This appeal arises from the order of the learned VIth Senior Civil Judge/A.S.C. And Rent Controller (East), Karachi, dated 29th July, 1986, whereby he has dismissed the ejectment application filed by the appellant.
2. The respondent remained absent despite service of notice. I have, therefore, heard the learned counsel for the appellant and perused the relevant record. The brief facts of the case arc these.
3. On 20th November, 1984, the appellant filed an application under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter called `the Ordinance') for eviction of the respondent from the residential premises bearing No.F/762, Korangi Township, Karachi, claiming himself to be the owner thereof and the respondent as his tenant in respect thereof, on a monthly rent of Rs.200 only on the ground of default in payment of rent from December, 1971, onwards. The respondent filed written statement in denial of the appellant's claim. She pleaded that the house in question is owned by her as the appellant had sold and conveyed it to her in '1979 on payment of sale consideration of Rs.50,000. The relationship of landlord and tenant was appellant tiled his own affidavit-in-evidence in support of his case A,hcrc'n he, inter alia, deposed that the facts mentioned in the application arc true and correct the same may be treated as part of the affidavit.
He also deposed that the house in question was let out to the respondent on payment of rent of Rs.200 per month through 'an oral agreement but she has not paid any rent to him. He further deposed that the respondent in collusion with her son Ghulam Abbas and son-in-law Fida Hussain fraudulently prepared forged document i.e. Sale-decd and tried to get the house transferred in her son's name. Vic denied to have sold the house in question to the respondent. The respondent, however, failed to appear before the trial Court and hence neither the appellant was cross- examined nor was any evidence led by the respondent. The statement on oath thus made by the appellant remained uncontroverted. The learned Rent Controller, however, by his order under appeal rejected the ejectment application on the ground that the original documents of title were not produced by the appellant and that after the promulgation of the Ordinance there must exist written agrecmcnt between the parties to prove their relationship of landlord and tenant. Oral agreement in respect of tenancy had, according to the learned Rent Controller, no force. In this connection he placed reliance o n an authority of this Court reported in PLD 1985 Kar. 741. The learned Rent Controller also observed that had the respondent been the tenant of the appellant then surely she would have paid some rent at initial stage whereas admittedly she did not pay any rent to the appellant. He found the uncontroverted evidence of the appellant as lacking in confidence. Consequently, the learned Rent Controller held that he had no jurisdiction in the matter and hence dismissed the application as stated above.
4. I have heard Mr. Suleman Habibullah, learned counsel for the appellant. Fee submitted that in view of uncontrovcrted evidence of the appellant, who was not cross-examined by the respondent, there was obviously no good reason for the learned Rent Controller to have held that the evidence of the appellant was not acceptable or did not inspire confidence. He submitted that a learned Single Judge of this Court in Mst. Fatima v. Mst. Hanifa 1986 CLC 1613 has taken a different view and declined to follow the case relied upon by the learned Rent Controller i.e. Reported in PLD 1985 Kar.
741.
5.I have given due consideration to the submissions made by the learned counsel for the appellant and have also, with his assistance, perused the record of the rent case. The learned Rent Controller, I find, has failed to take note of the fact that even the respondent had admitted that as a matter of fact she had purchased the disputed house from the appellant. The ownership of the house was thus admitted even by the respondent. The appellant was thus admittedly the `landlord' of the disputed house within the meaning of the expression `landlord' a given in section 2(f) of the Ordinance. The respondent being admittedly it possession of the disputed house was bound to pay rent as consideration fo Possession unless it was proved by her that her occupation of the disputed house was in some other capacity. The respondent had come out with a specific plea o being in occupation of the disputed house as a purchaser thereof from the appellant. The burden of proof of this alleged fact was undoubtedly upon the respondent which she failed to discharge by having remained absent during the proceedings. The term `tenant' has also been defined in section 2(j) of the Ordinance is under:-- "(j) tenant means any person who undertakes or is bound to pay rent a consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes---
(i) Omitted being not necessary for this case.
(ii) Omitted being not necessary for this case."
6. Besides the above legal position there was an uncontroverted evidence of the appellant to the effect that he is owner of House No.F/762, Korangi Township, Karachi, and that it was let out to the respondent on rent of Rs.200 per month through an oral agreement. It was further averred by the appellant in his affidavit-in-evidence that the respondent had not paid any rent to him. It was also denied by him that he had sold the disputed house at any time and received any consideration in cash or kind from the respondent. There was no good reason for the learned Rent Controller to have discarded this uncontroverted evidence prevalent on record.
7. The only ground on which the learned Rent Controller has declined to exercise jurisdiction in the case is that there was no relationship of landlord and tenant between the parties as factually no written agreement creating the said relationship exists and that oral agreement in respect of tenancy had no legal force. In support of his view he has placed reliance upon a decision of this Court reported in PLD 1985 Kar. 741. The learned counsel has drawn my attention to another Single Bench decision of this Court delivered by my learned brother Salim Akhtar, J., in Mst. Fatima v. Mst.
Hanifa 1986 CLC 1613 wherein a contrary view has been taken after considering the case relied upon by the learned Rent Controller. It was held in the latter reported case as under:-- "Section 5 provides a manner for making the agreement and care has been taken to avoid any doubt or ambiguity in execution of the tenancy, agreement. It is well-settled that any person can enter into agreement of tenancy orally as well. It is not prohibited under law. However, it is also well recognised that as the tenancy creates a valuable right it is advisable and convenient that it should be in writing to avoid dispute regarding terms and existence of relationship of landlord and tenant between the parties. Therefore, section 5 is in the nature of procedural provision which requires the agreement to be executed in a particular form, but it does not nullify the agreement not made in this form. As observed in Khuda Yar's case PLD 1975 SC 678, the procedural provisions are "desired with a view to impart certainty, consistency, and uniformity to the administration of jusi'1ce and to secure it against arbitrariness, errors of individual judgment and mala fides." Section 5 was designed to complement section 6. This was necessary as under section 6 after expiry of agreed period of tenancy, the tenancy did not only cease to be valid but tinder section 15(2)1 the tenant was liable to be ejected. Therefore, in order to press in service the provisions of sections 6 and 15(2)1 it was necessary that the agreement of tenancy should be executed as provided by section 5. In my view section 5 requires agreement of tenancy to be made in writing in a particular form which shall if produced in Court be accepted without any further proof but it cannot be extended to mean that where the agreement of tenancy is in writing but not in the manner provided by section 5 the relationship of landlord and tenant shall not be created between the parties. Refer Mushtaq Ahmed v. Abdul Sattar 1984 MLD 1. It is a well-settled principle of interpretation that all the provisions of a statute are to be construed harmoniously and to avoid conflict. If a strict interpretation as contended by the learned counsel for the respondent is given to section 5 then the tenancy created orally cannot be treated as valid and will run counter to the provision of section 2(u) which defines tenant and does not exclude tenancy created by oral agreement. It is significant to note that in section 5(2) the production of certified copy (if registered document and where it is not compulsorily registrable then the original deed, duly attested as provided by subsection (1) shall be produced and accepted in proof of relationship. If a strict view is taken and this provision is held mandatory then although an unregistered agreement in terms of section 5(2) was executed, if it is lost it cannot be proved by producing its copy. The provisions of section 5 do not confer any substantive right. They are procedural in nature. If the agreement of tenancy in writing is not in terms of section 5 then neither it is invalidated nor the parties are debarred from proving the relationship of landlord and tenant by producing and proving such agreement or other admissible evidence as provided under law."
8. I find myself in complete agreement with the above reproduced view enunciated by my learned brother Salim Akhtar, J., and do not, with great respect, agree with the view expressed in Habib Ahmed v. Liaquat Hussain (PLD 1985 Kar. 741).
9. Under the aforesaid facts and circumstances of the cast; and for the reasons given hereinabove I would allow this appeal, set aside the impugned order of the learned Rent Controller and direct the respondent to hand over vacant possession of the disputed house to the appellant within four months. The parties arc, however, left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.