' This appeal calls into question the order of IX Senior Civil Judge and Rent Controller, Karachi, dated 31-10-1982 whereby the appellant has been ordered to hand over the possession of the disputed premises to the respondent on the ground of personal requirement and default in payment of rent.
2. On 26-5-1980 the respondent filed application for ejectment claiming that the appellant was her tenant at Rs,300 per month and the premises had been let out to him through Mr. Jamshed Ali Zuberi and Rs,900 were paid on 20-9-1976 as three months advance rent and that thereafter on failure to pay Rent Suit No, 115 of 1978 for 14 months arrears were filed against the opponent which was decreed on 22-7-1978 and another Suit. No, 565 of 1979 was filed for recovery of Rs,5,000 as arrears and then again there was further default. The premises were stated to be required by the respondent as she had no other residence of her own and she required the same for herself and her children. It was further stated that the premises had been damaged. The appellant filed his written statement where he denied relationship of landlord and tenant between him and the respondent. He also took up the position that Mr. Jamshed Ali Zuberi had taken Rs,10,000 as part payment of sale price of the said flat from intending lady purchaser. In respect of the suit it was stated that it had been ex parte decreed and the application for setting aside the ex parte judgment was dismissed as the appellant could not comply with the requestion. It was stated that the appellant had not remained in use and occupation of the premises. Personal use requirement was denied. It was stated that the intending purchaser had been put in physical possession of the said premises on acceptance of Rs,10,000 out of total sale consideration of Rs,40,000. This written statement was filed on 23-12-1980 and it is surprising that the name of the intending lady purchaser was not even mentioned in this written statement.
3. The Rent Controller framed the following issues:- "(1) Whether there exists the relationship of landlady and tenant between the parties?
(2) Whether the opponent has committed default as alleged?
(3) Whether the opponent has sublet a portion of the demise premises?
(4) Whether the applicant requires the premises in good faith and bona fidely for her personal use and occupation and for the use and occupation of her children?
(5) What should the order be?"
' The respondent MRs, Basheeri Hazoor Soofi and Jamshed Ali Zuberi filed their affidavits in respect of the application and they reiterated the contents of the application. The filing of Suits Nos. 115 of 1978 and 565 of 1979 and of D.W. Proceedings in July 1980 was clearly stated. It was also alleged that Martial Law Authorities had dealt with the matter. MRs, Basheeri Hazoor Soofi was cross- examined at length and I have perused her cross-examination with the assistance of Mr. Manohar Lal but I do not find much relevant cross-examination except that respondent admitted that Jamshed Ali Zuberi had informed her that he had rented out the premises to the appellant and that the appellant had told the respondent that he was to vacate the premises in a short time so it was not necessary to execute the tenancy agreement. Relationship between Jamshed Ali Zuberi and respondent was admitted to be of about 20 yeaRs, It was asserted that appellant had sublet one room to some lady but the respondent had not protested in writing. It was asserted in cross- examination that the opponent had admitted before Martial Law Authorities that he would vacate the premises. The respondent had also stated that he had visited the appellant several times and on one occasion the wife of the appellant was sick and she had been called inside the house. The respondent further stated that she had three children all whom were being educated at Islamabad while she was residing in Karachi with her niece in a rented house. Then again it was stated that the respondent was residing with her friends in Karachi. The respondent denied that appellant Qadeer- uz-Zaman was not residing in the disputed premises but asserted that he was residing there with his second wife Mst. Munawar Sultana. She denied that she did not require the premises for personal use and she denied that no default had been committed by the opponent. She denied that she had sold out the premises to Mst. Munawar Sultana through Jamshed Ali Zuberi for Rs,40,000 and that she had received Rs,10,000.
' I may note here that the default in rent had been stated to be from 19-8-1979 to the date of filing of application which was 25-5-1980. Mr. Jamshed Ali Zuberi had stated that he had handed over the keys of the flat to the appellant on 20-9-1976 and collected three months advance rent at Rs,300 from the appellant and that appellant had promised to execute the agreement of tenancy later on. In cross-examination he stated that he had given the keys of the premises to the appellant and that husband of the respondent had given him the keys of the premises. He denied that he had given the keys to Mst. Munawar Sultana. He stated that the respondent and her deceased husband were present at the time of settlement of tenancy and Qadeeruz Zaman was present when he reached there. He admitted that he was related to the respondent. He stated that he never maintained the rent account. He admitted that no rent agreement was executed between the parties. He denied that Mst. Munawar Sultana is residing in the premises as bona fide purchaser of the property in dispute. He denied that any damage had been caused to the premises. He denied that he had sold the premises on behalf of respondent to Mst. Munawar Sultana for Rs,40,000 and that he received Rs,10,000 and that he had handed over the keys to Mst.
Munawar Sultana as purchaser or that he had concealed the fact from the respondent. He denied that he had promised to Mst. Munawar Sultana to execute agreement of sale. He asserted that respondent was residing in the house of his sister at Jail Road, Karachi. He asserted that the terms of the agreement were settled by the parties themselves.
4. Qadeeruz Zaman, appellant filed her affidavit and denied relationship of landlord and tenant and stated that Mst. Munawar Sultana had purchased the premises for Rs,40,000 and had paid Rs,10,000 in advance through Jamshed Ali Zuberi and he was present at that time, and that no receipt have been taken from Jamshed An Zuberi. And that false D.W. Applications have been filed and that ex parte decree against him had been obtained as the cases were not contested by him.
And that his application for setting aside the ex parte decree was dismissed because he could not comply with the requisition of the Court and therefore, he was helpless. It was stated that Mst.
Munawar Sultana is living in the premises and that he had never occupied the premises and he was not the tenant. It was also stated that the respondent has, about 5-6 flats in the same Al- Azam Square. He asserted that Jamshed Ali Zuberi who was related to respondent had become hostile to him and Mat. Munawar Sultana. In cross-examination he admitted that no documents of title were obtained from Jamshed All Zuberi at the time of purchase. He admitted that he had given an undertaking before Martial Law Authorities on 18/12 to vacate the premises but it was under coercion. He admitted that two civil suits had been filed against him by the respondent in the Small Causes Court. He admitted that he had deposited rent in D.W. Proceedings under protest. He also admitted that the respondent had filed second suit against him in Small Causes Court. He denied that he got the premises in dispute on rent and that he paid three months advance rent. He denied that no amount was paid to Jamshed All Zuberi. He was shown the objections filed by him in Suit No, 565 of 1979 in the Court of Small Causes dated 9-5-1981 which bore his signature, Exh.5/B. He also saw photo of the certified copy of the Court's order, dated 16-5-1981 in Suit No, 565 of 1979 and stated that his objections were not dismissed under that order but that he had deposited the amount under protest. Mst. Munawar Sultana supported the case of the appellant and stated that she had agreed to purchase the flat in question from Jamshed Ali Zuberi for Rs,40,000 and she had paid Rs,10,000 to Jamshed Ali Zuberi and that she was living in the premises in her independent right as bona fide purchaser of the flat and that also she informed the tenant of the same who was residing in his own residential house near Sindhi Hotel, Liaquatabad. In cross-examination she admitted that she had not obtained any document pertaining to the disputed premises from Jamshed All Zuberi. She admitted that she had filed objections in D.W.Proceedings 195/81 and that the affidavits bore her signatures but she did not remember whether her objections were ruled out or not. She admitted that she did not file any appeal or revision. She admitted that she had no direct negotiations with Jamshed Ali Zuberi but negotiations were through her husband Qadeeruz Zaman and as such she did not issue any notice to Jamshed All Zuberi for return of Rs,10,000.Or for specific performance of contract nor she filed the suit against him for that purpose.
5. The learned Rent Controller after appraisal of the evidence led by the parties held that the appellant had set up a false plea of denial of relationship of landlord and tenant to avoid his eviction from the premises and that there was relationship of landlady and tenant between the parties. She took into consideration the suits and the D.W. Proceedings that had been filed by the respondent against the appellant and the same were decreed and allowed and, therefore, she had arrived at that finding.
' In respect of issue of default she held that it was an admitted position that rent had not been paid and, therefore, the issue was answered in the affirmative. The issue of subletting was disposed off as not pressed. In respect of personal requirement the Rent Controller held that the respondent had returned to Karachi after the death of her husband and she had no other accommodation to live in and, therefore, her requirement was proved.
6. Learned counsel for the appellant, Mr. Manohar Lal, has strongly urged that the order in question should be set aside as it was incumbent upon the Rent Controller to determine the relationship of landlord and tenant first before proceeding further in the matter. The learned counsel submitted that the Rent Controller had no jurisdiction to determine all the issues together as it was incumbent upon the Rent Controller to first determine the preliminary issue of landlord and tenant before proceeding in the case at all. The learned counsel relied upon the admission order in C.P.S.L.A. No, K-268 of 1982, dated 7-11-1982 where the petition was admitted on the ground where, on the pleadings of the parties, Rent Controller was required to decide the preliminary issue whether relationship of landlord and tenant existed between the parties. He also relied upon judgment of Supreme Court in C.A. No, K-96 of 1982, dated 22-2-1983 where the appeal was allowed on the ground that the objection in respect of jurisdiction had to be determined for the very purpose of exercise of jurisdiction and that the same should have been decided first before passing of order of ejectment. What has happened, however, in that case was that in spite of denial of relationship of landlord and tenant between the parties the Rent Controller had dismissed the application for adjournment made by the tenant and adjourned the matter for ex parte proof and ordered ejectment.
7. However, the case before me has proceeded on the basis of the allegations between the parties.
It is correct that the Rent Controller has decided all the four issues together but he has decided the issue of the relationship of the landlord and tenant first before deciding any other issue and on the basis of that decision he has come to the conclusion that since the relationship was established and the nonpayment of rent was also admitted, therefore, the default had been proved. I do not really understand as to why the Rent Controller could not decide the ejectment application in the manner that he has done. He has given precedence and first consideration to the issue of relationship of landlord and tenant and after determining the said issue of landlord and tenant he has proceeded to determine the other issues. He does not appear to have violated the spirit of the decision of the Supreme Court.
8. If it had been a case where the Rent Controller might have ordered the payment of tentative rent without determining the issue of landlord and tenant then the objection of the appellant might have been of great substance but it is not the case of that nature because no tentative rent order of deposit of rent was passed by the Rent Controller. In fact, the issue of the relationship has been the main issue upon which the parties have led their evidence and the document have been filed in that respect and the witnesses have been examined and cross-examined at length. No prejudice of any sort has been caused to the appellant by the procedure adopted by the Rent Controller in framing of the issues and deciding the same together and hence the objection raised by the learned counsel is merely of a technical nature without any substance.
9. The learned counsel has not been able to show me any reason as to why the finding in respect of the existence of relationship of landlord and tenant should not have been upheld. In Suit No, 115 of 1978 I find the order, dated 4-9-1979 photo stat of which is on the record of this case. That suit was between MRs, Basheeri Hazoor Soofil v. Qadeeruz Zaman and the order, dated 4-9-1979 shows as under:- "Defendant and his Advocate were called absent for last three or four hearings. The defendant was served in the original suit and the Advocate also filed power and they remained absent and suit was decreed ex parte on 22-7-1978. The present application has been moved on 22-7-1978, but the surety was furnished after 30 days. .In view of the case-law laid down in PLD 1958 Kar. 141, this application is time-barred as admittedly the surety was not furnished at the presentation of the application nor within 30 days of the date of decree. Accordingly this application has no merits and stands dismissed."
This order clearly shows that not only the appellant had been serve in Suit No, 115 of 1978 originally and he remained absent and allowed an ex parte decree to be passed against him but he did not eve furnish a surety in time with the result that his application was dismissed. The appellant has filed to get the said judgment and decree set aside against him and even allowed another judgment and decree in C Suit No, 565 of 1979 passed against him. The judgments in those suits which were filed for realization of arrears of rent from the appellant are res judicata and the appellant is bound by the said decree and, therefore, he cannot be allowed to say that he is not the tenant of the respondent.
10. In any case, no receipt was shown to have been executed by, Jamshed Ali Zuberi for Rs,10,000 which was alleged to be paid by Mst. Munawar Sultana to Jamshed Ali Zuberi nor there was any agreement shown in that respect. Further, surprising fact is that Mst. Munawa Sultana and the appellant are both bankers and yet they have not even produced any proof in respect of the payment which they had alleged to have given to said Jamshed Ali Zuberi. In any case, Jamshed All Zuberi was not the owner of the premises in dispute and he could not sell the premises to either the appellant or his wife Mst. Munawar Sultana and, therefore, the appellant or his wife have failed to establish so far that there was any agreement of sale in respect of the disputed premises in favour of either. These findings are however of a tentative nature and not binding in a Civil Suit, if the same was filed at all.
' Strangely enough Mst. Munawar Sultana never filed any suit for specific performance of the contract, which she alleged in her favour, in spite of the fact that her right had been squarely denied by the, respondent as well as Jamshed Ali Zuberi.
11. Mr. Manohar Lal did not address me on the point of persona need of the respondent and probably rightly so because the respondent has come back from Islamabad after the death of her husband and I living in Karachi with some friend and, therefore, her need for premise of her own is obviously bona fide. Consequently this appeal is dismissed, however, I would allow four months' time to the appellant to vacate the premises subject to his depositing Rs,300 per month in this Court for 10th of this month. In case the appellant fails to deposit the rent, o on the expiry of the said period of four months from today direct writ of attachment will be issued against the appellant without notice.