' Ejectment Application No,1995 of 1974 was filed on 6th August, 1974 by the respondent/landlord for the ejectment of appellant/tenant from the premises in question on the ground of default in the payment of rent with effect from November,1973 and on the ground of personal requirement.
Relationship of landlord and tenant was denied by the appellant/tenant. It was further averred by the appellant/tenant that although rent had not been claimed in the ejectment application from November 1973, the appellant had paid the rent of the premises to the previous owner through his attorney upto 31st January, 1974 and thereafter the attorney of the previous owner had started to avoid accepting rent and therefore the appellant filed Misc. Rent Case No,11/74 in which he deposited the rent upto date in the name of previous owner. A preliminary issue was framed on the question of relationship of landlord and tenant and after recording evidence on half of the parties the learned Rent Centre the ejectment application holding that relationship of landlord and tenant did not exist between the parties. On 28th August 1976, respondent/landlord filed Appeal No,369/76 and by order dated 14th September, 1980 the learned Second Additional District Judge, Karachi allowed the appeal holding that the relationship of landlord and tenant existed between the parties and ordered ejectment of the appellant on the ground that the appellant had committed default in the payment of rent. This Second Appeal has been filed by the appellant/tenant challenging the order dated 14th September, 1980 of the First Appellate Authority. I have heard Mr. Rehanul Hasan Farooqui learned counsel for the appellant and Mr. Munawar Malik, learned counsel for the respondent.
2. Apart from raising the argument that on the basis of the evidence on record on the preliminary issue it had not been established that relationship of landlord and tenant existed between the parties, it was contended by Mr. Rehanul Hasan Farooqui, learned counsel for the appellant, that the First Appellate Authority after having come to the conclusion that the relationship of landlord and tenant existed between the parties should not have straightaway ordered the ejectment of the appellant but should have remanded the case to the Rent Controller for disposal on merits after recording evidence on the two issues relating to personal requirement and default. On the other hand it was argued by Mr. Munawar Malik that the preliminary issue relating to relationship of landlord and tenant had been correctly decided by the First Appellate Authority and no illegality was committed by the learned Additional District Judge, Karachi when he straightaway passed an order of ejectment instead of remanding the case to the Rent/Controller for recording evidence on the point of default and personal requirement and directing the Rent Controller to decide the rent case on merits.
3. In my view it is not an absolute rule that in every case where relationship of landlord and tenant is denied by the tenant and the Rent Controller Tribunal comes to the conclusion that relationship of landlord and tenant exists, an ejectment order is to be passed automatically without recording further evidence. There are cases where it may not be necessary to record any further evidence where admitted position is that the rent had not been paid but there can be cases where in spite of the relationship of landlord and tenant having been denied by the tenant, he has pleaded a case on merits also and which requires consideration in which cases, the defence of the tenant should not be struck off automatically and ejectment order passed but further evidence should be recorded and the ejectment application decided on merits. In view in the facts and circumstances of the instant case especially in view of the defence taken by the appellate in his written statement about the cloud on the title of the respondent coupled with the averment that rent had been paid in advance till January, 1974 to the previous landlord whereafter rent had been deposited in a Misc.
Rent Case, the defence of the appellate should not have been struck off automatically by the learned First Appellate authority after coming to the conclusion that relationship of landlord and tenant existed between the parties but should have remanded the case to the Rent Controller for recording further evidence and deciding the ejectment case on merits. By that impugned order, the respondent has also been prejudiced as there is no finding on the ground of personal requirement taken by the respondent in his ejectment application. I am of the view that it is a fit case for remand of the case to the Rent Controller for deciding the case on merits.
4. As a result, Second Appeal No,386/80 is allowed to the extent that the case is remanded to the concerned Rent Controller for recording further evidence that may be adduced by the parties and deciding the case on merits after notice and giving opportunity of hearing to both the parties. It is further directed that the concerned Rent Controller will finalize this case within six months of the receipt of record by him. It is not necessary in the circumstances to give any finding in this Second Appeal about the issue relating to relationship of landlord and tenant between the parties. If a final order is passed against the appellant on merits, it will be open to the appellant if he files an appeal to raise pleas challenging the decision of the First Appellate Authority on the point of relationship of landlord and tanant between the parties.
' There will be no order as to costs.