1. ' This first rent appeal is directed against the impugned order, dated 30-1-1984 passed by XIIIth Senior Civil Judge/Rent Controller, Karachi, whereby it is held that appellant/intervenor is not entitled to any relief.
2. ' Briefly stated the relevant facts giving rise to this Appeal are that the respondent before me namely A. Rehman (who will be referred hereinafter as Landlord) filed application for ejectment against Nizamuddin (who will be referred hereinafter as Tenant) on the ground of default. Tenant was served with notice but did not appear hence case proceeded against him ex parte and consequently ejectment was granted, vide order, dated 18-3-1977. Subsequently during the pendency of execution proceedings appellant before me namely Islamuddin (hereinafter to be referred as Intervenor) appeared and filed. Application to be joined as necessary party on the ground that he was tenant and in physical possession of the premises in question. This application was allowed vide order dated 29-10 1978 hence Intervenor was allowed to join execution proceedings on the ground that he produced some documents including Electric bills which showed prima facie that he was in possession.
3. ' After that evidence was produced by both parties which was recorded. Intervenor examined himself and three other witnesses. On the other hand landlord examined himself and three other witnesses.
4. ' During the execution proceedings Intervenor filed an application praying that he being allowed to join the proceedings as Opponent and in support of application affidavit was filed by him in which he narrated the facts and took up the plea that he was a tenant of the landlord in respect of shop in question and further denied the fact that Nizamuddin was tenant. It was further stated that the Intervenor was depositing rent regularly in favour of landlord after obtaining permission of the Rent Controller. It was also alleged that before depositing of rent in the Court of Rent Controller Intervenor used to send the rent to the landlord by Money Orders which were refused by the landlord hence rent was deposited in the Court. It was further stated that Nizamuddin was not tenant hence order of ejectment has been obtained by the landlord fraudulently as such it was liable to be set aside. Against this affidavit, counter-affidavit has been filed by the landlord in which allegations made by the Intervenor were denied and it was stated that Nizamuddin was tenant of the landlord and further assertion was made that Intervenor might be in possession of the premises in question as a sublettee without permission and consent of landlord. Rejoinder was filed by the Intervenor. In the evidence all the witnesses filed their affidavits and they were subjected to cross-examination.
5. ' The same facts were reiterated by the Intervenor in his affidavit df evidence and in the cross- examination he admitted that Nazimuddin was his brother and further that he has no rent receipt to produce in proof of the fact that he is tenant. It was denied by the Intervenor that Nizamuddin was ever in possession of the premises in question. He admitted that there was no tenancy agreement between landlord and him. He denied suggestion that he got the shop in question from his brother Nizamuddin. Witness Abdul Shakoor stated in his affidavit that Intervenor was inducted into possession by Abdul Rehman in the premises in question about 13 or 14 years ago. In cross this witness stated that he did not see Nizamuddin in possession of the shop in dispute. Second witness Sarfraz Ali stated that Islamuddin was tenant and used to pay rent but landlord never issued receipt to him. Further in presence of this witness landlord refused to issue receipt to Islamuddin. In cross-examination the witness denied a suggestion that his son was in the service of Islamuddin.
6. The third witness Syed Ali Zamin did not appear in the Court for cross-examination. On the other hand the case of the landlord as stated in his affidavit of evidence is that he gave three shops on rent with one small room for Office purposes to his tenant Nizamudclin vide agreement, dated 15- 3-1975. Machinery and equipment installed in the rented premises belonged to the landlord. It was further stated that Intervenor was not tenant but was brother of the tenant and was working with him. It is stated by the landlord in paragraph 14 of his affidavit that according to the agreement it was tenant who was supposed to pay the Electric bills and since the tenant and Intervenor were brothers, Electric Bills were passed on to the Intervenor which did not show that Intervenor was a tenant. In the cross-examination landlord stated that he asked tenant Nizamuddin as to why he had sublet the premises to which Nizarnuddin stated that Islamuddin was his brother hence he could not ask Islamuddin to vacate the premises for the landlord. Further, Nizamuddin refused to give evidence in the case in spite of the fact that landlord got summons issued from the Court for his appearance. Witnesses Fayaz Ali, Muhammad Rashid and Sher Ali supported the landlord on the point that Nizamuddin was tenant and not Islamuddin. Muhammad Rashid was ex-tenant of the same premises before they were let-out to Nizamuddin. Some mistake was made by witness Muhammad Rashid for which he was again recalled and re-examined and the mistake was corrected. Sher Ali claimed that he was marginal witness of agreement which was executed between landlord and tenant Nizamuddin. He further positively asserted that Nizamuddin was not tenant of the landlord.
7. No doubt, Intervenor has produced some bills, receipts and envelopes showing his address at the premises in dispute and also a large number of Electric bills which are in the name of the landlord.
8. At the best these ocu ments may show physical possession of disputed premises with Inrerved no but Intervenor has failed to produce any evidence to show that he is tenant o the premises. He could not produce any rent receipt. Landlord has stated in his evidence that Intervenor attempted to pay him rent through Money Orders which he refused. Deposit of rent by Intervenor in the Court also does not prove that he is tenant. It is provided in the agreement execute between landlord and tenant that Electric bills would be paid by the tenant. Intervenor and tenant are brothers and they were jointly doing the business in the rented premises. Even if Intervenor has produced the Ele:tric bills, it does not prove that he is tenant of the landlord as is claimed by him. On the other hand, landlord has produced agreement executed by him and the tenant and further tenant did not appear before the Rent Controller and wa declared ex parte and even in the execution proceedings tenant did no appear. From this inference can be drawn in favour of the landlord that his claim is correct. Intervenor could have produced his brother Nizamuddin to depose in his favour that he was not tenant but Islamuddin was tenant. Islamuddin has failed to produce his brother Nizamuddin as witness.
9. ' Even otherwise the legal position is very clear that under section 22 of the Sind Rented Premises Ordinance, 1979 for execution proceedings, C.P.C. Is not to be applied but it is left to the discretion of the Controller or the appellate authority to execute their orders in such manner as may be determined by them. In the previous rent law namely west Pakistan Urban Rent Restriction Ordinance, 1959, there w s a provision that order of ejectment was to be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Such provision does not exist in the present rent law hence section 47 of C. P. C. Or Order XXI, C. P. C. Cannot now be applied to execution proceedings emanating from order of ejectment passed under the provisions of Sind Rented Premises Ordinance, 1979. Present rent law prohibits Rent Controller from recalling an order passed ex parte by him. Scope of execution proceedings under the new rent law is very much limited and the Rent Controller cannot entertain objections filed by Intervenor who claims tenancy right in his favour as the same would be a question foreign to the rent proceedings. For the above proposition reliance is placed on the decision of Division Bench of this High Court in case of Haji Ahmed Haji Essa v. The Rent Controller and 2 others (1).
10. ' For the facts and reasons stated above, I hold that line of reasoning adopted in the impugned order is unexceptionable. In the result impugne order is hereby upheld and the appeal filed against it is dismissed as without merits. However, there will be no order as to costs. ,11
(1) 1983 CLC 840