' This appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979 challenging the order of ejectment, dated 17-7-1980 passed by the Rent Controller, Karachi allowing the Rent Case No, 1559/78 filed by deceased Mst. Shahjehan against the appellant on the ground of default. It may be observed that in the written statement filed before the Rent Controller by the appellant, relationship of landlady and tenant between the parties was denied and it was averred that the appellant was the owner of the premises in question. A preliminary issue about the relationship of landlady and tenant was framed and after recording evidence on that preliminary issue, by order, dated 26-7-1979, the Rent Controller came to the conclusion that such relationship existed. Thereafter, further evidence was recorded and by the impugned order, dated 17-7-1980, the ejectment application was allowed and appellant had been ordered to be ejected from the premises in question. During the pendency of the present appeal, respondent Mst. Shahjehan died and her legal heirs have been brought on record as respondents. I have heard Mr. Abdul Alim K.
Talib, learned counsel for the appellant and Mr. Khawaja Naveed Ahmad, learned counsel for the respondents.
2. The main argument advanced by Mr. Abdul Alim K. Talib, learned counsel for the appellant, is that on the evidence on record it had not been established that relationship of landlady and tenant existed between the parties. The two learned counsel who have appeared before me took me through the entire evidence on record. In support of the case of the deceased respondent that the appellant was her tenant, the landlady herself had given evidence. In her evidence, she produced some documents which include a tax bill of K.M.C. In respect of the premises in question, which according to Mst. Shahjehan, had been paid by her, copy of P.T.I. Of the Excise Department showing that her name is entered in the record of Excise Department as the owner, and the original notice, dated 1-11-1977 of the Advocate of Mst. Shahjehan addressed to the appellant. Admittedly this notice had not been served upon the appellant. According to the learned counsel for the respondent, apparently the appellant avoided to receive this notice. However, there is no such endorsement about refusal on the envelop (Exh. 6) or on the acknowledgment card (Exh. 5).
According to me, the documents produced by the deceased respondent Mst. Shahjehan do not prove the relationship of landlady and tenant between the parties. The notice, dated 1-11-1977 given on behalf of the Advocate for the deceased respondent is reproduced here:- "I have been instructed by my client Mst. Shah Jehan widow of Islamuddin of Asif Colony, Karachi to serve a notice as hereunder which I do hereby:-
(1) That the mother of my client Mst. Muhammadi Begum purchased the premises in your occupation from her father late Amir Bux.
(2) That you remained in the premises as tenant. Late Amir Bux was paying rent on your behalf.
(3) That Mst. Muhammadi Begum has gifted the said premises to my client and the mutation has taken place in records of rights.
(4) That you are a regular defaulter as the rent is not paid for a considerable time.
(5) That you are, therefore, asked to pay rent to my client and also vacate the permises within one month from the receipt of this notice as she does not want to keep you as tenant. In default, thereof, legal action will be taken against you and you shall be responsible as to cost and consequences."
' A perusal of the said notice shows that neither the quantum of rent is mentioned in the said notice nor the period for which the rent had been paid is specified. It is stated that in the notice that rent had not been paid for a considerable time. In the ejectment application, however, it is mentioned that the premises in question had been taken on rent by the appellant with effect from 1-1-1969 at a monthly rent of Rs,30 and that rent had not been paid to the deceased respondent Mst.
Shahjehan with effect from 11-8-1977. If, according to the case of the deceased respondent Mst.
Shahjehan, the appellant had been a tenant with effect from 1-1-1969, it is naturally to be presumed that there would be some documentary evidence which would at least indicate that the status of Mst. Shahjehan was that of a tenant of Mst. Rahiman. It is an admitted position however, that in spite of the alleged case of Mst. Shahjehan that appellant has been a tenant for nearly 10 years, when the evidence was recorded before the Rent Controller, there was a document in existence to show that relationship of the landlady and tenant existed between the parties. Admittedly there is no rent agreement executed between the parties or between Mst. Mehmoodi Begum, mother of Mst. Shahjehan, from whom she has stated to have acquired the premises in question. No rent receipt has been alleged to have been executed or given by Mst. Shahjehan to the appellant. There is no allegation that the rent had been paid through money order. In fact there is no allegation at all as to how and in what manner the rent had been paid by the appellant to Mst. Shahjehan. Then apart from Exh. 4, legal notice, dated 1-11-1977, no notice had been given by Mst. Shahjehan to the appellant claiming that the appellant was the tenant and she had not been paid rent. And this solitary notice, dated 1-11-1977 (Exh. 4) had not been served upon the appellant.
3. In the absence of any documentary evidence showing relationship of landlady and tenant between the parties, reliance was placed by Mr. Khawaja Naveed Ahmed, learned counsel for respondent, on the oral testimony of Mst. Shahjehan. In that context it may be observed that it is word against word and secondly even in her oral evidence, Mst. Shahjehan has not stated as to what was the agreed rent between the parties. She has just stated that the appellant "is my tenant".. As observed earlier, there is no rent agreement executed between the parties and no rent receipt has been issued. If relationship of landlady and tenant had been established between the parties, the preliminary term that is always agreed is quantum of rent. In her evidence, Mst. A Shahjehan has not stated as to what was the rent agreed. She has further stated in her cross- examination that I had not issued any receipt to the appellant nor she had paid any rent. On this state of the oral evidence on record of Mst. Shahjehan, it was not proper for the learned Rent Controller to place any reliance thereon. In fact a perusal of the order, dated 26-7-1979 of the Rent Controller holding that relationship of landlady and tenant existed between the parties, the learned Rent Controller after discussing the evidence, oral and documentary, decided that Mst. Shahjehan was the owner of the property but has not given any reason at all for his further finding that the appellant was the tenant of Mst. Shahjehan. In my view, on the evidence on record it had not been established that relationship of landlady and tenant existed between the parties.
4. As a result the order, dated 26-7-1979 is set aside and as a necessary consequence the order, dated 17-7-1980 of the Rent Controller is also set aside. First Rent Appeal No, 642 of 1980 is accordingly allowed but with no order as to costs.