1. ' The above four appeals arise out of a common judgment dated 2-12-1984 of the IVth Additional District Judge, Karachi passed in Rent Appeals Nos.385, 386, 387 and 388 of 1978. By this common judgment, I propose to dispose of the above four appeals. The first respondent filed four eviction applications Nos.1377/71, 2906/71, 1379/71 and 1381/71 against the tenants and the present appellants on the ground of default in payment of rent by the second respondents in each case and also on the ground of subletting the premises by second respondents in each case to the appellants. The notices were served on the appellant as well as second respondent in each case.
2. As the second respondent did not file any written statement, the ex parte proceedings were ordered on 26-5-1973.
3. ' The appellants in all the above appeals contested the eviction proceedings. The appellants in the above cases pleaded that they were inducted in the premises on payment of pugree or premium by some one who acted as Chowkidar of the landlords but he refused to issue rent receipts in their names. They also produced receipts which were issued in the names of the second respondents.
4. On pleadings of the parties, following preliminary issue was struck for determination: "Whether there exists relationship of tenant and landlord between the applicant and opponent No,2/Appellant?"
5. ' The first respondent examined Muhammad son of Mukarram in support of the eviction applications. Appellant examined himself in rebuttal in IInd. Appeal No,5 of 1985. The appellants produced documentary evidence in support of their versions.
6. ' The Controller, on assessm ent of the evidence (both oral and documentary) adduced by the parties, came to the conclusion that the appellants came into occupation through the original tenants without written consent of the landlord and therefore the preliminary issue framed was decided then. In that view of the matter, the eviction applications were allowed against the second respondent and as against appellants it was held that there existed no relationship of tenant and landlord between the parties.
7. ' The appellants in all the five cases filed separate appeals. The learned IVth Additional District Judge, on re-assessm ent of the evidence on the record, came to the conclusion that the appellant failed to prove that they are tenants of the premises in question. He held that the documents produced by the appellants do not prove the relationship of landlord and tenant between the parties. In that view of the matter, the appeals were dismissed. Hence the present appeals.
8. ' I have heard Mr. Abdul Majeed, learned counsel for the appellants and Mr. Salim Karamally, learned counsel for the respondents in all the appeals. The second respondent though served remained absent. I have perused the R & P of the case and have also gone through the impugned order and the judgments of the Courts below.
9. The appellants were seeking for themselves the status of a tenant of the first respondent. That status must the secured by evidence of a very high order. The rent receipts produced by them were not issued in their names but were issued in the names of the second respondents. The tenancy in favour of the appellants has not been established by any writing or other reliable evidence. The learned Controller, as I find, rightly scrutinized the evidence that has come on record and his conclusion to the effect that there existed no relationship of tenant and landlord between the parties, is based on proper appreciation of evidence. This finding of fact was affirmed by the first appellate Court.
10. ' To sum up, the concurrent findings of both Controller and the appellate authority that there existed no relationship of landlord and tenant between the parties, is well founded and merits no interference.
11. ' In Agha Mohammad v. Haji Maula Dad (PLD 1971 Quetta 10) it was held that acceptance by a landlord of money offered as rent by an occupant of his property cannot create a tenancy unless the money has been received by the landlord with the intention of creating a lease; and the question of intention is always a matter of evidence.
12. ' Mr. Abdul Majeed contended that there is no evidence of default and the mere averment is not sufficient. In support of this contention, reliance is placed on a case namely Syed Muhammad Sadiq Shah v. Nasim Akhtar etc. (1991 CLC 1329).
13. ' On the other hand, Mr. Salim Karamally submitted that in the instant case, there existed no relationship of landlord and tenant between the parties; as such it was not necessary to lead any evidence in support of plea of default.
14. ' On the perusal of the record, I have found that the first respondent examined himself and the appellants examined themselves in support of their respective versions. The Controller, on the assessm ent of the evidence, has come to the conclusion that there existed no relationship of landlord and tenant between the parties. This finding was affirmed by the first appellate authority.
15. There is no cavil for the proposition that the pleadings cannot be treated as a substitute for the evidence.
16. ' The contention of Mr. Abdul Majeed is that it was obligatory on the part of the Rent Controller to record the evidence on the question of default. The contention is devoid of force. The appellants specifically pleaded in their written statements that they were inducted as tenants in respect of the premises in their occupation. This plea was not accepted by the Controller for cogent reasons. The receipts produced by the appellants bear the names of the second respondents. There is no cogent evidence to show that they were inducted as tenants by the first respondent.
17. ' In Nisar Ahmad v. Nazar Muhammad (PLD 1974 Lahore 489), a learned single Judge of Lahore High Court held that the Rent Controller after holding that the relationship of landlord and tenant did exist was entitled to pass an eviction order straightaway for the reason that the tenant having denied the relationship was estopped and precluded from pleading or proving, that he had paid rent.
18. ' In Nooruddin and another v. Muhammad Qasim and 6 others (PLD 1976 Karachi 921) an eviction application was filed against the appellant who had denied the relationship. A preliminary issue was framed. It was found that there was relationship of landlord and tenant between the appellant and the respondent. The Controller without recording any evidence on the question of default, passed the eviction order. The appellant being aggrieved by the above order had filed first appeal which was dismissed by the District Judge. After that, the appellant had filed a second appeal which was allowed. It may be advantageous to reproduce hereinbelow para .8 of the judgment which reads as follows:- "8. The question of the propriety of recording evidence on the question of a tenant's failure to pay rent must always depend on the facts and circumstances of a case. Thus, for example, if, in order to justify his admitted non-payment of rent, a tenant raises a frivolus objection to the landlord's title, then the Rent Controller may be justified in ordering the eviction of the tenant because of his admission about the non-payment of rent without recording evidence, provided that the landlord drops his claim to the arrears of rent. But, if the landlord does not drop his claim for the arrears of rent, evidence has to be recorded, unless the quantum of rent due has been admitted. Again, even when the quantum of rent due is admitted, there could be cases in which the failure to pay rent was justified; therefore in such cases it could be the duty of the Rent Controller to record evidence, and it was so in both the instant cases. Because the learned counsel for the respondents had not placed before the appellants the relevant facts and because the title of the respondents was under a cloud, the appellants were justified in withholding the payment of rent until the respondents had proved their title. And the respondents did not even make a reasonable attempt to prove their title until this appeal, because Mr. S. Ali Nazar had not stated in the Courts below that the respondents had filed an application to convert their pauper application into a suit. And as the appellants had not been informed of this application, they were entitled to assume that the compromise order was illegal and this apart from the fact that the title of the respondents was perfected by the lease obtained by them long after the institution of their eviction application. In this background, I have no doubt that the appellants were justified in withholding the payment of rent, and the fact that they were in arrears does not mean that they were not willing to pay rent.
19. This was, therefore, a very fit case for the exercise of discretion in favour of the appellants under section 13 of the said Ordinance and the Courts below erred in law in not exercising that discretion.
20. Accordingly, I set aside the orders under appeal, directing the eviction of the appellants, and dismiss both the eviction applications. The appeals are thus allowed with costs in this Court."
21. ' In Muhammad Siddique v. Naseer Ahmad (PLD 1976 Lahore 1078), it was held that the principle for forfeiture of tenancy on account of false and contumacious denial of certain established and admitted facts qua relationship of landlord and tenant has correctly been applied.
22. ' In Amanullah Khan v. Chotey Khan (1978 S CM R 14), it will suffice to observe, the Hon'ble Supreme Court maintained the eviction order passed by the Controller without recording evidence on the question of default after having decided the issue of relationship in favour of landlord.
23. ' In Muhammad Bux and another v. Ghulam Rasool (PLD 1982 Karachi 28), the appellant pleaded in his written statement that he had purchased the property in question from its original owner for a sum of Rs,1,500 prior to the date of purchase by the respondent. He also pleaded that he had not paid any rent to the said original owner Balumal after the above agreement. It is pertinent to note that the appellant did not come forward to support the plea raised by him in his written statement.
24. He neither appeared as a witness nor produced any evidence in support of the averments contained in para 4 of the written statement. In these circumstances, it was held that the Controller could pass an order of eviction on the ground of default without recording any evidence as the factum of default stood proved by the denial of the relationship.
25. ' In Mst. Fatima and 4 others v. Fazalur Rehman (1983 CLC 792 Karachi), it was held that "it is not every case in which the existence of relationship of landlord and tenant is denied and it is found to exist that tenant's eviction should be ordered straightaway without recording evidence on the question of default for the reason that in some cases the denial of relationship may be for some cogent reasons as in the case under consideration."
26. The principle deduced from the above cases is that if a tenant raises a frivolous plea and denies the title of his landlord or the relationship and if the Controller, on the assessment of the evidence, comes to the conclusion that the plea raised by the tenant was unfounded, in that event, the Controller may not record any evidence on the ground of default and may pass an order of eviction straightaway on the above ground.
27. ' In the instant case, the appellants specifically pleaded' that they were inducted as tenants in respect of the premises in their occupation. The Controller, on assessment of the evidence, came to the conclusion that there existed no relationship of landlord and tenant between the appellants and the respondents. He also found that the second respondent did not contest the eviction applications and the second respondents were declared ex parte. In that view of the matter, the Controller may pass an of eviction straightaway without recording of evidence on the ground of default.
28. In view of the above discussion, the above appeals no have merit and hence they are dismissed with no order as to costs. However, I grant two months' time to the appellants to hand over the vacant possession of the premises to the first respondents.