ABDUL HAMEED BALOCH, J. This appeal under Section 15 of the Balochistan Urban Rent Restriction Ordinance-VI of 1959 ("Ordinance") is directed against the order dated 17.11.2021 ("impugned order") passed by the Rent Controller, Gwadar (trial Court), whereby the application filed by the applicants/respondents was allowed.
2. The succinct facts leading to file the instant appeal is that the applicant/respondent filed an application under Section 13 of the Ordinance before the trial court for eviction of rented premises against the appellant/tenant on the ground of default of tenant and recovery for outstanding rent along with utility bills.
3. The appellant/tenant strongly contested the application by filing rejoinder to the application and denied the relationship of landlord and tenant, stated that he is paying the monthly rent to the owner of premises namely Tayab Bangali/landlord and has also spent Rs. 250,000/- on construction of the rented house. The trial court after framing the issues and having evidence allowed the application vide impugned order and directed the appellants to hand over the vacant possession of the premises in question to the respondent/applicant. The appellant being aggrieved of the impugned order filed the instant appeal.
4. Heard. Record perused. It is pertinent to mention here that one Hunain Ali filed Rent Application No.01/2017 before the Rent Controller against one Tayyab Bangali. The learned Rent Controller vide order dated 13.10.2018 disposed of the Rent Application No.1 of 2017. The relevant para reads as under: "With the above given reasons. I am of the considered view that, the respondent No.1 is neither proved to be authorized by the owner not the owner has executed any power of attorney in favour of the respondent No.1 to eject the applicant from the premises. Even the said owner was impleaded as parry and notice for the proceedings were also issued to him, yet he did not bother to contest the matter, I therefore, resolve that, the tenant/applicant cannot be ejected from the premises by the respondent No. 1 without due course of law."
5. The record reveals that the Rent Controller in Rent Application No.01/2017 clearly stated that the suit premises are owned by Murad Bakhsh (respondent in the instant appeal). The real owner has not executed power of attorney in favour of Tayab Bangali.
6. The applicant produced Qadir Bakhsh Patwari as AW-3 who produce the revenue record, where the Kh/Kh No.66/66 Khasra No. 128, measuring 2184 is in the name of applicant/respondent.
Admittedly the respondent is the owner of the premises in question. The appellant has not assailed the judgment of the Rent Controller, passed in Rent Application No.1 of 2017.
7. There is no evidence to substantiate the contention- of the appellant that the premises in question is rented by Tayab Bangali. On the other side the applicant through revenue record proved that he is the recorded owner of the property. The perusal of evidence indicates that the respondent is recorded owner of the house, which aspect of the matter has neither been rebutted by the applicant nor any sufficient evidence was produced to justify his possession in any lawful capacity.
8. So far, the contention of the appellant that the Rent Controller has no jurisdiction to decide the question of title, even the applicant/respondent failed to prove the relationship, are not tenable, because the tenant failed to produce any title document to support his possession over the premises in question. The Rent Controller is competent to determine the relationship of landlord and tenant between the parties. In the case of Ahmad Ali alias Ali Ahmad v. Nasar-Ud-Din (PLD 2009 SC 453) it was observed as under: "Though the Rent Controller is not competent to determine the question of title of the property assuming the role of a civil Court, but if the tenant fails to produce the documentary evidence to support his title over the premises in dispute the Rent Controller can determine the relationship of landlord and tenant between the parties. In case the tenant could not establish his possession over the property in dispute under the sale, he is not entitled to protect the same and the relationship of landlord and tenant would continue to exist as laid down in Mst. Azeem un Nisa Begum v. Ali Muhammad (PLD 1990 SC 382)."
9. The absence of tenancy agreement or rent receipt is not determining factor to establish relationship of landlord and tenant. In the absence of any evidence contrary, the owner of the property by virtue of his title is presumed to be landlord and person in possession of the premises is considered as tenant under the law or the tenancy may not be necessarily created by written instrument in express terms rather may also be oral and implied. Reference may be made to the case of Shajar Islam v. Muhammad Siddique PLD 2007 SC 45.
10. The appellant without any title document has challenged the title of respondent, such conduct of the appellant is sufficient to hold that the appellant is defaulter of the rent. The appellant in his rejoinder admitted that he did not pay rent to respondent rather payment was made to one Tayab.
The record reflects that the said Tayab is not recorded owner of the premises in question. In Makhan Ban's Case PLD 1984 SC 17, it has been observed that "the futility of his efforts to take up a dispute over title of the property, abandoning it at a crucial stage and withholding, rent on that account for over 10 months showed an element of contumacy and persistency in the misconduct."
11. The learned Rent Controller ordered the appellant to pay arear of rent from January, 2017 in the sum of Rs.4000/- per/month till handing over the vacant possession of premises in question to landlord, which is not correct. In this regard reliance is placed on the case of Zahid Hussain Khan v. Shams Ullah PLD 2020 Balochistan 78, whereby, it has been observed as under:
9. Keeping in view, the principle of rent laws the appellant was entitled for the arrears of rent, but not beyond the period of three years from the date of inception of eviction application, while the arrears of unpaid utility bills are also liable to be paid by the respondent, but these aspects of the case were not properly dilated upon by the rent controller, rather directed the appellant to approach the civil court for the leftover or declined relief. It is worthwhile to clarify that though Civil Court is competent enough to try the cases for recovery of arrears of rent and arrears of utility bills, but the jurisdiction of the Rent Controller is also not barred under the Rent Laws, rather fully empowers the rent controller to decide the issue of recovery of outstanding or payable rent and arrears of utility bills, if any. The Rent Controller to this extent has misapplied the relevant provisions of the Ordinance 1959, thus, erred in law.
The cumulative effect of the aforesaid discussion brings me to an irresistible conclusion that the appellant has proved his entitlement for recovery of the outstanding and payable arrears of rent, but not beyond the period of three years from the date of inception of the application, and he was also entitled to demand the payment of the arrears of utility bills. Therefore, the application is partly accepted to this extent only, and the respondent is directed, to pay the arrears of three years of rent till the date of filing the eviction application and for the period of pendency of eviction application, and also the outstanding amount of unpaid utility bills. However, the relief to the extent of arrears of enhanced monthly rent @ 25% after every three years is declined.
In view of above, the appeal being devoid of merits is dismissed.