' This is a second rent appeal filed by the appellant, Syed Aijaz Hussain. Rent Case No, 635 of 1975 was filed by respondent, Azimullah against the appellant for his ejectment and the property, from which ejectment was sought, was referred to in para. 1 of the ejectment application as "plot: measuring about 39 square yards situated in front of Quarter No, 707, Sakhi Jan Line (Press Quarter), P.I.B. Colony, Karachi,. "According to the respondent, the premises in question were in occupation of the appellant as a tenant at a monthly rent of Rs,30 and as the appellant had not paid the rent for 11/2 years, the appellant was defaulter. Grounds of personal requirement, nuisance and damage to the property were also taken up in the ejectment case. In the written statement/objections filed by the appellant, the averments contained in the ejectment were denied and it was mentioned that even the number of the house in question was not specified by the respondent, who falsely claimed to be the owner of the house. The appellant stated that the number of quarter in his possession was IB-7 and the new number was SK-45, P.I.B. Colony, Karachi.
The appellant, a Dentist by profession, stated that he had purchased the quarter in question in 1967 and then put up a suitable structure on the plot and was continuously living therein and also had a Dental Clinic in the premises. It was also averred that the quarter was assessed by the Excise and Taxation Officer, Karachi, in 1973 and PT-1 and PT-13 were issued to the appellant by Assessing Authority in December,1973. It was also claimed that electricity was obtained by the appellant in his name in 1970 and water-connection was also obtained from the K.M.C. In 1974 in the name of the appellant. In short, the appellant claimed to be the owner of the quarter and denied the relationship of landlord and tenant between the parties. Preliminary issue regarding relationship of landlord and tenant was framed by the learned Rent Controller. Two witnesses were examined on behalf of the respondent namely the respondent himself and one Juma Shah. The appellant examined himself only. By order dated 12th January, 1978, the learned Rent Controller decided the preliminary issue in favour of the respondent holding that relationship of landlord and tenant existed between the parties and also by the same order the ejectment A of the appellant was ordered. The appellant filed an Appeal No,79 of 1978 before the learned First Appellate Authority. In the memo. Of appeal in First Appeal No, 79 of 1978, two main grounds were urged that the relationship of landlord and tenant did not exist between the parties and that the ejectment was not properly ordered, as no opportunity had been granted to the appellant to make his defence on merits. By order, dated 17th May,1978, the learned Ilnd Additional District Judge, Karachi, remanded the case to the Rent Controller with the following words:- "The learned Rent Controller after holding that there was relationship of landlord and tenant with the parties was required to pass a tentative order for deposited of arrears of rent, etc. And thereafter framing the issues would have proceeded with the matter according to law before passing a final order of ejectment against the appellant.
' In view of the above position, the case is remanded to the learned Lower Court with the directions to pass a tentative order for deposited of rent, frame issues and record evidence and then pass a final order in accordance with the law.
' This appeal is allowed accordingly with no order as to costs."
' After remand, the learned Rent Controller passed the tentative rent odder dated 27th November,1978. Admittedly, no rent was deposited by the appellant and as such by order, dated 4th March,1979, the defence of the appellant was struck off and he was ordered to be ejected. The appellant MO Appeal No,150 of 1979 and the learned IIIrd Additional District Judge, Karachi, by his order, dated 15th December,1979 dismissed the appeal. The orders of the Rent Controller and the learned IIIrd Additional District Judge have been impugned in the present second appeal before this Court. I have heard Mr.Akhtar Mahmood Khan, learned counsel for the appellant and Mr. Dewan Bashir Ahmad, who appeared on behalf of the respondent.
2. It may be observed here that the question of title to the property in question has not yet finally been decided and a revision under section 64-A of the Co-operative Societies Act, 1925, filed by the appellant is Pending before the Registrar and the decision in revision will finally determine the title to the property in question .In the present proceedings the question of title is not being decided and it is made clear that nothing contained in this judgment will influence or affect decision of the revision pending before the Registrar Co-operative Societies.
3. Admittedly, there is a default on the part of the appellant in the deposit of rent as the tentative rent order dated 27th November, 1978 has not been complied with. However, learned counsel for the appellant has urged that the appellant was challenging the relationship of landlord and tenant between the parties and if this Court comes to the conclusion that such relationship did not exist the ejectment order consequential to the striking off the defence by the learned Controller will not be maintained. A preliminary objection was taken by Mr. Dewan Bashir, learned counsel for the respondent that the finding about the relationship of landlord and tenant between the parties, by order, dated 12th January 1978, had attained finality inasmuch as in First Appeal No,79 of 1978 the learned second Additional District Judge did not upset such finding but remanded the case on merit to the Rent Controller and no appeal was filed by the appellant against the order, dated 17th May, 1978 of the learned First Appellate Authority. Both the learned counsel cited and relied upon the judgment of the Supreme Court in the case of Ibrahim v. Mohammad Hussain PLD 1975 SC
457. According to Mr. Akhtar Mahmud, learned counsel for the appellant, the order, dated 17th May, 1978 passed by the learned First Appellate Authority (Second Additional District Judge, Karachi) remanding the case to the Rent Controller, was not appealable by the appellant. According to the learned counsel, after the ejectment order had been set aside by the learned First Appellate Authority, no final order remained in the field against the appellant and as such no appeal could have been filed by the appellant against the order, dated 17th May, 1978. As observed earlier, reliance was placed by the learned counsel for the appellant on PLD 1975 SC 457. On the other hand, it was contended by Mr. Dewan Bashir, learned counsel for the respondent, that if the only order that had been passed by the Rent Controller was that the relationship of landlord and tenant existed between the parties, no appeal could have been filed but in this case not only the order of the Rent Controller held that relationship of landlord and tenant existed between the parties but the said order also directed ejectment of the appellant and it is for this reason that appeal was filed by the appellant himself and in these circumstances when the learned First Appellate Authority passed an order remanding the case to the Rent Controller, a further appeal could have been filed by the appellant before the High Court under section 15(4) of the 1959 Rent Ordinance. It was contended on behalf of the respondent that as no second appeal was filed against the order, dated 17th May, 1978 of the learned Second Additional District Judge, Karachi, in Appeal No, 79 of 1978, the finding about existence of relationship of landlord and tenant between the parties attained finality and it was then not open to the appellant to challenge this finding.
4. In the order, dated 17th May, 1978 of the learned First Appellate Authority there is no finding about relationship of landlord and tenant between the parties. The operative portion of the order, dated 17th May, 1978 has already been reproduced hereinabove. What the learned First Appellate Authority did was to allow the appeal of the appellant and remand the case to the learned Rent Controller with the direction to pass a tentative rent order for deposit of rent, frame issues, record the evidence and then pass a final order in accordance with law. The order, dated 17th May, 1978 of the First Appellate Authority was in favour of the appellant, as his appeal was allowed and the ejectment order passed against him was set aside. After the order, dated 17th May, 1978 of the First Appellate Authority the only order that remained in existence was that of the Rent Controller and that was that relationship of landlord and tenant existed between the parties. In my view, no further appeal could have been filed by the appellant against the order, dated 17th May, 1978 of the First Appellate Authority, as firstly, the said order was in favour of the appellant, as his appeal was allowed and the final order of ejectment had been set aside and secondly, as observed earlier the only effective order that remained in the field was the order of the learned Rent Controller that relationship of landlord and tenant existed between the parties and against that finding alone, when a final order had not been passed against the appellant, no further appeal could have been filed. It is, therefore, held that the order, dated 12th January, 1978 of the Rent Controller, insofar as it related to existence of relationship of landlord and tenant between the parties, had not attained finality and that after the final order of ejectment had been passed, the appellant was entitled to challenge this finding.
5. On merits, on the issue regarding the relationship of landlord and tenant between the parties, the respondent had given evidence and in support thereof he had examined one Juma Shah. The appellant examined himself. There is no evidence in writing to show that relationship of landlord and tenant existed between the parties .There is neither any tenancy agreement nor is there any evidence in writing about the payment of rent by the appellant to the respondent in the shape of a money-order, counterfoil of any receipt, any letter from the appellant, any notice by the respondent to the appellant or any other document. There is only the testimony of the respondent and the witness, Juma Shah. The oral testimony of the appellant in this case is not sufficient in law to base a finding that the relationship of the landlord and tenant existed between the parties. Both the parties have been claiming ownership of the property in question and the question of title is still not finally decided and a revision filed by the appellant is still pending. Insofar as documentary evidence is concerned, both the parties have produced documents for establishing their title to the property. As observed earlier, the question of title is not required to be determined in the present proceedings and as such no observation is being made about the strength of these documents. In the circumstances of the case, the bare assertion in the oral evidence of the appellant that respondent is his tenant could not have created relationship of landlord and tenant between the parties. The evidence of Juma Shah is also vague and the only material statement that he makes is that at the time of giving the property on rent by the respondent, the appellant had paid Rs,30 in the presence of the witness to the respondent. It may be pointed out here that even according to the respondent, the property had been transferred to the respondent in January,1975. The instant rent case was filed in February,1975, that is only a month after the allotment of the property to the respondent. If the property had been let out to the appellant after its transfer to the respondent in January, 1975, the entire evidence led on behalf of the appellant becomes unbelievable. According to the case of the respondent, the appellant had been his tenant for over six years and that he had not paid any rent for 1 years. If the property had been allotted to the respondent in January, 1975 and the rent case had been filed in February,1975 and the property had been rented out by the respondent to the appellant after its transfer to respondent, the appellant could not have been the tenant of the respondent for six years and in any case could not have been in arrears of rent for 1 years. In the absence of any documentary evidence establishing relationship of landlord and tenant between the parties, in these circumstances of this case, on the basis of the oral testimony led on behalf of the respondent, a finding could not be reached by the Rent Controller or by the First Appellate Authority that relationship of landlord and tenant existed between the parties.
3. As a result, this Second Appeal No,448 of 1979 is allowed and the impugned orders, dated 4th March, 1979 of the learned Rent Controller and the impugned order, dated 15th December, 1979 of the learned IIIrd Additional District Judge, Karachi, are set aside. There will be no order as to costs.