' The four appeals mentioned above challenge the consolidated order, dated 27th October, 1977 passed by the Additional District Judge, Karachi in Rent Appeals Nos. 290, 291, 292 and 289 of 1975, whereby the order dated 24th April, 1975 passed by the Controller on preliminary issue of relationship of landlord and tenant was reversed and the consolidated order, dated 15th October, 1980 of the Vth Rent Controllor and XIIIth Civil Judge, Karachi in Rent Cases Nos. 2322, 2323, 2324 and 2325 of 1971, directing the respondents to vacate the disputed premises within one month. The appeals which arise out of the same order and are in respect of the same property and against the same respondents are being dealt with together in this judgment.
' The facts leading to the filing of the appeals are as under :-
1. Noor Muhammad son of Allandad claiming to have constructed building on Plot No, AK-15-11-S-9, Bav a Pat. Karachi about seven years earlier, filed applications under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against Saleh Muhammad, Noora, Mst. Haleema and Ibly stating that they were his tenants in respect of one room tenements in his aforesaid building and had committed default in the payment of rent. Mst. Haleema had committed default in the payment of rent for eight months and the other three had committed default in the payment of rent for four months from June, 1971. He had further claimed that the rate of rent payable by his tenant Ibly was Rs, 30 per month whereas in case of the other tenants it was Rs, 25 per month. On 20th October, 1971 Noor Muhammad son of Allandad died and respondents 1 to 12 who were his L.
Rs, (1 to 8 being adults and 9 to 12 minors through respondent No, 1, their mother) were, therefore, brought on record in the four applications before the Controller as applicants.
2. All the appellants in the proceedings before the Controller denied that they were tenants or that they had been inducted into the premises belonging to Noor Muhammad. It was their case in the written statements filed by them that, the plot in question belonged to a Parsi and the constructions were raised by them individually and belonged to them and not, to Noor Muhammad. They, therefore, look the plea that no rent was payable to the applicant. On the aforesaid pleadings the Controller framed the preliminary issue as under :- ' Whether there is relationship of landlord and tenant between the parties ?
3. The evidence of the parties in each of the cases was recorded by the Controller who in his order, dated 24th April, 1975 held that there existed no relationship of landlord and tenant between the parties and consequently dismissed all the ejectment applications with costs. Against the aforesaid consolidated order the respondents who had succeeded to the interest of Noor Muhammad the original applicant, filed appeals which were incidentally heard by the Additional District Judge who in his order, dated 27th October, 1977 set aside and reversed the order of the Controller holding that relationship of landlord and tenant existed between the parties and remanded the cases back to the Controller for disposal according to the law.
4. After the cases were remanded back to the Controller and application dated 1st September, 1980 was filed stating therein that as the relationship of landlord and tenant had been held to exist, the default stood established in accordance with the admission of the appellants and there was, therefore, no necessity of any further enquiry and ejectment should be ordered forthwith. The Controller after hearing the parties allowed the aforesaid four applications by consolidated order, dated 15th October, 1980 directing the vacation of the disputed premises within one month. The instant four first appeals, therefore, have been filed under section 21 of the Sind Rented Premises Ordinance, 1979 against the impugned order of the Controller, dated 15th October, 1980 and the impugned order of the Additional District Judge, dated 27th October, 1977.
5. Shafaat Hussain, the learned counsel for the appellants has raised the following contentions :
(1) That the impugned order of the Controller, dated 15th October, 1980 is bad in law and of no legal consequence as it is outcome of and based on illegal arbitrary and erroneous finding of the learned Additional District Judge, dated 27th October, 1977 on the preliminary issue of relationship of landlord and tenant.
(2) That the impugned order of the learned Controller ordering ejectment of the appellants, only on the ground that there was relationship of landlord and tenant between the parties, is altogether illegal inasmuch as the order of the learned Additional District Judge is not a legal order as no evidence was discussed and the order it-self is fanciful, arbitrary and perverse specially as induction of the appellants in the disputed premises or existence of any agreement of tenancy were not proved.
6. The order initially passed by the Controller holding that there did not exist any relationship of landlord and tenant between the parties was arrived at after full discussion and appreciation of the evidence on record and after considering the relevant provisions of law but the same cannot be said of the impugned order of the learned Additional District Judge in which there is no reference to the evidence on record and merely the contentions of the learned counsel for the respondents have been repeated without relating and examining the same in the light of the evidence on record.'
7. The existence or non-existence of relationship of landlord and tenant can be determined on consideration of the definitions of the terms "landlord" and "tenant" as given in clauses (c) and (i) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959. Since it is apparent from the evidence of Noor Muhammad, the predecessor of the respondents that he was paying Bhoon Bhara to the Parsi owners of the entire big plot for his portion, it is apparent that he is claiming lease of the rented land from the Parsi owners on which according to him he had built the premises rented out to the respondents. "Rented land" is defined in clause ( f) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, to mean any land let separately for the purpose of being used principally for business or trade. It is true that "landlord" as defined in clause (c) of section 2 aforesaid need not necessarily be the owner of rented land but before he can claim to be landlord and further before he claims that the respondents are his tenants, he has to prove that he is for the time being entitled to receive rent respect of premises in question whether on his own account or on behalf of or for the benefit of any other person. Clause (1) of the aforesaid section which defines "tenant" inter alia provides that it does not include a person placed in occupation of a building or rented land by its tenant unless with consent in writing of the landlord.
8. In the instant case Noor Muhammad admitted that Plot No, AK-15-I1-S-9, Bava Pat was a very big one on which thousands of persons have made constructions in which they live. The specification of the actual ground under occupation of Noor Muhammad and the identification of the aforesaid portion of the plot would appear to have been inconclusive and vague. It was, therefore, observed by the Controller who passed initial order holding that there was no relationship of landlord and tenant proved that, there is no reliable evidence to prove induction of the appellants into the building having four parts as claimed by the respondents. The evidence of Mr. Kandawala (Kekoo) who is part owner of the plot in question does not help the respondents as he has definitely stated that he had not permitted any of the tenants to sublet the premises. He had also stated that a number of persons had encroached upon the plot, some of whom were paying rent to him and some are not. He further stated as under :-- "There are many other occupants namely, Ibrahim, Haleema, Saleh Muhammad and Noor Muhammad.
9. It is, therefore, apparent that he has shown appellants Ibrahim alias Ibly, Haleema and Saleh Muhammad as having the same rights which Noor Muhammad has as an occupant.
10. It may here be stated that it has been argued on behalf of the respondents that since the evidence of Mr. Kekoo M. Kandawala had not been recorded in its entirety and was reserved his deposition cannot be considered. However, a perusal of the deposition would show that he was permitted to be cross-examined by the Advocate for the applicants (respondents herein) and it was only when that learned Advocate suggested that the original owner of Bava Pat was a Hindu, the witness expressed that he did not know of the fact but he had purchased the plot in 1936.
Thereafter, there is the note of the Controller which read as under :- "This witness wants to produce record. Reserved". It is, therefore, apparent that an opportunity was given for cross-examination of the witness and it was due to the specific question put that the witness wanted to produce documents. There is nothing on record to show that there was any move made by the respondents for re-summoning him and, therefore, it cannot be considered that whatever statements he made in his evidence were not tested by cross-examination.
11. As discussed by the Controller in his order, dated 24th April, 1975 it was for the applicants (now the respondents) to prove as to how the appellants were liable to pay rent for the disputed premises to the, applicant (Noor Muhammad) but except for his word there was nothing on record to prove that the appellants were his tenants. The Controller discussed the evidence on the record and found that Noor Muhammad had not produced any evidence other than his word to show that the appellants were his tenants. He further observed that the photostat copy of P. T. I. Issued by the Excise and Taxation Department, even did not show the names of appellants as tenants. The Controller after discussing the evidence on record and legal decisions, arrived at the finding that the opponents (appellants herein) cannot be treated as tenantsl of the applicants (the respondents).
12. Although in the order of the learned Additional District Judge, fault has been found with the decision of the Controller on the ground that he had discussed the evidence to consider title to the property, a perusal of the same on the contrary shows that the Controller was well-aware of the legal proposition that it was not for him to decide the title over the disputed property but he only had to decide with regard to relationship of landlord and tenant.
13. It was for Noor Muhammad to prove that he had inducted the appellants into the premises or that he had been getting rent from them but it is apparent that there is nothing on record to prove the tenancy. In Ahmad Din v. Mst. Muhammad Nisa and another (1), a decision of the erstwhile West Pakistan High Court, Karachi Bench, it was observed that mere oral evidence cannot be relied upon and to prove status of tenancy evidence of very high order is required.
14. The burden of proof lies heavily on the landlord to prove that he had constructed the building, parts of which are in possession of the appellants and as already observed, extract from the P. T. I.
Register does not help the case of the respondents in that, the tenants shown therein were different. There was evidence of Khan Muhammad, applicant's witness No, 3, who is a mason that certain construction was carried out in 1968. He has said nothing in his evidence which could go to prove the alleged tenancy by the appellants. Abdul Majeed who was examined on behalf of the landlord stated that he was a tenant of the applicant in 1955-1961. According to him there were two rooms in the building. He stated that he left in 1961. His evidence is inconsistent with the evidence of Khan Muhammad, mason according to whom when construction was done in 1968 there was only one room and not two as stated by Abdul Majeed. Similarly the testimony of witness Yasin is of no use as he does not even know how many rooms are there in the building. On the other hand, there is evidence of Ibrahim son of Hashim, Mst. Haleema, Saleh Muhammad son of Essa and Noor Muhammad totally denying that they had paid rent to Noor Muhammad. The appellants have stated that they built their own construction each and they are
(1) PLD 1961 (W. P.) Kar. 237 ' residing therein. The evidence of Umar son of Samad and Ladha son of Bachoo besides that of Kekoo M. Kandawala, is against the case of the applicant that the appellants were his tenants. The learned Additional District Judge, in his order has not at all considered the aforesaid evidence on record and the decision arrived at is not supported by the evidence on record. The impugned order is not a speaking order.
15. It is contended by Mr. K. B. Bhutto, the learned counsel for the respondents that the appeals were filed, on 23rd November, 1980 and are in time against the order of the Controller dated 15th October, 1980 but the same are time-barred against the order passed by the learned Additional District Judge, dated 27th October, 1977 which, therefore, had attained finality. The order with regard to relationship of landlord and tenant could not be considered as. Comprehensive decision of the four applications for ejectment on which orders had yet to be passed. Fragmentary decisions on preliminary points which necessarily delay the decision of cases leaving the main controversy still to be decided have been frowned at by the Superior Courts.And there would appear to be no reason as to why at the final stage the aforesaid decision could not be attacked in appeal.
16. In Ibrahim, v. Muhammad Hussain (1), a decision of the Supreme Court, it was observed as under :- "Reference has been made to these dates to underline the unfortunate fact that it has taken almost 10 years to bring the matter to this Court for its decision on a purely preliminary point, leaving the main controversy about the liability' of the respondent for ejectment to be determined in the fresh round of litigation between the parties. Fragmentaty decisions of this character have been described by their Lordships of the Privy Council in Nanhelal v. Umrao Singh "as most inconvenient (which tend to delay administration of justice."
17. In Rashid Ahmad v. Soofi Muhammad and another (2) a decision of the Lahore High Court relying upon the Supreme Court's, decision in Ibrahim v. Muhammad Hussain already referred to above, it was observed as under :- "The mischief, their Lordships were at pains to highlight, would be done if instead of appeals the High Court were to entertain writ petitions against directions made by Rent Controllers under first part of subsection (6) of section 13 of the Ordinance. Obviously, if, as a result, and in pursuance, of such a direction, the defence of a tenant is struck off, he would have an immediate remedy by filing an appeal.''
' It would thus appear that it is not necessary to have fragmentary decisions on preliminary, points and, therefore, in the final appeal filed all such points could be looked into. In Mls Kandawala & Co.
Ltd., Lahore v. Sheikh Fayyaz-ud-Din and others (3) Supreme Court's decision, it was observed as under :- "Admittedly there is no notification by the Government to the affect that appeals will lie against a finding of relationship of landlord
(1) PLD 1975 SC 457 (2) PLD 1977 Lah. 793
(3) 1969 SCM R 720 ' and tenant by Rent Controller, though this is really not material as will presently appear. The words used in "section 15" are "an order" but learned counsel for the petitioner does not find it possible to contend that these words are to be interpreted in their wide generality and he accepts that some qualification has to be added to these words for otherwise an order adjourning a case or summoning a witness would also be subject to appeal and learned counsel agrees that this could not be the intention."
It was further observed that, when a civil Court decides a preliminary issue as to jurisdiction in favour of the plaintiff no appeal lies against the finding and further that mere fact that an issue as to jurisdiction has been decided cannot be a ground for granting a right of appeal. This decision also makes it quite clear that instead of filing appeal against the decision on the preliminary issue the best course is to wait for decision of the case before filing appeal, which would naturally include the point decided at the preliminary stage also.
18. In the circumstances of the case, the impugned order of the Controller, ejecting the appellants from premises in dispute, dated 15th October, 1980 which was based on the order of the Additional District Judge, dated 27th October, 1977 cannot be sustained. The four appeals are allowed and the aforesaid orders set aside with the result that the order, dated 24th April, 1975 of the learned XIIIth Civil Judge and Controller shall hold the field and all the four applications shall be considered as rightly dismissed by him.
' In the circumstances however, there will be no order as to costs.