' This is a First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 against the Order, dated 16-2-1985 passed by the learned XIVth Senior Civil Judge and Contkoller, Karachi, whereby the application for execution in respect of premises comprising of two rooms with kitchen and latrine forming part of house bearing No. 1056/16 F.B. Area, Karachi has been allowed.
2. The brief facts of the case are that an execution application No. 22 of 1984 was filed by Respondent No. 1 for execution of the decree passed in his favour, in R.C. No. 386 of 1979 against respondent No. 2 (Waliur Rehman son of Zaman, the original tenant), whereby he was directed to vacate the premises in question and hand over its vacant and peaceful possession within 30 days of the decree.
3. Notice of the said application was served on the judgment-debtor (Waliur Rahman son of Zaman) by affixation on the outer door of the premises but he did not come forward to contest in the said execution application.
4. However, written objections were filed by the appellant as intervenor stating that on 30-1-1985 respondent No. 1 has rented out the said premises to him at a monthly rent of Rs.1,000 and that respondent No.1 has received the rent for the months of February, March and April, in advance amounting to Rs.3,000 and that respondent No. 1 has also received Rs.20,000 from him as a deposit.
He, therefore, prayed for dismissal of the execution application. These objections were dismissed by the learned Rent Controller by his order, dated 16-2-1985 impugned in this appeal.
5. It will not, however, be out of context to mention here that the appellant has also filed a Civil Suit No. 659/85 in the Court of XI Senior Civil Judge, Karachi for declaration that he is a tenant of respondent No. 1 and for a permanent injunction restraining the respondent No. 1 to eject the appellant. Alongwith the plaint the appellant did also file an application under Order XXXIX, rule 1, C.P.C. for interim injunction which has been dismissed by the learned Senior Civil Judge by his order, dated 3-3-1985. A certified copy of the said order has been placed on record in this appeal.
On perusal of the order passed by the learned Civil Judge it appears that the learned Judge having considered the statement of respondent No. 1 that he never let out the premises to the appellant and that the tenancy agreement was a forged document, came to the conclusion that the appellant had failed to produce any documentary evidence in support of his case inasmuch as that he failed to establish any legal right or title over the property in dispute and as such the application for injunction was dismissed.
6. It is also pertinent to note that in an ejectment Case No. 720 of 1978 brought by the respondent/landlord on grounds of default in payment of rent from August, 1977 to January, 1978 and of sub-letting by one Ali Mardan (the tenant) the appellant herein in respect of a hotel situate in another portion of the said premises, the learned Rent Controller ordered by his judgment, dated 15-5-1983 the ejectment on both the grounds, against All Mardan as well as the appellant as an unauthorised occupant. First Rent Appeal No. 488 of 1983 against the said judgment was filed by the said Ali Mardan and the above appellant in this Court which was dismissed on 5-8-1984. As against this judgment, a Civil Petition No. 474/K/84 was filed in Supreme Court which was also dismissed on 24-1-1985.
7. The only contention raised before me by Mr. Shah learned counsel for the appellant is that the appellant being a tenant of respondent No. 1 and in legal possession cannot be ejected from the premises in question in the execution proceedings.
8. Admittedly the judgment-debtor (Waliur Rehman son of Zaman) has not handed over possession of the case premises to respondent No.1. The appellant has only produced a photostat copy of an alleged agreement in execution proceedings which was held by the learned Rent Controller as neither genuine nor authentic. Moreover, I find that the date mentioned at the end of the alleged agreement as 30th day of January 1985 seems to have been typed in the photostat copy itself. I, therefore, asked Mr. Shah to produce the original tenancy agreement which he failed to do as, according to him, it was allegedly with respondent No. 1 but respondent No. 1 has denied the very existence of the said agreement. Mr. Shah also failed to produce the receipts of the alleged payments made by the appellant to respondent No. 1 for the rent and the deposit which he claims to have paid to respondent No.
1. I also noted certain other discrepancies in the agreement and the statements made before the learned Rent Controller and the learned Senior Civil Judge. I am, therefore, not inclined to agree with the learned counsel for the appellant that there is any agreement of tenancy executed by and between the appellant and respondent No. 1, as alleged.
9. Learned counsel, however, in support of his contention relied on a decision of the Hon'ble Supreme Court reported as Mst. Fatima v. Abdul Hamid and others PLD 1983 SC 157. Admittedly the appellant was stranger to the proceedings before the learned Rent Controller which culminated into an ejectment order, in respect of which the execution proceedings were pending.
10. In my view, therefore, the learned Rent Controller while exercising his jurisdiction under the Sind Rented Premises Ordinance, 1979 was competent to dismiss the application. Even otherwise the basis of the Objection has rightly been disbelieved by the learned Rent Controller. The Judgment of the Honourable Supreme Court relied upon by the learned counsel for the appellant is not applicable to the facts of the present case, as in that case the tenancy had been admitted by the landlord inasmuch as the new tenant (Second respondent, in that case) had been inducted in the premises by the landlord himself on the basis of the new tenancy.
11. I, therefore, find no substance in this appeal and the same is dismissed in limine. Consequently the C.M.As. Nos. 411/1985 and 412/1985 are also dismissed.