1. ' This First Rent Appeal is directed against the order dated 14-12-1983 passed by IVth Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter called as the said Ordinance) was allowed and the appellant was directed to hand over the vacant possession of the premises in dispute to the respondents within 60 days from the date of the order.
2. ' The facts which give rise to this appeal are that the respondents are sons daughters/wife of late Niamatullah who was the owner of the premises. Said Niamatullah died in the year, 1974 or 1975.
3. After the death of Niamatullah, the appellant No,1, widow of said Niamatullah, applied for the change of ownership in her name. This application was moved on 22-11-1975. It seems that she also enclosed with her application deed of surrender from other legal heirs, On the basis of this application the Excise and Taxation Officer changed the name of ownership. On 9-9-1981 she served a notice upon the appellant. The appellant sent a reply. She sent a letter to the appellant for enhancing of the rent and the rent was mutually enhanced to Rs,
50. On 23-5-1982 the respondents served a notice under section 14 of the Ordinance upon the appellant calling upon him to hand over vacant and peaceful possession of the premises in dispute after the expiry of two months. The notice also mentioned that Muhammad Mumtaz retired from service with effect from 16-2-1980. This notice was served on the basis of transfer of name as per order dated 26-3-1982.
4. After this the respondents filed Rent Case No, 4470 of 1982 against the appellant. The appellant filed written statement and resisted the application.
5. ' The respondents in support of the application examined Muhammad Mumtaz respondent No,3, Azmatullah respondent No,2. They were cross-examined by the advocate of the appellant. In rebuttal the appellant examined himself and produced various documents in support of his defence.
6. ' The learned Rent Controller, on the basis of the evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issues 1 and 2 in the affirmative and allowed the application by his order dated 14-12-1983.
7. ' The appellant being aggrieved against the said order dated 14-12-1982 has preferred this appeal on the grounds mentioned in the memo. Of appeal.
8. ' During the pendency of the application the appellant moved an application under Order XLI rule 27, C.P.C. For bringing letter No, ETO/DE/PT/84-11, dated 25-2-1984.
9. ' Mr. A. Nasir Khan, the learned counsel for the appellant, has contended that the order of the learned Rent Controller is based on mis-reading of evidence, non-reading of evidence and non- application of mind on the true prospects of the case.
10. ' On the other hand Mr. Azhar All Siddiqui, the learned counsel for the respondents, has submitted that the order is based on proper appreciation of evidence and the order is in consonance with the evidence on record.
11. ' It is admitted position that the property in dispute was owned by Niamatullah, who died in the year, 1974 or 1975. According to Mohammad an Law, on the death of the owner, each of his heirs will become tenant-in-common. Each heir will be entitled to a specific share in the property. The PT-1 produced by the appellant shows that the property was transferred in the name of respondent No,1.
12. The appellant has filed a copy of the letter dated 25-2-1984 stating therein that the respondent No,1 moved an application dated 22-11-1975 for the change of ownership in her name. The said application was accompanied with the surrender deed duly signed by the other legal heirs that is respondents 2 to 4. A notice under Form PT-XIII dated 12-7-1975 was issued to the other legal heirs/respondents 2 to 4. In the absence of any objection from other legal heirs within the prescribed period of 14 days, the change of ownership in the name of Mst. Husna Begum was confirmed by the Assessing Authority vide order dated 31-12-1975.
13. ' It seems that from 31-12-1975, the respondents 2 to 4 have not taken any step to mutate their names in the record of rights. But the respondent No,1 served a legal notice dated 9-9-1981 through her counsel on the appellant. On the basis of this notice the rent of the premises in dispute was enhanced to Rs,
50. This notice dated 9-9-1981 was served when the respondent No,3 had already retired from service.
14. ' It seems that respondents Nos. 2, 3 and 4 had not taken any step from 31-12-1975 till moving an application for mutation of their names to the Revenue Commission. This was done for the first time in 1982.
15. ' It is also an admitted position that the name of respondent was duly entered in the Record of Rights by an order dated 20-3-1982 and after change of name in the Record-of-Rights, a new notice dated 23-5-1983 was served by the respondent upon the appellant. This notice was under section 14(1) of the said Ordinance.
16. In these circumstances it cannot be held that the premises in dispute is owned by all the respondents or only by respondent No,l. The learned Rent Controller has not taken into consideration the evidence on record. It is the duty of the Rent Controller to independently apply his mind to the evidence on record and then to have recorded a reasoned finding. In the present case he has not referred to any evidence on record.
17. ' In this context, therefore, it was the duty of Rent Controller to deal the evidence as to whether the respondents 2, 3 and 4 surrendered their rights in 1975, and if so, what is its effect? In case they had not surrendered their rights in favour of their mother, then as to why they approached for mutation of names in the year, 1982.
18. ' In this view of the matter, in my opinion, the learned counsel for the appellant is right in contending that the learned Rent Controller has failed to carry out his duty, therefore, the order is vitiated. Therefore, in my opinion, the order passed by the learned Rent Controller cannot be sustained as both the parties had not a fair opportunity to put forward their respective cases. In my opinion, this is a fit case where the matter should be sent back to the learned Rent Controller for fresh decision in accordance with law. Therefore, the order passed by the learned Rent Controller is set aside and the matter is sent back to the Rent Controller for deciding it afresh in accordance with law after affording reasonable opportunity to both the parties to produce documents and to adduce evidence in support of their respective cases. In the result, therefore, the appeal is allowed as indicated above. However, in the circumstances of the case, there will be no order as to costs.