenant in respect of the said house said tenement and in nutshell she has prayed for dismissal of the rent application being not maintainable.
4. The respondent No,1 filed his affidavit in evidence before the learned Rent Controller at Exh. 16 with which he filed the supporting evidence and the learned counsel appearing on behalf of the petitioner/Opponent had exhausted the remedy to cross-examine to the respondent No,1/applicant at length.
5. Petitioner/Opponent then filed her affidavit-in-evidence and the learned counsel for the respondent No, 1/applicant had exhausted the remedy to cross-examine to the petitioner/Opponent.
6. The petitioner also filed her affidavit in evidence at Exh.33 and produced electricity paid bill May, 2006 in the name of Muhammad Ishaque (husband of the petitioner). She was also cross- examined by the learned counsel for the respondent No,1, applicant in the rent application.
7. That impugned order dated 22-1-2007 was then passed by the learned Vth Senior Civil Judge/Rent Controller Hyderabad whereby the rent application was dismissed by holding that no relationship of landlord and tenant exists in between the respondent/ applicant and petitioner/Opponent. Respondent/applicant being aggrieved of said order preferred First Rent Appeal No, 07/2007, which came up for hearing before learned VIIth Additional District Judge Hyderabad whereby the said rent appeal was allowed and the impugned order so passed by the learned Rent Controller dated 22-1-2007 was set aside with the following observations:-- 'The upshot of my above discussion is that learned Rent Controller while passing order dated 22-1- 2007 has committed illegality or irregularity, hence, requires interference of this court. Accordingly order dated 22-1-2007 is set aside. The instant F.R.A. Is allowed with no order as to costs with direction to appellant/ opponent to hand over vacant physical possession of tenement house of the appellant/applicant within a period of 30 days of passing this order'.
8. Learned counsel for the petitioner has contended that there is no relationship of the landlord and tenant between the parties, therefore, learned Rent Controller had rightly dismissed the rent application of the respondent No,1; the respondent No,1 had failed to produce rent agreement in respect of the premises to prove the relationship of the landlord and tenant; impugned order of the learned appellate court is against law, facts and equity and is based on assumptions and presumptions; the petitioner purchased the house in question from the respondent No,1 for a consideration of Rs,50,000 through sale agreement, according to which, the petitioner had to pay Rs,5000 in advance and Rs,1000 per month as instalment and the same were paid by the petitioner, however, the respondent No,1 obtained the original sale agreement from the petitioner for getting its photostat copies but neither returned the same nor executed lease deed in her favour. Learned counsel for the petitioner further contended that the respondent No,1 failed to prove relationship between him and the petitioner therefore, impugned order of the learned appellate court suffers from legal infirmity and is liable to be set aside, whereas he has supported to the order so passed by the learned Rent Controller.
9. On the other hand, learned counsel for the respondent No,1 supported the impugned order of the learned appellate court and has contended that the learned Rent Controller had failed to appreciate that absence of the tenancy agreement was not enough to draw inference as to nonexistence of relationship of landlord and tenant and he has contended that the stand taken by the petitioner/Opponent was not appealing to the mind of an ordinary prudent man that she agreed to purchase the said tenement for the sum of Rs,50,000 and that an amount of Rs,5000 was given by her whereas Rs,1000 were payable until adjustment of the remaining alleged sale consideration of Rs,45,000 and he has further contended that during evidence sufficient oral and documentary evidence were brought on record and so the learned appellate court was justified and had rightly set-aside the impugned order so passed by the learned Rent Controller. He has further contended that the counterfoil of the rent receipts so produced on record speaks as regards payment of rent and since the rent was not paid by the petitioner/Opponent the respondent No, 1/applicant was justified in filing the rent application on the ground of default and the judgment so passed by the learned Appellate Court while deciding the rent appeal is based on sound principles and same calls for no interference and he has prayed to dismiss the petition in hand and he has further contended that alleged sale agreement was not registered to which was mandatorily required under section 17 of the Registration Act and so also under the scheme of Transfer of Property Act and according to him there was admittedly default which was proved on the part of the petitioner/Opponent.
10. I have heard learned counsel for the respective parties and perused the record which is available before me with their valuable assistance.
11. The ejectment application by the respondent No,1/applicant was to the effect that he is owner/landlord of the tenement in question, which was let-out on rent to the petitioner/opponent and the rent at the rate of Rs,80 which was payable in advance on or before 5th of every english calendar month rent unpaid since November, 1994 and he filed the rent application in the year 2002 i.e, after about 8 years, with a prayer to order for the ejectment of the petitioner/opponent from the said tenement. On the contrary the petitioner/opponent had denied any such relationship and she claimed that she had purchased the said tenement/house from the respondent No,1 for the total sale consideration of Rs,50,000 out of which she had made payment of an amount of Rs,5000 in advance whereas the remaining sale consideration was payable in instalments till such time said payment is completed and then lease was to be executed by the respondent No, 1 in favour of the petitioner. Respondent No,1/ applicant alongwith the rent application had filed only one rent receipt No, 3652 dated 3-4-1999, whereas the petitioner/opponent along with the written objections dated 5-11-2002 though referred as to the sale agreement but she failed to annex copy of such agreement and in the bottom of the page No,4 of the written objection at the place "Documents filed with No, I and 2 the place is left open whereas on page 5 on the top there is mentioned documents relied upon (1) Original of the above and (02). Any other document discovered later on and found relevant shall be filed/got produced but the fact remains that no such evidence was actually filed alongwith the written objections. The respondent No,1/ applicant who filed his affidavit-in-evidence had also entered into the witness box and along with the affidavit-in-evidence he has filed the supporting evidence and he was cross-examined on behalf of the petitioner/ opponent he has admitted during his cross examination that rent agreement was not executed in between him and the petitioner/ opponent but he claimed that it was their verbal agreement and he always used to issue rent receipt to the opponent and he has referred to Form VII in which his name is appearing as owner of R. Survey No,79/2-18 Deb Gagoo Taluka Hyderabad on which the suit house was built. He denied the suggestion of the learned counsel for the petitioner/opponent as regards execution of sale agreement with opponent in which he sold out the suit house to opponent in consideration of Rs,50,000 and received Rs,5000 as earnest money as it was decided that opponent will pay Rs,1000 p.m. From remaining consideration. He had denied to the suggestion put to him on behalf of the petitioner/opponent that before filing of present suit, by him he tactfully received the rent agreement from opponent with assurance that he will execute sale deed to opponent in respect of suit plot/ house. After the closure of side of respondent No,1/applicant, the petitioner/ opponent filed her affidavit-in-evidence with which she had only filed the copies of the electricity bill at Exh.33/4 but she had failed to file the supporting evidence in any shape as regards the stand taken by her in the written objections and when she was cross examined she has replied to the question put to her by saying 'I do not remember the plot number purchased by me from applicant but I purchase the same in consideration of Rs,50,000 area 600 Sq.Ft. It is fact that it is not mentioned in my affidavit-in-evidence and my objection that the area of plot purchased by me is 600 Sq.Ft. The above plot was purchased by me in consideration of Rs,50,000 in instalments Rs,1000 p.m. It is fact that I not produced any payment receipt that I pay consideration amount to the applicant'. It was pursuant to the above pieces of evidence that the learned Rent Controller proceeded to dismiss the rent application with observation that there was no relationship proved and such findings of the Rent Controller was struck down by the learned Appellate Court while allowing the F.R.A. Preferred on behalf of the respondent No .1/applicant whereby following point for determination was framed:-- 'Whether order dated 22-1-2007 passed by learned Rent Controller is suffering from any illegality or irregularity and same required any interference of this court".
12. I have in my consideration that in the order dated 22-4-2011 passed by the learned Rent Controller, wherein the evidence adduced by the parties was thoroughly discussed and the conclusion reached under paragraph 12 of the said order is as follows:-- 'On careful scanning of R & Ps. Of learned Rent Controller as well as appeal in hand, reveals that, according to counterfoil of rent receipt No,003652 in the name of Muhammad Ishaque (husband of respondent/opponent), certified true copy of "Pherpher" register and approved layout plan of Housing Scheme Noorani Basti Phase-II existing on R.S. No,79 total admeasuring 2-18 Acres, situated at Deh Gujjo Taluka. City Hyderabad is the exclusive property of appellant/applicant Nadir Hassan, the respondent/ opponent is the tenant of appellant/ applicant and admittedly there is no denial from the side of respondent/ opponent that tenement house is not situated on said survey number'.
13. Thus the F.R.A was allowed with observation that the learned Rent Controller while passing order dated 22-1-2007 has committed illegality which requires interference of this court. Accordingly, order dated 22-1-2007 is set aside. The instant F.R.A. Was allowed with no order as to costs with direction to the appellant/ opponent to hand over vacant physical possession of the tenement house to the appellant/applicant within a period of 30 days of passing this order.
14. During the course of hearing much emphasis was made by the learned counsel for the petitioner by agitating that there was no relationship involved and so also he proceeded to place much emphasis on the case of Syed Mehboob Hussain v. Raza Shah and 2 others, reported in 2006 CLC Karachi at page 629 and according to him this judgment relates to the determination of relationship wherein it was laid down tenant means a person who undertakes or is bound to pay rent as consideration for possession or occupation of any premises by him/her, which position according to him was not emerged from the record and further according to him the relationship of landlord and tenant in fact is a combination of three components namely premises, landlord and tenant and unless all these three are present, there is no tenancy. He has also placed much emphasis on the decision of our own High Court as appeared in the case of Hafeezuddin and 2 others v. Badaruddin and 2 others PLD 2003 Karachi p.444.
15. In order to appreciate as to the submissions made I have gone through the aforesaid reported dictums. In the case of Syed Mehboob Hussain v. Raza Shah and 2 others as appeared in 2006 CLC Karachi at page 629 the two courts below have concurrently dismissed the ejectment application holding that there was no relationship involved, whereas in the case in hand there is consecutive orders by the two courts below as the learned Rent Controller had dismissed the Rent Application with observation as available on page 3 of order dated 17-1-2005 to which reads:-- "The plain reading of section 5 of Sindh Rented Premises Ordinance, 1979 apparently and clearly shows that the rent agreement is compulsory and mandatory for the purpose of proof of relationship of landlord and tenant between the parties, or has to prove his own contention".
16. The above view being erroneous was struck down in appeal by the learned Appellate Court where the F.R.A. No, 07/2007 was allowed and in the said judgment of appellate court the evidence so adduced at trial by the respective parties were discussed and the ejectment of the petitioner was ordered with direction to handover vacant physical possession of the said tenement within 30 days of passing of such order. The reported dictum as cited by the learned counsel for the petitioner is also distinguishable to the facts of the present matter.
17. The learned counsel for the petitioner has also cited the case of Hafeezuddin and 2 others v.
Badaruddin and 2 others and I have carefully gone through this dictum wherein it has been held on page 462 at placitum 'K' that `there can be verbal/oral tenancy also but in order to establish such tenancy an evidence of very high standard is required, from which the facts of tenancy is established on the principle of preponderance of probabilities' and thus the case law cited in itself contradicts to the plea as taken by the learned counsel for the petitioner.
18. For the foregoing reasons, I am clear in my mind that the respondent No,1 proved relationship with the petitioner as landlord and tenant and the petitioner has failed to make out any ground for interference in the impugned Judgment of the learned appellate court, which is based on sound reasons. The petitioner has failed to point out any illegality or irregularity committed by the learned appellate court in its Judgment and Decree, which have been passed while appreciating the .
Evidence available on record. Accordingly, instant petition being devoid of merits, is dismissed with no order as to costs. The impugned Judgment and Decree of the appellate court is hereby maintained with modification that the petitioner is allowed six months' time to vacate the premises.
However, by virtue of this order, there would be no impediment for the petitioner to seek remedy if so advised in relation to her claim before the competent court of law.