1. ' Appellant Kamran Butt has assailed the orders dated 6-1-1989, dated 31-3-1990 and the ejectment order dated 17-4-1990 passed by the Additional Controller of Rents, Clifton Cantonment in Rent Case No. 44 of 1988.
2. ' Admittedly the flat in litigation bearing No. F-3, Block-F, Tooba Apartment and Shopping Arcade 87-P, National Highway, Defence Officers' Housing Authority Phase I, Karachi, belongs to respondent Lt.-Col. Syed Iftikhar Ahmed and it is in possession of the appellant.
3. ' Rent Case No. 44 of 1988 was filed by the respondent under section 17 of the Cantonments Rent Restriction Act (hereafter mentioned as the Act) for eviction of the appellant from the flat in litigation on the only ground of nonpayment of rent from 1-7-1987. As per the rent application the tenancy in respect of the said flat was created through a temporary agreement dated 10-12-1986 which required the appellant to pay to the respondent in advance, monthly rent of Rs. 2,000 P.M.
4. And hiring charges for the fixtures and fittings in the flat at the rate of Rs.1,000 P.M.
5. ' The rent case was contested by the appellant who in his written statement denied being tenant of the respondent. The tenancy agreement dated 10-12-1986 was challenged to be fraudulent, fictitious, bogus and false. Appellant denied his signature on the tenancy agreement which was not attested by any Magistrate or a Civil Judge or a Rent Controller and was inadmissible in evidence, as contended. Case of the appellant was that on being approached by Karim and Abbas he gave loan of Rs. 75,000 to the respondent on 17-8-1982 in consideration of occupying his flat, where he was required to instal fittings and fixtures on condition that he would be reimbursed with the amount spent on the fittings and fixtures, at the time of return of the loan amount. Appellant claimed to have spent Rs.46,655 on the fittings and fixtures, after getting key of the flat on or about 20-12-1982. Appellant claimed to have occupied the flat in the first week of January 1983. Appellant claimed to have paid ,to the respodent a further loan of Rs. 10,000 on 3-12-1983 and another loan of Rs. 25,000 on 4-2-1985 through Abbas and Karim. Appellant took stand that his occupying flat of the respondent, was by way of security in lieu of the loans advanced to the respondent and for the money spent on fittings and fixtures. Appellant added that he was being asked by the respondent to surrender possession of the flat without repayment of loan money and without reimbursement of the amount spent on fittings and fixtures in the flat.
6. ' After receiving evidence of the parties, learned trial Court under an order dated 6-1-1990 held that relationship of landlord and tenant existed between the parties since occupation of the flat by the appellant. In continuation of said order, learned trial Court passed rent deposit order dated 31-3- 1990, directing the appellant to deposit arrears of rent for the period Ist July 1987 to 31-3-1990 before 10-4-1990 at the rate of Rs.3,000 P.M. And to deposit monthly rent for each month starting with April 1990 by 5th of the next following month.
7. ' Appellant failed to comply with the aforesaid order dated 31-3-1990, and as such his defence was struck off and the respondent was ordered to be put in possession of the flat in litigation, in terms of section 17(9) of the Act, as per the impugned order dated 17-4-1990. Hence this appeal.
8. ' Mr. Rahmat Ellahi, learned counsel for the appellant referred to paras. 2 and 3 of the rent application where respondent asserted that the appellant was his tenant. It was argued that the respondent in his affidavit has given the facts which are in conflict with the facts given in the rent application. Learned counsel went on to argue that possession of the flat was given to the appellant on 10-12-1986 as per the rent application and in 1982 as per the affidavit. It was added that in the rent application, the respondent had not stated if prior to the written rent agreement, there was an oral rent agreement between the parties. Learned counsel argued that as per para.17 of the affidavit the rent agreement was executed on 10-12-1986 and as such the flat could not have been rented out from 1-1-1987. It was added that in the rent agreement, there was no mention if possession of the flat was given to the appellant in 1982 and this indicated that the appellant was not in possession on 10-12-1986. It was added that the appellant was not confronted with the rent agreement dated 10-12-1986 and that there was contradiction between the evidence of the respondent and the evidence of his witnesses Abdul Karim and Abbas about the payment of Rs.75,000 as advance rent and about execution of receipt for said amount and about going to the Oath Commissioner for attestation of the agreement. Learned counsel for the appellant further argued that onus was on the respondent to establish that he was tenant of the appellant. In support learned counsel for the appellant cited the cases of:
(ii) Muslim Commercial Bank Ltd. v. Syed Ahmad Saeed Kirmani (1991 CLC 140).
(iii) Ch. Nasrullah Khan v. Muhammad Ramzan and others (1991 CLC 104).
(iv) Mst. Roshan Bi and others v. Munawar Hussain Gil (1987 M LD 3263).
(v) Ishtiaq Ali v. Muhammad Nasiruddin (1988 MLD 2526).
9. ' Mr. Abdul Majeed, learned counsel for the respondent referred to the sub-lease between Defence Officers' Housing Authority and the respondent in respect of the flat in litigation and argued that possession of the flat was received by the respondent from the Defence Authority on 10-12-1982 and there was an undertaking by the respondent to pay to Messrs Ali Associates Ltd., Rs.1,32,000 as balance amount of the flat, although possession of the flat was given to him, as per the same undertaking dated 9-12-1982 copy Ex.A-Z. Learned counsel for the respondent argued that since the respondent was given vacant possession of the flat, he could get fixed deposit on renting out of the flat, or he could get advance rent from anybody, and that it was not necessary for the respondent to take any loan from the appellant. It was added that the amount of Rs.75,000 was taken from the appellant, not as a loan, but as advance rent and that the appellant had been issued rent receipts Exs. 'D', `E', 'F', `G' & 'H'. In respect of the relationship of landlord and tenant between the parties, learned counsel for the respondent relied on the agreement copy Ex.INT-1, where advance rent for six months, is said to have been received from the appellant. It was further argued that the respondent being an officer of Army could not have taken loan from an unknown private person and no receipt of the loan amount was obtained as admitted by the appellant in his cross-examination. In support learned counsel for the respondent cited the cases of:
(i) Muhammad Bux and another v. Ghulam Rasul PLD 1982 Kar.
10. 28.
(ii) Aziz Ahmed v. Anwar Ali and others 1984 CLC 1778.
(iii) Haji Rahmatullah v. Shaikh Fazal-e-Haque 1986 CLC 1731.
(iv) Rafiullah Khan v. Iqbal Hussain PLD 1987 Kar.
11. 608.
(v) Manzoor Ahmed v. Mst. Fatima Bibi 1980 SCM R 756.
(vi) Nazir Hussain v. Taj Muhammad and another 1984 SCM R 1218.
(vii) S. Muhammad Alam v. Mst. Ageela Begum 1985 CLC 2791.
12. It is a settled proposition of law that onus to prove, existence of relationship of landlord and tenant between the parties, is on the landlord who seeks eviction of his tenant. In the present case there is written rent agreement, copy Ex. N-1 filed with the rent application. The agreement shows that on 10-121986 the respondent agreed to let out the flat in litigation to the appellant, for a period of six months from 1-1-1987 on monthly rent of Rs.3,000 including Rs.1,000 as hire charges for fixtures and fittings. The agreement further shows that Rs.18,000 were paid as advance rent, for the period ending 30-6-1987. In support of the rent agreement copy Ex.N-1, the respondent filed his own affidavit and affidavits of his witnesses Abdul Karim and Abbas. They stated in their affidavits that an advance rent of two years was mutually agreed between the parties and it was also agreed that from the advance rent of Rs.72,000, Rs.60,000 would be retained by the appellant for installation of fixtures and fittings in the flat and that balance of Rs.12,000 was paid in cash to the respondent. These facts were not mentioned in the rent agreement (copy Ex.N-1) or in the rent application. It was shown in the rent agreement that an advance rent for six months was paid. It was not said in the rent application if any advance rent was paid. A perusal of the rent application shows that relationship of landlord and tenant was created between the parties on 10-12-1986 when the rent agreement copy Ex.N-1 dated 10-12-1986 (mentioned in the rent application as temporary agreement) was executed. Affidavit of the respondent, however, shows, that the respondent was approached by the appellant through Abdul Karim and Abbas for letting out the flat in litigation on rent and that such proposal was agreed. It was added that instead of written agreement there was oral agreement by which the flat was let out on payment of Rs.2,000 per month as rent and Rs.1,000 per month for the additional fittings and fixtures, to be installed at cost of the respondent. It was under the oral agreement thaf advance rent of two years was agreed to be paid by the appellant to the respondent, but the respondent allowed the appellant to retain Rs.60,000 to be spent on additional fittings and fixtures in the flat, as stated in the affidavit. In this way cash of Rs.12,000 was paid to the respondent and remaining Rs.60,000 was retained by the appellant, as stated by the respondent in his affidavit. None of these facts were mentioned, either in the rent application or in the rent agreement. Rent application does not contain the fact given in the rent agreement, that advance rent for six months was paid on 10-12-1986. Perusal of the tenancy agreement shows that its life was only for six months. In the rent application it was not mentioned, as to for how long the rent agreement was to remain effective. In this way there are material contradictions between affidavit of the respondent and his rent application and between the rent application and the rent agreement.
13. ' Affidavits of witnesses Abdul Karim and Abbas are identically worded. They have not stated a word about the written agreement copy Ex.N-1. These witnesses supported the oral rent agreement between the parties, but there is no mention about the same in the rent application. In this way respondent cannot prove a fact, which was not pleaded by him. On this point learned counsel for the appellant cited the case of Muslim Commercial Bank Limited 1991 CLC 140, where it was held by Lahore High Court that no party in a civil suit was entitled to lead evidence in respect of a plea which was not taken in pleadings. Although this is not a civil suit, but the principles laid down for civil litigation would apply to this case. There are material contradictions in the evidence, about the oral agreement between the parties in respect of letting out of the flat. Abdul Karim stated in his affidavit that Rs.12,000 were paid in cash to the respondent by the appellant who retained Rs.60,000. In his cross-examination he stated that the cash of Rs.12,000 was paid to the respondent by the appellant but he failed to remember if such amount was paid four days after settlement of terms and conditions of the tenancy. Abdul Karim could not remember if he was at all present at the time when the amount was paid to the respondent by one Kukoo. He could not remember if amount of Rs.72,000 was received by Kukoo in absence of the respondent. He could not remember if any amount was paid at the time of settlement of the terms and conditions of the tenancy. Abdul Karim admitted that money transaction between the appellant and Kukoo was made in his shop and that the amount of Rs.72,000 was paid by the appellant to Kukoo. Abdul Karim admitted having personal relations with the respondent. In his cross-examination, the respondent stated that initially there was an oral agreement, and the written agreement was executed as it was demanded by the Cantonment Board. Respondent further stated in his cross, that the stamp paper on which the tenancy agreement was written, was purchased by him and the appellant jointly, and that he had signed the register of the stamp vendor. He failed to recollect, as to, where the rent agreement was typed, but he asserted that the same was typed at his instructions, and the same was handed over to the appellant on 9-12-1986 in the shop of Abbas, where it was brought by the appellant on 10-12-1986 and on the same day he went to the Oath Commissioner for attestation, alongwith the appellant and witness Abbas and one Joje who drove the car. Respondent admitted that he had friendly relations with Abbas, whose car he was using whenever he visited Karachi. He named Abbas to be present at the time of attestation. Respondent denied if rent agreement was attested by the Notary Public on 16-12-1986 and not on 10-12-1986. Rent Agreement copy Ex.N-1 shows that it was attested on 10-12-1986 by an Oath Commissioner. Respondent admitted that the Tenancy Agreement was not signed in presence of the Oath Commissioner. In the Tenancy Agreement there is no endorsement by the Oath Commissioner to the effect that he had verified the signatures of the executants. Respondent claimed that contents of the Tenancy Agreement and each of its clauses, were read over and explained to the appellant by him personally on 9-12- 1986 in presence of a witness and that the appellant signed the same after understanding. So also the witness. No such witness was examined to support the rent agreement. Respondent stated in cross-examination that he had been receiving rent from time to time, from the appellant and had been issuing the receipts. Perusal of the rent application shows that the appellant has paid rent only once on 10-12-1986 for six months and thereafter he never paid the rent. In this respect the respondent produced copies of the receipts Exs.'13', `E', 'F', '6' and 'H'. They are, however, of the period before 10-12-1986. It is not known, as to why the respondent in his rent application did not mention, that prior to 10-12-1986 he had relationship of landlord and tenant with the appellant, and that he had been receiving rent from him. Respondent admitted that he did not receive rent from the appellant directly. If this was the position he should have examined the persons, through whom he was receiving the rent.
14. ' In his cross-examination, Abbas stated that amount of Rs.72,000 was paid to Kukoo alias Naveed Qamar for payment to the respondent after 3/4 days of settlement of terms of lease. Kukoo alias Naveed Qamar has not been examined. Moreover said statement is in conflict with evidence of Abdul Karim and of the respondent, that Rs.60,000 were retained and Rs.12,000 only were paid by the appellant to the respondent. Even Abbas said so in para. 5 of his affidavit. In his cross- examination Abbas added that in his presence and in presence of Abdul Karim the amount of Rs.72,000 was paid to the respondent. In his cross-examination Abdul Karim has contradicted Abbas by saying that the respondent was paid Rs.12,000 by the appellant, at the time of settlement of the terms and conditions of the tenancy. Abbas said in his cross-examination that a receipt of Rs.72,000 was issued by the respondent, while Abdul Karim stated in cross-examination that no such receipt was issued. Abbas admitted that he had personal relationship with the respondent for over 20 years. He contradicted the respondent, by saying that the tenancy agreement was not prepared in his presence. He claimed to have signed the tenancy agreement, on the next day, with the appellant. Above discussion would show that evidence of the respondent is self-contraditory, interested and unreliable. Respondent did not examine any reliable witness to support the rent agreement. Since the respondent was relying on the rent agreement, he was bound to prove its execution, as held in the case of National Bank of Pakistan 1991 CLC Note 75 p.59. In the case of Ch. Nasrullah Khan 1991 CLC 104, the evidence of witnesses as to preparation and execution of sale agreement and about payment of consideration was contradictory, and the view taken was, that the vendee plaintiff had failed to discharge the onus. The respondent has failed to prove that possession of the disputed flat was given to the appellant in pursuance of any agreement of tenancy and in such circumstances the issue of relationship of landlord and tenant is to be decided in the negative. In the case of Mst. Roshan Bi 1987 M LD 3263 there was nothing on record from which it could be inferred that th'e occupant of the property in litigation, was inducted as a tenant, in respect of the same, and there was no cogent evidence on record from which it could be inferred that the occupant had ever paid any rent in respect of the same and the order dismissing the eviction application was maintained. Position in the instant case does not appear to be materially different from the one existing in the cited case. In the case of Ishtiaq Ali 1988 MLD 2526 it was held that the entire burden, to prove the existence of relationship of landlord and tenant, was on the party substantially asserting the affirmative of the issue, when the other party denied such relationship.
15. ' Before arriving at the conclusion, it is necessary to discuss the authorities cited by learned counsel for the respondent. In the case of Nazir Hussain 1984 SCM R 1218 the tenant took plea in the ejectment proceedings against him, that he had inherited' half of the property in litigation from a lady alongwith her other heirs, on the basis of a dower deed, which was not produced in the Courts below, where no witness in support of the claim was examined. Such plea was not accepted by the Courts below whose concurrent finding was, that the relationship of landlord and tenant was established between the parties and in the circumstances the Supreme Court of Pakistan dismissed application of the tenant for leave to appeal. In the case of Muhammad Bux and another PLD 1982 Kar. 28, it was held that where relationship of landlord and tenant was denied by the occupant, but such relationship stood proved, then the Rent Controller could pass an order of ejectment without recording evidence on the point of default. In the case of Aziz Ahmed 1984 CLC 1778, the finding by the Rent Controller on the basis of the evidence on record that there existed the relationship of landlord and tenant between the parties, was not disturbed, as the Rent Controller was found to have taken a reasonable view, which was supported by the evidence on record. In the case of Rafiullah Khan PLD 1987 Kar. 608 there was no any observation on the point of relationship of landlord and tenant, because in said case such relationship was not denied. In the case of Manzoor Ahmed 1980 SCM R 756 the tenant facing ejectment case, took plea that the house in question was agreed to be mortgaged to him, but he failed to establish that executant of the document of mortgage had a power of attorney from the landlady to execute the document of mortgage. He did not examine executant of the deed of mortgage to establish that the latter in fact executed the document of mortgage and that he was authorised to do so by the landlady his mother. Such plea of the tenant was not accepted by any of the Courts below and the Supreme Court of Pakistan declined to grant leave to appeal. In the case of S. Muhammad Alam 1985 CLC 2791 the plea taken by the tenant was that the flat in dispute was agreed to be sold to him. Such agreement was denied by the landlady. The trial Court disbelieved the contention of the tenant about the sale transaction, in view of the contradictions in the written statement, affidavit in evidence and depositions of the tenant and his witness and in the circumstances plea of the tenant was not accepted. In the case of Haji Rahmatullah 1986 CLC 1731 the occupant of the disputed property facing ejectment proceedings denied being tenant of the applicant, but the Rent Controller, relying on the copy of a sale-deed and on copy of a notice issued under section 13-A of the W.P. Urban Rent Restriction Ordinance by the purchaser to the occupant, found the relationship of landlord and tenant existing between the parties. In the cited case, the premises in litigation were already in possession of the tenant before purchase of the same by the landlord. In the instant case the appellant occupied the flat in litigation after the same was purchased by the respondent. In the cases of Nazir Hussain, Muhammad Bux, Aziz Ahmed, Manzoor Ahmed and S. Muhammad Alam, the relationship of landlord and tenant between the parties was established, on the basis of concrete evidence, and the pleas raised by the tenants were not accepted. Such position does not exist in the instant case, where evidence on the point of relationship of landlord and tenant between the parties is full of contradictions and unreliable. The written agreement of tenancy said to have been executed between the parties, has not been produced in original. In the circumstances none of the cases cited by learned counsel for the respondent, furthers case of the respondent.
16. ' The very basis for initiation of proceedings under section 17 of the Act is, existence of relationship of landlord and tenant between the parties. In the present case the flat in litigation admittedly belongs to the respondent and it is admittedly in possession of the appellant and yet the respondent has not been able to establish that he inducted the appellant in the flat as his tenant.
17. In absence of any convincing evidence establishing relationship of landlord and tenant between the parties, the proceedings before learned Additional Controller of Rents, Clifton Cantonment, Karachi were coram non judice and ultra vires and illegal. Hence this appeal stands accepted and the impugned orders including the one about ejectment, are set aside and the rent case stands dismissed.