' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, has arisen from an order of ejectment, dated 28-8-1982 passed by VIllth Senior Civil Judge Rent Controller, Karachi, in a Rent Case No, 1071 of 1969 filed under the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959 (since repealed).
2. The appellant Shamsudduha is doing business in a shop No, 65 in Khalid Cloth Market, Karachi, as a tenant. The respondent Liaqat Ali claims to be the landlord of the shop. He filed the Rent Case No, 1071 of 1969, on 21-5-1969, for ejectment of the appellant from the shop on the grounds of default in payment of rent, subletting and misuse. He has alleged that the appellant was his tenant in the shop and had not paid rent from the month of February, 1969, and had put other two persons there as sub-tenants, and put the shop to the use other than that it was let out to him.
3. The appellant resisted the ejectment case. He denied that the respondent was landlord of the shop. He contended that the shop was let out to him by one Allah Ditta in the year 1957, on behalf of his brother Muhammad Zaman who was residing in London, and he used to collect the rent. He further stated that Allah Ditta and Muhammad Zaman contacted him in May, 1966 and made fresh agreement of tenancy with him at enhanced rent at Rs, 35 per month as against the rent of Rs, 25 and Muhammad Zaman entered into a written agreement on 16-5-1966, and authorised Allah Ditta to collect rent on his behalf as he had to go back to London. According to him, Allah Ditta used to collect the rent, as such, and he stopped collecting it from February, 1969, and he then deposited the rent in the office of the Controller by filing Miscellaneous Rent Application No, 86 of 1969 (Shamsudduha v. Allah Ditta). He denied the allegations of subletting and misuse of the premises.
4. Since the relationship of tenant and landlord was in dispute, the learned Controller, by his order, dated 17-11-1969, held by way of summary enquiry, that there was relationship of landlord and tenant between the parties. Thereafter, parties adduced for determination of three issues on default in payment of rent, subletting premises without permission and use of the premises for the purpose other than that it was let out for. The learned Controller, by his order, dated 29th September 1977, held that the appellant had made default in payment of rent and has also sublet the premises and passed order for vacating the shop. This order was appealed against before the District Judge, Karachi, in Rent Appeal No, 426 of 1977, which was heared by the IVth Additional District Judge who by his judgment, dated 2nd January, 1983, allowed it and remanded the case for the determination of the question of relationship of tenant and landlord afresh after affording opportunity to the parties to adduce evidence. On remand of the case, the respondent led evidence while the appellant placed reliance on the evidence produced earlier. Fresh decision also was to the same effect that there was relationship of landlord and tenant between the parties and the tenant/appellant had made default in payment of rent and had also sublet the premises and the impugned order of ejectment was passed on 28th of August, 1982.
5.The crucial issue for determination is that of relationship of tenant and landlord between the parties. It is, of course, not disputed that the appellant is in occupation of the shop as a tenant. The dispute is as to who is the landlord. The respondent claims to be the landlord. His assertion rests mainly on oral evidence and few rent receipts. There is no mention in the ejectment application as to when alleged relationship of tenant and landlord respectively between the appellant and the respondent was established. The respondent disclosed in affidavit in evidence filed in February, 1982 that he had let out the shop to the appellant in May, 1966, by way of oral agreement. Three witnesses examined by the respondent in support of his claim that he was landlord of the premises supported his version to the extent that he was the appellant landlord of the premises. On the other hand, the appellant denied in the very beginning that the respondent was his landlord. His plea was that the shop was let out to him by the respondent's uncle Allah Ditta in the year 1957 and that fresh rent agreement was executed in his favour by the respondent's father Muhammad Zeman on 16th May, 1966. According to him, Allah Ditta continued collecting rent of the premises from him. He produced a rent deed marked as Exh. D-1, which was attested by a Notary Public. The appellant was supported by a witness Tajal Malook. It would thus appear that the respondent's claim that he is the landlord of the premises rests on oral evidence. Learned counsel appearing on his behalf did urge that the rent receipts had been issued by the respondent and the appellant had confirmed that fact before the Controller and it was on the basis of his admission that the first order regarding relationship of tenant and landlord was made. The learned counsel for the respondent made reference to certain receipts lying on the record but were not put in evidence. The rent receipts said to have been admitted before the Controller are alleged to have been misplaced somewhere. The rent receipts which were not put in evidence do not deserve consideration. On the other hand, the execution of the rent agreement relied upon by the appellant has been challenged by the respondent. It is said to have been executed by the father of the respondent who has migrated to the United Kingdom. The appellant has examined one attesting witness but not the Notary Public to prove its execution. In any case, it is admitted fact that the shop belongs to the father of the respondent. It is also admitted that the respondent's father had visited Karachi in the year 1966. Of course the contention of the respondent is that his father had visited Pakistan in the month of July, 1966 whereas the alleged tenancy deed is shown to have been executed in May, 1966. The appellant produced in evidence few rent receipts said to have been issued by the respondent's uncle Allah Ditta. Allah Ditta is said to be alive but he was not examined by either party.It is thus obvious that there is no definite evidence on either side as to who had let out the shop to the appellant and who was the landlord. There is on the record an application under section 20 of the Sind Rented Premises Ordinance made by the respondent herein for summoning Allah Ditta and three other persons as the witensses. This application was rejected by the Controller. Allah Ditta's name appears prominent in the proceedings. His evidence is very materia! For determination of the issues, particularly that of relationship of the tenant and the landlord. For this reason, the case needs to be remanded for recording evidence of Allah Ditta in the interest of justice.
2. Consequently, the appeal is allowed and the order of ejectment, dated 28-8-1982 passed by the learned Controller is set aside and the case is remanded for the recording of evidence of Allah Ditta and giving decision afresh. Both the parties shall have right of cross- examining Allah Ditta and producing through him any document relevant to and admissible in the proceeding including the announcement of decision shall be completed within three months.