By this F.R.A. the appellant has challenged order, dated 9-7-1991 passed by the Addl. Controller of Rents, Clifton Cantonment, Karachi whereby the appellant was directed to vacate House No.12-B 1st Central Lane, Phase-2, Defense Housing Society Ltd. Karachi within sixty days.
2. The above premises were rented out by the respondents to Late Mian Riaz Ahmad, husband of the appellant in 1976 and after his death the tenancy was transferred in the name of the appellant.
The mutually agreed rate of rent was Rs. 3,500 per month. The respondents alleged that the appellant had been habitual defaulter in payment of rent, water and conservancy charges and has not paid any rent whatsoever with effect from January 1986. The respondents, therefore, prayed for ejectment.
3. The appellant contested the rent case. She alleged that the respondents have entered into an agreement of sale of the disputed property with her for a sum of Rs. 10,00,000 and received an advance of Rs. 1,25,000. The balance was to be paid on 25-6-1986. The appellant, therefore, paid an amount of Rs. 42,000 being the rent from 1-1-1986 to 31-12-1986. In view of the said Agreement of Sale the relationship of landlord and tenant between the parties had come to an end. The appellant was entitled to retain possession of the rented premises in his own right without paying any rent.
4. The learned Controller framed an issue as to existence of relationship of landlord and tenant between the parties. He gave the reasons that the respondents had denied having executed any such Agreement of Sale or received any such amount alleging that the Agreement of Sale Exh. OW- 5 as well as the receipt of rent Exh.OW-4 were total forgeries. The appellant had not produced the originals of either the sale agreement or the receipt. Instead he produced Photostats copies of both these documents alleging that the original thereof were lost. The learned Controller by his order, dated 5-7-1987 after coming to the conclusion that the theft and the loss of original documents was not proved held that there existed relationship of landlord and tenant between the parties and that the appellant had denied the title of the landlord frivolously and was therefore, liable to ejectment. He, therefore, directed the appellant to vacate the premises within three months.
5. Against this order F.R.A. No.747/1987 was filed. My learned brother Mr. Justice Allah Deno Memon by his order, dated 16-11-1987, while maintaining finding on existence of relationship of landlord and tenant between the parties, set aside the order with regard to ejectment and directed the Controller to record evidence of the parties on the point of default in payment of rent. This order was challenged by the appellant in a writ-petition (C.P. No.D-490/1989) and the tenancy proceedings pending before the Controller were challenged in view of the fact that the relationship of landlord and tenant between the parties had come to an end. The petition was dismissed in limine by order, dated 16-8-1989. Against the said order the appellant went in Petition for Leave to Appeal to the Supreme Court, but the leave was refused by order, dated 24-1--1990. It will be useful to reproduce the following passage from the judgment of Supreme Court: "2. The petitioner was admittedly a tenant of the property. It is also admitted that the property is situated within the area where Cantonments Rent Restriction Act applies. When she was proceeded against for eviction on statutory ground of default etc., she invoked the constitutional jurisdiction of the High Court on the ground that she ceased to be a tenant when an agreement was entered into between the owner and herself for the purchase of the property by her and an advance out of the price settled was in fact paid. Her position, thereafter, according to the case set out by her, got transformed into that of a transferee in possession on the basis of an agreement to sell and was absolved of the responsibility to pay the rent. The High Court negative the claim of the petitioner observing as hereunder: 'The finding of the respondent No.2 (Rent Controller) about existence of relationship of landlord and tenant between the parties has not been disturbed under the order, dated 16-11-1987. Such finding is, therefore, binding on the parties till such time, the petitioner succeeds in her suit. In the circumstances present case is not covered by the dicta laid down by the Supreme Court of Pakistan in the case of Rahmatullah v. Ali Muhammad and another 1983 SCM R 1064, where the sale-deed creating title to the property in litigation in favour of the landlord, was successfully challenged before the Rent Controller and the tenant filed a civil suit for cancellation of the sale- deed as well as of the rent-deed.
In the instant case even the petitioner claims her right through the respondents Nos.3 and 4 on the basis of the alleged sale agreement, which is yet to be executed, even if the petitioner succeeds in her suit'.
3. We do not find that any question of law requiring further examination has been raised in the case because a number of decisions have been given by this Court on the question specifically raised before us, e.g. Rashid Ahmad v. Messrs Friends Match Works PLD 1989 SC 503 and Rehmatullah v. Ali Muhammad and another 1983 SCM R 1064. The High Court has left the main controversy to be decided by the Civil Court without affecting the jurisdiction of the Rent Controller in this case. We, therefore, refuse leave to appeal".
6. It is an admitted position that the appellant had entered into the rented premises as a tenant.
Hence the burden was heavily upon her to show that the relationship of landlord and tenant between the parties had come to an end and that she was no more required to pay the rent. It may also be mentioned that the admitted position is that besides the alleged tender of rent of Rs.42,000 by Exh.OW-4, which is on 31-12-1986, no further rent whatsoever has been paid by the appellant to the respondents in spite of such an order having been passed by the Controller on 14-4-1990. The appellant has disputed his liability to pay any further rent as an agreement of sale, Photostats copy of which was produced as Exh.OW-5, had been entered into between the parties as shown above.
The burden to prove the Agreement of Sale was on the appellant. She miserably failed to prove the same. She did not produce the original agreement of sale or the original receipt of Rs.42,000. The respondents have denied having executed any such agreement or received the amount. Besides there is no stipulation in the said agreement that henceforth the appellant shall not pay the rent.
The balance of sale price was not paid and registered sale-deed was not executed. Hence the learned Rent Controller was perfectly justified in coming to the conclusion that relationship of landlord and tenant existed between the parties and that the appellant had not paid any rent whatsoever from January 1986.
7. This is a case of real hardship to the respondents. The appellant is protracting the proceedings and unauthorized possession of the rented premises since September 1986. She is dragging the respondents by filing numerous proceedings of different nature before various Courts including the High Court and the Supreme Court on the basis of forged documents and on frivolous grounds.
8. Mr. A.S. Sarwana, learned counsel for the appellant, relying upon the case of Abid Hussain v. Afsar Jehan Begum PLD 1973 SC 1, has contended that the consistent practice of the High Courts is that a regular appeal is not to be dismissed in limine. This ruling is distinguishable from the facts of the present case, because this is a rent matter and it is a case of hardship. I have already pointed out that this is a case of hardship and the appellant is protracting; the proceedings with unauthorized possession for the last 8 years of the rented premises which is a bungalow situated in a posh locality i.e. 1st Central Lane, Phase-II, Defense Housing Society, Karachi and is causing unbearable loss to the respondents. Hence I dismiss the appeal. The appellant is, however, directed to vacate the premises within 90 days from today, provided she pays rent regularly.
H.B.T./M-1467/K