' MUHAMMAD IQBAL KALHORO, J.---Petitioner has challenged the concurrent findings recorded by the two courts below in rent case No,860/2001 filed by respondent No,3 Abdul Saleem Dadabhoy in respect of Flat No,4/2 Dadabhoy Centre, Shahrah-e-Faisal Karachi on the grounds of default in payment of rent. The petitioner resisted the said case on the pleas that the lease agreement showing her tenancy was, a forged document and in fact she was owner of the said flat which was purchased by her late husband who had made entire payment of the flat to the father of respondent No,3. She never resided in the said flat as tenant, therefore, she was not required to pay rent to respondent No,3.
2. During the pendency of the rent case, respondent No,3 filed application under section 16(1) of Sindh Rented Premises Ordinance, 1979 ("the Rent Ordinance"). This application was allowed and the petitioner was directed to deposit rent arrears from May 1998 to June 2001 at the rate of Rs,1600/- per month and future rent at the same rate. The total amount calculated was Rs,60,800/- which was to be deposited by the petitioner in the court on or before 20.10.2001. By the same order learned Rent also directed respondent No,3 to not withdraw the would-be deposited amount till decision of the case. The petitioner failed to comply, resultantly, her defense was struck off vide order date 20.04.2002, and she was directed to hand over possession of the flat within 60 days. The appeal preferred by her against that order was dismissed by the learned appellate court vide impugned judgment dated 25.10.2013 prompting her to file instant petition.
3. Learned counsel for the petitioner has argued that both the courts below have failed to appreciate that there was no relationship of tenant and landlord between the parties and therefore learned Rent Controller had no jurisdiction to try the case; that the petitioner being owner of the flat was not required to pay rent to respondent No,3, and this very fact has not been appreciated by the two courts below; that learned Rent Controller failed to frame preliminary issue regarding relationship of tenant and landlord between the parties, and due to this omission the petitioner has been seriously prejudiced against. He has further contended that the petitioner had filed an application under section 21 (3) of the Rent Ordinance before the appellate court for placing on record a letter dated 19.03.1985 by Messrs Dadabhoy Construction Company (Pvt.) Ltd.
Showing transfer of the said flat in her favour but it was not allowed, which has resulted into a loss of opportunity to the petitioner to establish her case on merits. In support of his arguments, he has relied upon the case-laws reported in 2007 YLR 363, 2009 M LD 144, 1992 SCM R 1149 and 2010 YLR 1201, and has lastly prayed that the matter may be remanded to the learned Rent Controller for decision on merits.
4. On the other hand, learned counsel for the respondent has supported the impugned judgment and in support of his contentions has relied upon the decisions reported in PLD 2014 SC 347, 2000 SCM R 632, 2000 SCM R 845, 1993 SCM R 1360, 2012 YLR 1713, 2007 YLR 2982, 2006 SCM R 1505, 2003 CLC 416, 1998 CLC 988, 2013 YLR 2526, 2011 SCM R 320, 2006 SCM R 1068, 1986 CLC 1770, PLD 2007 SC 504, 1995 M LD 840, 1991 CLC 937 and 1988 CLC 906.
5. I have considered the contentions of the parties, gone through the record, and have taken guidance from the case laws cited at the bar. It may be mentioned that prior to filing of the present rent application, respondent No,3 had filed another rent application No,1658/1991 against the petitioner, which was decreed ex parte on 09.01.1993, but that, as per respondent No,3, he could not get executed due to demise of his father and then owing to the requests made by the petitioner and her husband pleading always for further time.
6. As the learned counsel for the petitioner has pleaded for remanding the case back to the trial court in his arguments, I tend to have a look at the letter heavily relied by him to establish title of the petitioner over the flat, and which he intends to rely on in the rent case if it is remitted to the learned Rent Controller. This letter is available at page No,97 of the file and is addressed to the petitioner by name; it purportedly has been issued on 19.03.1985 (when her husband was still alive) by Muhammad Hussain Dadabhoy, informing her that the said flat has been surrendered by Mrs. Ghulam Rafiqa (the previous owner) and has been transferred to her name. Except this letter the petitioner does not possess any other evidence to support her claim of ownership of the flat. She neither has sale agreement nor any receipts to show any payment of sale consideration made to the owner of the flat to lend any iota of credence to this document. No details are available to the effect that what was the sale consideration, how it was paid and when such sale took place. The learned counsel for the petitioner has also not denied that the petitioner even cannot cite a witness before whom such transaction took place. This letter is addressed to her and appears to suggest that the flat has been transferred to her name, which strongly negates her assertion set out in the written statement that her husband had purchased the flat and had paid the entire sale price, because in such eventuality fundamentally the letter should have been addressed to her husband and not to her and the flat ought to have been transferred in her husband's name. This I tend to observe only after noting that in the written statement it is not the petitioner's case that although the flat was purchased by her husband but he purchased it in her name. While this document denotes that the said flat has been transferred to the petitioner's name but in fact there is no such record indicating transfer of ownership of the flat in favour of the petitioner. As against it, respondent No,3's claim of ownership of the flat is based on the registered sale deed dated 21.02.2001, which admittedly has not been challenged by the .Petitioner in any proceedings. Even for enforcement of her purported right of ownership over the flat, the petitioner has not filed any suit so far by relying on this letter. This document the veracity of which has not yet been put to the taste of trial by the petitioner cannot be given importance over the registered document in favour A of respondent No,
3. It is therefore conspicuous that this letter would be of no help to the petitioner even if this matter is remitted to the trial court for decision afresh on merits.
7. I have also considered the contention of learned counsel for the petitioner that before striking off the defense of the petitioner, the learned Rent Controller in view of denial of the petitioner ought to have first determined the issue of relationship of tenant and landlord between the parties. In this regard, it may be observed that the rule that, where the tenant claims ownership of the premises, the Rent Controller should determine such issue first before directing the tenant to deposit arrears of rent or future rent is not absolute. The tenant at the first instance has to show prima facie evidence in support of his assertion to qualify for such determination to be undertaken by the Rent Controller first. And where the tenant fails to even bring on record prima facie evidence in his support on this point, no prejudice would be caused to him; if he is directed to deposit arrears of rent or future rent, because such order is tentative in nature and can be substituted or adjusted by the final order on determination of issues. In the present case the petitioner's plea of ownership of the flat was manifestly without any supporting evidence. Even she did not produce the letter, discussed above, before the Rent Controller to establish prima facie arguability of her case. The arrears of rent which had she deposited would have remained in the safe custody of the court and would have been returned to her, had she been able to establish her case on this point. But she adamantly avoided to obey the order and kept on claiming a right which ostensibly is not based on any evidence. Lease agreements showing petitioner's tenant cannot be held forged just because she has termed them so in absence of any evidence supporting her contention. Learned counsel for the petitioner has not been able to cite any good reason to warrant interference in the concurrent findings against the petitioner and he has not been able either to indicate that such findings are based on misreading or non-reading of the material.
8. In view of foregoing discussion, I am of the view that this petition is without any merits and is dismissed accordingly.