ZULFIQAR AHMAD KHAN, J.---This constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed by the petitioner against concurrent findings of the Courts below in rent proceedings.
2. Brief facts of the case are that petitioner claimed to be sole, absolute and exclusive owner of House No, 26, situated at Zulfiqar Colony Unit No,8 Latifabad Hyderabad, vide slip of Entitlement bearing No,11899 dated 17th September 1978 issued by Administrator Hyderabad Municipal Corporation Hyderabad in his favour . Out of said property , the petitioner while residing on the upper / backside, constructed two shops on the ground floor, which were let out to respondent No,1 in the year 2006 at the rate of Rs,15000- per month under verbal terms against security deposit of Rs,50,000/- refundable at the time of termination of tenancy , since tenant did not increase the rent despite many requests, on 22.03.2014 the petitioner requested respondent No,1 to vacate the rented premises as his children had grown up and being jobless wanted. to start their own business in the said premises, and because since April 2014 the respondent No,1 was also not paying rent to the petitioner . The landlord (petitioner) eventually filed an application before VI-Senior Civil Judge/Rent Controller Hyderabad, being Rent Application No,139/2015, on the ground of default in the payment of monthly rent and personal bona fide use. The Rent Controller after hearing the parties dismissed the rent application vide order dated 23.2.2017.
3. As to the point of relationship of landlord and tenant, default and personal bona fide use, the learned Rent Controller gave the following findings.
"From perusal of record, it appears that opponent has denied the relationship of landlord and tenant between applicant himself. It is an admitted position that there is no rent agreement between parties. No doubt that tenancy may be oral as well, however , thus it must be proved through strong oral and corroborative evidence. It is a matter of record that affidavits in evidence of total four witnesses were filed from applicant side. Out of them one witness namely Sirajuddin was never appeared for evidence, hence his affidavit in evidence could not be considered.
Interestingly , the rent application is filed by applicant Muhammad Ahsan through attorney/his wife namely Mst.
Zarin Begum but later on the applicant also examined himself as witness No,2. From perusal of affidavit in evidence of applicant's attorney and her three witnesses, it appears that they all are same and similar . It is duly mentioned in all affidavits in evidence that shop No,2 was let out to the opponent in the month of March, 2006 on verbal terms at the rate of Rs,1500/- per month against the security deposit of Rs,50,000/- refundable at the time of termination of tenancy . On the contrary , the applicant's witness Islam deposed during cross-examination that he has not read his affidavit in evidence, the same is submitted by the advocate and he does not know whether it is true or false. The said witness has also admitted that the rent was never paid to applicant by opponent in his presence. Similarly , the actual applicant namely Muhammad Ashan, who appeare d and examined as witness has also deposed that he does not know the contents of Fard-e-Haqiqat and the language of power of attorney . Even . he deposed that he does not know where he had put his signature on power of attorney and he also does not know the contents of his affidavit in evidence. It is an admitted position that applicant or attorney has not deposed the names of witness in whose presence it was executed and security deposit or monthly rent was paid. The only witness Islam is not the witness of tenancy and also rent was never paid and recei ved in his presence. In absence of any tenancy agreements and receipt is written Strong oral corroborative evidenc e was required, which applicant has failed to produce. Under these circumstances, the relationship of tenant and landlord between parties are not established and in case where tenancy itself is not established no question of default and personal bona fide use arise. Even otherwise, it is pertinent to mention that the applicant has not specifically mentioned the details of his personal use. The name of his son, if any, or the nature of business, which he, intends to do are not deposed by attorney or applicant as being witness. Similarly , no sufficient evidence is placed on record in respect of default, if any. Under these circumstances, the applicant has failed to prove these points Nos,1 to 3 and the same are replied as, not proved."
4. The appellate Court dismissed petitioner's appeal vide order dated 22.07.2017, which is impugned in the instant petition.
5. Learned counsel for the petitioner took, this Court at length through the orders passed by Courts below and the relevant provision of Sindh Rented Premises Ordinance, 1979. She submitted that the petitioner is lawful owner of the house vide Slip of Entitlement bearing No,11899 dated 17th September 1978 issued by Administrator Hyderabad Municipal Corporation Hyderabad in his favour in which he had constructed two shops on ground floor, out of which one was rented out to the respondent No,1 and other to someone else who is still enjoying lawful tenancy . She stated that the Rent Controller has not given findings on the basic question as to in what capacity said respondent was occupying the rented premises as he denied the landlord/tenant relationship. As well as she alleged that findings are given without appreciating the evidence available on record which spoke volumes about the relationship of landlord and tenant between the parties. She submitted that the trial Court without applying judicial mind came to the wrong conclusion that there existed no relationship of landlord and tenant between the parties. She additionally contented that the tenant has caused endless pains to the landlord as being a habitual defaulter , who never paid the rent in time so also the rented shops are required for personal bona fide use for the children of the petitioner .
6. The learned counsel stated that the learned trial Court while dealing with point No, 1 has not discussed the admission of respondent No, 1 whereby he has admitted that he has not produced any ownership document of the demised shop so also that electricity bills of the shop in question are in the name of the petitioner , which shows that the status of respondent nothing but a tenant of the petitioner . She further submitted that the rent controller has failed to consider the evidence of respondent No, 1 which clearly shows his cleverness to usurp the property of illiterate person on technical grounds. She further stated that the trial Court while answering point No,3 has totally ignored the evidence of respondent No,1 who has given contradictory evidence in as much as he on one hand denied to know the sons of the petitioner and on other hand recognize them present in the Court.
7. The learned counsel further stated that the photographs of demised shop as well as house of petitioner were supplied to the Court but unfortunately these important pieces of evidence were also not brought on record, which caused miscarriage of justice. She stated that bundle of electricity bills were also provided which too counsel for petitioner did not brought on record. She stated that the findings of the trial and appellate Courts are contrary to law and against settled provisions of law thus cannot be sustained in the eyes of law .
8. To the contrary , learned counsel for respondent/tenant submitted that there existed no relationship of landlord and tenant between the parties as such the Rent Controller has rightly dismissed the ejectment application and the appellate Court has also not committed any illegality or irregularity . He submitted that this petition has been filed against the concurrent findings of the Courts below which are against the petitioner . He submitted that there was no written tenancy agreement between the parties and petitioner has badly failed to prove the relationship of landlord and tenant. He has produced copy of lease deed bearing No,40469 dated 20.09.2017, registered in his client's favour to show that his client has acquired title to the shop in question.
9. Heard the parties and reviewed the record.
10. While this court is conscious of its limitation under Article 199 in rent matters, however it is also cognizant of its mandate to enforce property rights protected by the Constitution of the Islamic Republic of Pakistan, 1979 through Articles 23 and 24. As per Slip of Entitlement bearing No,11899 dated 17th September 1978 issued by Administrator Hyderabad Municipal Corporation Hyderabad the petitioner is clearly owner of the property in which two shops were built on the ground floor, out of which on was given to the respondent No,1 (tenant) and other shop was given to another tenant with whom the petitioner has working landlord/tenant relation for decades. To a question raised to the by learned counsel for the petitioner that in what capacity the respondent No,1 has been occupying the rented premises, as his client has admitted in cross-examination that he has not produced any title documents in his favour before any forum, learned counsel for respondent No,1 has hand-produced a copy of lease deed dated 20.09.2017 in his support to challenge the rival fact that the petitioner was owner of house in which these two shops were constructed as of 17.09.1978. The trouble is that even this mischievously carved instrument (during the pendency of these rental, proceedings) was not present before the courts below which upheld the occupancy of the demised shop by the respondent No,1 as those courts were seemingly obsessed with the idea that no relationship of landlord/tenant existed between the parties. In such circumstances where a tenant denies any relationship with the landlord the path shown in the Apex Court's judgment reported as 2007 SCMR 128 is to be followed where upon landlord's filing of an ejectment petition on ground of default in payment of rent, tenant denied relationship of landlord and tenant between the parties as tenant contended that in consequence to cancellation of allotment of property in the name of predecessor-in-interest of landlord they (landlord) ceased to be owners of premises, the Apex court went to the root of the controversy by asking question as to how the tenant was admitted and induced in the premises under his possession as tenant. Since there was no other plausible reason, no title or possessory rights was at hand , the Apex Court held that in these circumstances it is established that there existed a landlord/tenant relationship in between the parties as ownership of property was not an essential condition to create relationship of landlord and tenant and tenant by denying status of landlord subsequent to their induction in premises as tenant by landlord had disentitled themselves from seeking equitable relief in ejectment petition. In the case reported as 1998 SCMR 415 in similar circumstances where tenant denying relationship with the landlord, the Apex Court guided that the outcome be based on the evaluation of evidence produced by the rival parties. In case evidence from the landlord relating to his title was better in quality and quantity and where tenant had simply denied relationship and claime d that he was not occupant of shop owned by landlord and no evidence was brought on record to legitimize his occupancy , Courts are bound to give favour to the landlord.
11. In the given circumstances, after careful consideration of the material on record and the evidence, I reach to an irresistible conclusion holding that both the orders of the Courts below are flawe d on account of non-application of judicial mind and having failed to follow the dictum laid down by the Apex Court in the aforementioned cases.
Accordingly , findings of both trial and appellate Courts are set aside. Thus the respondent No,1 is directed to handover vacant possession of the rente d shop to the petitioner within seven days from the date of this order of this Court.