Appellants Abdul Fattah and Abdul Ghafoor have called in question an order dated 28-11-1984 passed by the Rent Controller, Moro in Rent Application No.19 of 1984.
2. Admittedly the shop in litigation bearing No.6 of A1-Mehran Manzil, Bhandhi Road, Moro is owned by respondent Ghulam Hussain and is occupied by the appellants. Appellant No.l filed Suit No.9 of 1979 against the respondent for issue of injunction restraining the latter from interfering with possession of the former over said shop. In said suit which was decreed on 20-2-1980, the appellant No.l claimed being in possession of said shop as tenant of the respondent on monthly rent of Rs.200. The appellant No.l filed an application under section 11 of the Sind Rented Premises Ordinance against the respondent alleging therein that the latter had cut off electric connection to the said shop because the former declined to pay rent at enhanced rate of Rs.450 p.m. There was prayer for reconnection of electricity. After recording of evidence said application was dismissed under an order dated 17-8-1981. The appeal (F.R.A. No.457 of 1981) against said order was decided in favour of the appellant No.l. Respondent filed criminal complaint against the appellant No.l alleging that he and the appellant No.2 had taken possession of the shop in litigation unauthorisedly and illegally after breaking open its lock. The A.C.M., Moro took cognizance and after recording some evidence acquitted the accuse under section 249-A of Cr.P.C. Under an order dated 13-1-1981, which was maintained in Criminal Acquittal Appeal No.184 of 1981 by a Division Bench of this Court.
3. Rent Application No.19 of 1984 was moved by the respondent for eviction of the appellants fromthe shop in litigation on the grounds of personal bona fide use, default in payment of rent since November 1978 and commission of acts likely to impair value of the shop. Respondent alleged that the shop in litigation was occupied by the appellants after breaking open its lock unauthorisedly. Instead of claiming to be landlord of the appellants, the respondent took stand that the appellants were contending to be his tenants in the shop. He also referred to judgment of Suit No.9 of 1979 in which the Civil Judge, Moro held that the appellant No.l was not a tenant in the Shop No.4 but he had occupied said shop by purchasing the same from his employer Saleem lqbal, who had sublet the same to him.
4. In their objections, the appellants denied having occupied the shop in litigation by force without the permission, consent and authority of the respondent, or by breaking open its lock. Appellant No.l claimed being in the shop since 22-4-1975 as tenant of the respondent on monthly rent of Rs.200 p.m. And not Rs.400 p.m. It was alleged that on 2-4-1979 the respondent threatened to remove the appellant No.l from the shop when the latter refused to pay rent at enhanced rate of Rs.450 p.m.
5. On 31-5-1980 the Rent Controller, Moro passed an order under section 16(1) of the Rent Ordinance directing the appellant No.l to deposit in Court (i) arrears of rent from November 1978 to May 1980 amounting to Rs.7,600 by 15-7-1980 and (ii) monthly rent for each month by 10th of that month at rate of Rs.400 p.m. There was no compliance with aforesaid order by the appellant No.l, who moved two applications, one for payment of arrears in instalments and the other for condonation of delay in deposit of monthly rent. Both the applications were dismissed by learned Rent Controller, Moro, who under the same order dated 30-7-1980 struck off defence of the appellants, who were directed to put the respondent in possession of the shop.
6. Said order dated 30-7-1980 was set aside in F . R . A . No.632 of 1980 by Mr. Justice Abdul Razzak A.
Thahim of this Court. His Lordship remanded the matter to the Trial Court for proceeding according to law, after observing as follows:- "The respondent has not moved the Rent Controller for ejectment of the appellant from the premises but he has passed the order of eviction on the basis of application filed by the appellant for condonation of delay and instalments. The proceedings under section 16(2) of the said Ordinance are independent, therefore, in the interest of justice both the parties should have been given opportunity to explain their case in these independent proceedings. This is lacking in the present order. The circumstances further show that there is some litigation between the parties on the point of title and tenancy, therefore, all these points could only be decided when some evidence is adduced by both the parties. I have seen some judgments of Civil Court and other documents which I do not like to discuss as the same will prejudice the case of the parties."
7.After remand, the respondent's counsel moved an applicationExh.44 for striking off defence of the appellants for failure to depositin the Court arrears of rent as well as the monthly rent.
Saidapplication was opposed by the appellants who filed objections. Learned Rent Controller after hearing counsel for the parties passed the impugned order dated 28-11-1984 striking off defence of the appellants, who were directed to hand over vacant possession of the shop in question to the respondent within 60 days. Hence this appeal.
8.I have heard Mr. Abdul Jabbar Soomro, Advocate for the appellants and Mr. Raja Khan, counsel for the respondent.
9.Learned Advocate for the appellants argued that the Rent Controller had no jurisdiction to pass order about deposit of arrears of rent and the monthly rent when the respondent in his rent application had denied being landlord of the appellants. It was added that in the Civil Suit No.9 of 1979 as well as in the Civil Suit No.58 of 1980 (filed by the respondent against the appellants) and in the Criminal case, stand of the respondent was that the appellants were not his tenants but were trespassers and hence the provisions contained by the Sind Rented Premises Ordinance did not apply to this case.
10.Learned counsel for the respondent argued that the appellants in their objections to the main case and to the application under section 16(2) of the Ordinance had admitted being in possession of the disputed shop as tenants of the respondent and hence the case was covered by the said Ordinance. Learned counsel cited PLD 183 SC 1, PLD 1985 Kar. 698 and 1981 SCSIR 789.
11.This is a unique case where the respondent in his rent application asserted that the appellants were trespassers in his shop, while on the other side appellant No.l claimed being tenant of the respondent in the disputed shop. Fortunately or unfortunately there is previous litigation between the parties and there are findings by different Courts which are binding on the parties. In Suit No.9 of 1979 appellant No.l claimed being tenant of the respondent and his suit was decreed with an observation by the Civil Court that the appellant No.l had occupied the shop as sub-lessee through Salim Iqbal. In his rent application under section 11 of the Ordinance, appellant No.l reiterated that he was tenant of the respondent. Criminal case filed by the respondent alleging that the appellants had trespassed in the shop ended in acquittal of the appellants and such order was maintained by this Court. These facts lead one to an irresistible conclusion that appellant No.l is tenant of the respondent and that relationship of landlord and tenant existed between them.
Appellant No.2 Abdul Ghafoor is brother of appellant No.l and he too is in possession of the shop in litigation as admitted by the parties. His position would be that of sub-lessee through the appellant No.l, I, therefore, hold that learned Rent Controller possessed jurisdiction to pass order about deposit of arrears of rent and monthly rent.
12. In respect of the observations made by the learned Single Judge of this Court, who decided F.R.A. No.632 of 1980, ; would say with respect that there was no dispute or litigation between the parties about title of the respondent over the shop it litigation. Moreover, an order under section 16(2) of the Ordinance car: be passed after such summary enquiry as may be deemed fit by the Controller, who is not required to pass such order after recording of evidence.
13. The present order challenged in this appeal was passed on an application Exh.44 moved by the respondent, although section 16(2) of the Ordinance does not require any such application being moved.
14. Admittedly, no rent has been deposited in pursuance of the order passed by the Rent Controller on 31-5-1980. Consequently the Rent Controller was not only competent but he was bound to strike off defence of the appellant No.l and order the respondent to be put in possession of the shop in question. I, therefore, dismiss this appeal with costs.