1. ' This First Rent Appeal is directed against the orders dated 21-11-1987, 27-8-1989 and 26-2-1990 passed by the learned Vth Senior Civil Judge and Rent Controller Karachi (East). By order dated 21- 11-1987 the learned Rent Controller was pleased to hold that there was a relationship of landlord and tenant between the parties, by second order dated 27th August 1989 the learned Rent Controller was pleased to dismiss review application filed by the appellant under Order 47, Rule 1 read with section 151, C.P.C. And by third order dated 26th February 1990 the learned Rent Controller was pleased to allow application under section 16 (2) of Sindh Rented Premises Ordinance, 1979 and direct ejectment of the appellant.
2. ' The brief facts giving rise to the present are that respondent Mahbub Jaffer All filed ejectment application against the opponent/appellant Mr. Zahir Hussain inter-alia stating therein that he is landlord of House No,7, Ist Floor, Subzvilla, D/8, Al-Hilal Housing Society, Karachi, and the opponent is his tenant in the said house on monthly rent of Rs,1,200 by virtue of agreement dated 15th April 1983.
3. The opponent had paid him Rs,10,000 as fixed deposit in addition to one month rent from 15th April 1982 to 14th May 1983. That the opponent has failed to pay rent from May 1983 till the filing of the application (which was filed on 22nd January 1986). That the opponent had filed a suit No,1431/1984 (New No, 430/1985) for permanent injunction which has been dismissed on 14-14986 due to non- prosecution. That the opponent is liable to be ejected on the ground of non-payment of rent. The opponent/appellant was served with notice and he filed his Written Statement stating therein that neither the applicant is the landlord of the disputed premises nor he is his tenant in the said house.
4. There is no private of contract between the parties. The Tenancy Agreement seems to be a forged document and as such its execution was denied. The opponent was not a tenant nor he deposited any amount with the applicant or paid any rent. In fact the opponent has purchased the case property from one Shaher Bano in the sum of Rs,1,00,000 out of which she has received Rs,75,000 as earnest money, and the opponent is holding possession of the premises in his own right and not as a tenant of the applicant. After selling the property to the opponent Mst. Shaher Bano became dishonest and greedy as the price of the property had gone up and therefore, she wanted to dispossess the opponent through Gundas, Police and Martial Law Authorities but she could not succeed. In view of the above circumstances he filed Suit No,1431/1985 but he was unaware if the same was dismissed for non-prosecution. That Mst. Shaher Bano filed written statement in the said suit wherein she falsely claimed that opponent is her tenant in the above property. Her husband also claimed to be owner of the property and moved applicatons to certain authorities in order to harass the opponent. There was no cause of action to the applicant and the application was liable to be dismissed.
5. ' The learned Rent Controller was pleased to frame the following preliminary issue in the case.
6. "Whether there exists relationship of landlord and tenant between the parties."
7. ' In support of their respective contentions Attorney of the applicant filed his affidavit-in-evidence and also examined Estate Agent Mohammad Hussain Thayer to show that the premises were rented out through him. Thereafter Mohammad Ali also produced Power of Attorney executed by Mehboob Jaffar Ali in his favour and that of his wife Mst. Shaher Bano. He also produced allotment order to show that the premises in dispute were allotted to Mehboob Jaffer Ali. He has also produced receipt of payment of water/conservancy charges paid in the name of Mehboob Jaffer Ali.
8. ' On the other hand the appellant has produced photo copy of Sale Agreement as Ex.O/3, receipt of payment of Rs,25,000 as Ex.O/4.
9. ' Mr. Mohammad Ali Attorney of the respondent has reiterated the contents of the ejectment application in his affidavit-in-evidence ' The learned Rent Controller after taking into consideration the evidence produced by the parties came to conclusion that there was relationship of landlord and tenant between the parties and therefore, the preliminary issue was decided in favour of the respondent.
10. ' Thereafter the appellant/opponent filed review application which was dismissed on 27-8-1989.
11. The respondent/landlord filed application under section 16 (2) and the same was allowed on 26-2- 1990. The present appeal is directed against the above three orders.
12. ' I have heard Mr. Hisamuddin learned counsel appearing for the appellant, Mr. Salim Karamally learned counsel appearing for the respondent, and have gone through the record and proceedings of the case very carefully.
13. ' It was contended by Mr. Hisamuddin, that the agreement of tenancy alleged to have been executed by the appellant was not exhibited on record. The respondent had failed to prove that the appellant had executed the said agreement and there were serious contradictions in the evidence of attorney Mohammad Ali and Mohammad Hussain Thayer on tha point. That Mr. Muhammad Ali Attorney of the respondent had filed application on 22-4-1984 before the Martial Law Authorities in which it was alleged that the appellant was a trespasser, and there was no allegation that the appellant was tenant of the, respondent. That this position has been admitted by Mr. Mohammad Ali in cross-examination, and therefore, the learned Rent Controller had erred in holding that the appellant was tenant of the respondent.
14. ' Mr. Salim Karamally learned counsel appearing for the respondent has contended that the application dated 22nd April 1984 was made by Mr. Mohammad Ali as he was misguided by some person, and the appellant had failed to pay rent. That Mr. Mohammad Ali was neither owner of the premises in dispute nor attorney at the time he had moved the application to the Martial Law Authorities, and therefore, the said application could not be taken into consideration. It was further contended that Mr. Muhammad Ali had rented out the premises to the appellant and he had signed the agreement.
15. ' I have considered the contentions. In the present case the main point was whether there was relationship of landlord and tenant between the parties. It is an admitted position that the rent agreement alleged to have been executed by the appellant on 15th April 1983 has not been exhibited on record and the appellant has denied its execution. The evidences led by the respondent on the point of execution of agreement of tenancy is contradictory and unreliable inasmuch as Mr. Mohammd Ali Attorney of the responent through whom the ejectment application was filed has admitted in cross-examination that he had not signed the tenancy agreement but his wife had signed the same at home. The rent agreement was prepared on 15-4-1983 and signatures were obtained on 16-4-1983. He has admitted that the opponent had not signed the tenancy agreement in his presence. Mr. Mohammad Hussain Thayer witness examined by the respondent has stated in his affidavit-in-evidence that the Flat No,7, Subz Villa was rented to the opponent through their Agency. The tenancy agreement was also witnessed and attested by their employee namely, Ramzan Ali. In cross-examination he has stated that he does not keep the record of the transactions taking place through his agency. First Muhammad Ali came to him for renting out his premises but he did not remember the date or the year when Mohammd Ali came to him. The agreement of tenancy executed between the parties bears signatures of his person who is working in his agency. Some advance amount was paid under that agreement but could not say how much amount was deposited. He did not know what was the rate of rent agreed under the agreement. The agreement was reduced in writing in his office. He did not remember as to where that agreement was signed and who had procured stamp paper of that agreement. He did not know the name of the tenant but can recognize him by face who had signed the agreement.
16. ' From the above admissions of attorney Mr, Muhammad Ali and Mr. Muhammad Hussain Thayer, it is clear that none of them is attesting witness of the agreement. There is no evidence that Ramzan who is alleged to have signed as a witness was dead or could not be available for giving evidence in Court. Mst. Shaher Bano who has signed the agreement as attorney has also not been examined.
17. ' Moverover, it has been admitted by Mr. Muhammad Ali that he had moved application dated 22- 4-1984 to SMLA Karachi, in which he has alleged that Zahir Hussain s/o Javed Hussain has occupied the above flat forcibly and was in unlawful and illegal occupation. There is no allegation in the application that appellant Zahir Hussain was tenant of the respondent. In view of the admission of Mr. Mohammad Ali that he had made the said application and its contents were true, I am of the considered view that there was no relationship of landlord and tenant between the parties specially when the said application was moved nearly one year after the execution of the alleged tenancy agreement, and the execution of tenancy agreement was not proved. The order passed by the learned Rent Controller on 21-11-1987 is therefore, set aside and it is held that there was no relationship of landlord and tenant between the parties and as such the ejectment application was not maintainable under the law nor the learned Rent Controller had jurisdiction to decide the above case.
18. ' In view of, my above finding, the orders dated 27-8-1989, dismissing review application and order dated 26-2-1990 allowing application under section 16 (2) of Sindh Rented Premises Ordinance, 1979 directing ejectment of the appellant have become infructuous and are hereby set aside.
19. ' However, the respondent will be at liberty to file suit for possession against the appellant if so advised.