1. ' This First Rent Appeal is directed against the order, dated 13-2-1984 passed by XIIth Senior Civil Judge and Rent Controller, Karachi whereby she allowed the eviction application filed by the respondent and directed the appellant to hand over the vacant possession of the premises in case to the respondent within 60 days from the order.
2. ' The facts leading to the filing of the above appeal are that the respondent filed Eviction Application No,689 of 1981 and stated therein that the respondent is the transferee/owner of the entire building constructed on Plots Nos.O.T. 9/102, 103 and 104 situated at Kaghzi Bazar, Karachi vide P.T.O. No,08338, dated 13-12-1960 issued in favour of the respondent by the Deputy Settlement Commissioner, Karachi. It was averred in the application that after the transfer of the said building in favour of the respondent, the father of appellant No,1 who was alongwith his family including the present applicants has been in occupation of the premises No,1/1 and 1/2 of the said building and he was served with a notice, dated 28-6-1967 under section 30 Displaced Persons Act through the counsel of the respondent. It was further averred that the father of appellant No,1 however failed to pay the rent to the respondent and evaded payment of rent on one pretext or the other and he died on 19-1-1981 leaving behind the appellants and deceased Abdul Ghaffar as his sons. The appellants were in arrears of rent with effect from 13-12-1960 onward at Rs,50 per month. The appellants filed the written statement and stated therein that there existed no relationship of tenant and landlord between the parties. It was further averred therein that the appellants and other family of the appellants are living in the demised premises since 1947 and one Habib Ahmad is the owner/landlord of the said property. The appellants paid rent to the said Habib Ahmad and to his adopted son.
3. ' The respondent filed his own affidavit-in-evidence. The appellant No,1 filed his own affidavit-in- evidence. They were cross-examined by the respective counsel of the parties.
4. ' The learned Rent Controller, after taking into consideration the evidence adduced by the parties and the arguments advanced by the learned counsel for the parties, allowed the eviction application on the ground of default.
5. ' The appellants being aggrieved against the order, dated 13th February, 1984 of the XIIth Senior Civil Judge and Rent Controller, Karachi, has preferred this appeal on the grounds mentioned in the memo. Of appeal.
6. ' Mr. Hussain Adil Khatri, learned counsel for the appellants has contended that there existed no relationship of landlord and tenant between the parties. The appellants paid rent to Habib Ahmad and his adopted son and the appellants are not the defaulters. On the other hand Mr. Abdul Majeed Khan learned counsel for the respondent has submitted that the respondent is landlord and owner of the property in this case.. His submission is that the appellants had committed default in payment of rent.
7. ' The contention of the learned counsel before me is that the learned Controller has made a wholly erroneous approach to the case by picking up weakness in the appellant's evidence and interpreting certain circumstances against him, ignoring that initially the onus was on the respondent to establish that there existed relationship of landlord and tenant. Admittedly the notice was served on 28-6-1967 on the father of the appellants and the respondent did not file any eviction proceedings against the father of the appellants. It was not denied that the appellants are in possession of the premises in dispute with their father since 1947. It appears to me rather incredible that the father of the appellants, who was admittedly paying rent to Habib Ahmad, without any default, suddenly allowed himself to go into arrears till his death, thus inviting an application for ejectment against himself or his children from their landlord. I feel that on the evidence on record and the entire circumstances of this case it is not possible to give a conclusive finding safely, one way or the other, whether the respondent is in fact owner of the premises in dispute as alleged by the respondent or Habib Ahmad, as alleged by the appellants. In this situation the learned counsel for the appellants has submitted that the appellants have already filed an application under section 21(3) of the Sind Rented Premises Ordinance, 1979 alongwith photostat copies of certain documents. It is an admitted position that some of the documents annexed to the application were not brought on record. The contention of the learned counsel for the appellants is that if an opportunity is given to the appellants to prove the documents annexed to the application, they will establish that the respondent is not the owner of the premises but one Habib Ahmad was the owner of the premises. It seems that the documents mentioned in the application were not brought on record as they were not available with the appellants when the evidence was recorded in the trial Court. Mr. Abdul Majeed Khan has fairly conceded that this case be remanded to the Rent Controller and a fair opportunity be given to both the parties to lead additional evidence if they so desire. In the interest of justice I feel inclined to remand the case to the IIIrd Senior Civil Judge/Rent Controller, Karachi South for disposal of this case in accordance with law. The parties are at liberty in file additional evidence in support of their respective contentions if they so desire. F.R.A. No,268 of 1984 is allowed and the Rent Case No,689 of 1981 is remanded to the IIIrd Senior Civil Judge/Rent Controller, Karachi South for disposal in accordance with law.
8. ' I direct that the Rent Case be disposed of within four months from the date of receipt of R & P from this Court.