1. Appellants who are legal heirs of deceased Haji Faqir Mohammad have filed this appeal against dismissal of Rent Case No. 1465/1985, ordered by the Ist Senior Civil Judge and Rent Controller (South), Karachi on 1-8-1987.
2. Said rent case was Piled by Haji Faqir Mohammad predecessor of the appellants, for eviction of respondent No. 1 Khuda Bukhsh from a room mentioned in para. 1 of the rent application.
3. Subsequently on 24-11-1982 respondent No.2 Hazratullah moved an application for being joined as a party on the ground that he was in possession of the premises in dispute, where no person with name of Khuda Bukhsh remained and that some litigation was already pending between him and the appellanit. On 25-2-1986 the respondent No.2 was joined as a party. Consequently the matter was adjourned for filing of amended rent application, which was filed on 11-8-1986.
4. Respondent No.2 riled written statement but no written statement was filed by the respondent No.1, who did not come forward to contest the matter.
5. In his amended rent application, the appellant claimed being owner of the premises in litigation viz. Room No.4,on Plot No.3307 of amalgamated Plots Nos.3314, 3314-A, 3307, 3307-A and 3307-B of Lyari Quarters, Karachi, where respondent No. 1 Khuda Bukhsh was said to be tenant on monthly rent of Rs.
100. The appellant sought ejectment of his tenant on the grounds that he had not paid rent since April 1980, that the premises were bona fide required for re-construction and that the respondent No.1 had sublet the premises to the respondent No.2 without consent and permission and as such the respondent No.2 was in unauthorised possession of the same. .In his written statement, the respondent No.2 raised preliminary objections,- that the rent application was not maintainable in law as the respondent No.1 was not tenant of the appellant and that the respondent No.2 was in occupation of the ' same in his own right and that the amended application included material which was not put in the original application. On merits it was denied if the appellant was lawful owner of the disputed premises.
6. It was alleged that he had obtained lease of the plots-mentioned in the rent application illegally and by misrepresentation of facts. It was added that in the original rent application respondent, No.1 was not shown to be occupying Room No.4 but this was shown in the amended application.
7. That in the original application the appellant sought possession of four rooms from the respondent No.1 without. Disclosing the plot numbers and room numbers. Appellant was said to have filed yet another Rent Case No.4177 of 81 (new Rent Case No 1466 of 85) against the respondent No.2 in respect of two rooms shown to b& in his possession. Said rent case was said to have been dismissed. Respondent No.2 alleged that present rent case was filed with ulterior motive. Against the respondent No.1, who was a dummy person, with a view to obtain ex parte order of ejectment.
8. Respondent No.2 claimed to be in exclusive possession of room No.4 as well as Rooms Nos.10 and 11 for preceding 15 years. It was alleged that the appellant had riled similar rent applications against dummy tenants but the same were dismissed. In respect of the ground of re-construction, it was averred that the plan of construction, was not renewed within the period, provided for raising construction. The ground of subletting was challenged and it was stated that the same was not taken in the original rent application and moreover the question of subletting did not arise because the respondent No.1 never remained in possession of the premises. I was added that the appellant had obtained lease of the plots illegally.
9. During trial, the appellant filed his own affidavit and affidavit of Abdul Ghafar. Respondent No.2 filed his own affidavit and also affidavits of Alam Khan and Abdul Rehman. No evidence was led by the respondent No.l. Under the impugned judgment dated 1-8-1987 learned trial Court dismissed the rent application, after holding that the appellant had not been able to prove that the respondent No.1 was his tenant and that the respondent No.1 had sublet the premises to respondent No.2 and that the question of default in payment of rent did not arise when relationship of landlord and tenant had not been established between the appellant and the respondent No.1 and that no order can be passed against respondent No.2 who according to the appellant was a trespasser. Hence this appeal.
10. Mr. Nisar Ally, learned counsel for the appellant argued that evidence adduced by the appellant had established the fact that he was owner and landlord of the disputed premises and that the respondent No.1 was his tenant as defined by section 20) of the Sind Rented Premises Ordinance (hereinafter to be mentioned as the Ordinance). Learned counsel cited the case of Abdul Hamid v.
11. Abdul Rasheed 1981 SCM R 527 6n the point that bare statement of the appellant was sufficient to show that relationship of landlord and tenant existed between him and the -respondent No.1, against whom the rent application was initially riled. Learned counsel referred to the registered lease deed Exh. P/1 and argued that the same was challenged by the respondent No.2 in a Civil Suit No. 4612/81 which was dismissed on 1-8-1987. He conceded that an appeal against such dismissal was pending. Referring to section 55(6) (a) of the Transfer of Property Act, learned counsel for the appellant argued that the appellant as owner of the disputed premises was entitled to realise its rent. In this respect reference was made to the case of Sh. Manzoor Ahmed and others v. Mst. Lqbal Begum and others, 1989 SCM R 949. It was next argued that the respondent No.2 was admittedly in possession of the disputed premises and no plea was raised if rent for the disputed period was paid by the respondent No.1'and as such the point of default stood proved. Learned counsel criticized evidence of the, respondent No.2, and submitted that Alam Khan witness of respondent No.2 in his cross-examination had admitted that he had not signed his affidavit, while Abdul Rahman another witness had admitted in his cross-examination that he did not know contents of his affidavit and that he had signed the affidavit at the instance of Abdul Razaq his employer ~t whose shop he was working. Learned counsel for the appellant further argued that respondent No.2 cannot challenge in a rent case the lease existing in favour of the appellant. That the respondent No.2 had not produced any document to show that he was owner of the disputed premises. In Civil Suit No.4612/81, the respondent No.2 was said to have claimed the property bearing NoAK-14 13S- 10/Abut such property did not exist, as argued on behalf of the appellant. Evidence of the appellant was said to have been corroborated by evidence of his witness Abdul Ghafar. Learned counsel for the appellant referred to the PTI Exh. P/3 which supported the stand taken by the appellant. It was further argued that as per section 15(2)(iii)(a) of the Ordinance, mere handing over of possession of the demised premises by the tenant to some other person created ground for ejectment. In respect of the point of re-construction learned counsel referred to the plan Exh.31 and the approval Exh.30 and argued that such evidence by itself proved the ground mentioned under clause (vi) of subsection (2) of Section 15 of the Ordinance. Referring to section 5 of the Ordinance learned counsel for the appellant argued that the tenancy between the appellant and -the respondent No.1 was created before coming into force of the Ordinance.
12. Mr. A. Iqbal Quadri, learned counsel for respondent No.2 argued:--
(l) That the appeal was time-barred.
(2) That the case of the appellant was a case of no evidence, inasmuch as inadmissible evidence was brought on record by way of affidavits filed beyond the scope of Order 19, Rule 3, C.P.C.
13. (3)That there was no evidence establishing relationship of landlord and tenant between the appellant and the respondent No.i.
14. (4)That the rent application filed by the appellant was frivolous.
15. Dealing with the first point learned counsel for respondent No.2 argued that the impugned order was passed on 1-8-1987 while the appeal was filed on 12-9-1987. Learned counsel for the appellant replied that application for obtaining copy of the impugned judgment was moved on 2-8-1987 and requisite copy was supplied on 15-8-1989 and as such a period of 13 days is to be condoned and the appeal filed on 12-9-1987 was within time. Learned counsel for respondent No.2 referred Rule 224(2) of Sindh Civil Court Rules and argued the appellant had to supply the stamps within seven days of moving his application for copies and that since stamps were supplied on 13-8-1987 and not by 9-8-1997 hence his application for the copies was liable to be rejected and he was not entitled to claim condonation on the ground of late receipt of copy. In support learned counsel for respondent No.2 cited the case of Mst. Jamila Khatoon and another v. Mst.
16. Tajunnisa and another PLD 1984 SC 208 and unreported case of Mst. Hajiani Amina v. Asghar Ali (Ist Rent Appeal No.645 of 1983) decided by this Court on 10th December, 1984. After relying on said - authorities learned counsel for respondent N6.2 was of the view that the period of limitation started running in this case on 9-8-1987 viz. The date by which the stamps were to be supplied and as such the appeal could be filed by 8-9-1987 and since it was filed on 12-9-1987 hence it was time- barred and even section 5 of the Limitation Act did not apply to the appeal which was moved under Rent Laws. In support learned counsel for the respondent No.2 cited the cases of Abdul Ghaffar and others v. Mst. Mumtaz PLD 1992 SC 88 and Ali Muhammad and another v. Fazal Hussain and others 1983 SCM R 1239. It was also argued that a point of law can be raised at any stage. For this reliance was placed on the cases of Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153, Mr. Yahya Bakhtiar, Advocate v. The State through the Secretary, Ministry of Interior, PLD 1983 SC 291 and Noor Mohammad v. Abdul Hamid 1984 CLC 23.
17. In reply, learned counsel for the appellant argued that as held in the case of Muhammad Yameenullah Pervez Malik v. Syeda Habida Rizvi 1990 M LD 2356 the Sind Civil Court Rules did not apply to the rent cases and as such the case of Mst. Jamila Khatoon and another v. Mst. Tajunnisa and others PLD 1984 SC 208 was inapplicable to this case. Learned counsel for the appellant referred to the general practice in the copying agency where stamps were accepted only after the costs were estimated and not before that. He added that the costs were estimated on 3-9-1987 and there were Eid holidays on 5, 6 and 7 August 1987 and that deposit of stamps within seven days means within seven working days. As regards the point of limitation is concerned, Rule 234(2) of Sindh Civil Court Rules does not specify that if stamps are not supplied within seven days of moving an application for copies, the party cannot get excluded the period spent for obtaining copy of the concerned order, in computing the period of limitation. In the present case, the period of 13 days spent by the appellant in obtaining copy of the impugned order is to be excluded for the purpose of computing the period of limitation. In this view of the matter, the appeal riled on 12-9- 1987 was not time-barred. The objection about the appeal being time-barred stands overruled.
18. There can be no cavil with the observations made in the case of Abdul Hamid v. Abdul Rasheed PLD 1981 SC 527 that landlord' S statement acknowledging the occupant to be his tenant, is sufficient to establish tenancy in absence of any evidence to the contrary. In the instant case the very title of the Appellant in the premises in litigation is challenged. In the present case the appellant did not claim respondent No.2 who is in physical possession of the property in litigation, to be his tenant. In his affidavit appellant Faqir Mohammad claimed being owner of the property in litigation, on the basis of lease deed Exh. P/1 and on the basis of Forms PTI Exh.P/2, Exh.P/3 and Exh. P4 and other record viz. P/5 to P/29. Appellant added that respondent No.1 Khuda Bakhsh was his tenant in Room No.4 constructed on Plot No.3307 of amalgamated Plot Nos. 3314, 3314-A, 3307 and 3307-A viz. The property in litigation, since 1978 on rent of Rs 100 P.M. Appellant claimed to have issued rent receipts in respect of the rent received from the respondent No.l. However, no documentary proof was given to establish that the respondent No.1 had been paying rent to the appellant. Appellant did not claim if he had rented out Shop No.4 to the respondent No.1 under any written or oral tenancy. He did not claim if the respondent No.1 already occupied the Room No.4 when the premises in litigation were taken on lease under Exh. P/1. In his cross-examination appellant Faqir Mohammad stated that respondent No.1 Khuda Bux was previously there and he left in 1982. Appellant claimed to have known in end of 1982, that respondent No.1 had left the room in litigation and the respondent No.2 had occupied the same. Appellant admitted that there was no tenancy agreement between him. And the respondent No.l. Appellant claimed to have issued manuscript rent receipts to all his tenants but he (lid not mention this fact in the previous rent cases filed by him or in the present rent application. Appellant admitted that he was maintaining accounts of rent recovered by him, but such accounts were not produced. Lastly the appellant admitted in his cross that he did not remember if his affidavit was read over to him. This shows that the statement made by the appellant in his affidavit that the respondent No.1 was his tenant in Room No.4, was not conscious assertion made on oath to be covered by the case of Abdul Hamid PLD 1981 SCM R
527. Evidence of appellant's witness Abdul Gbaffar shows as if he was present as and when monthly rent was paid by the respondent No.1 to the appellant. Abdul Ghaffar claimed being tenant of the appellant in Room No.2 of same building from 1971 to 1981. He had been obtaining rent receipts from the appellant, as claimed. Yet not a single rent r9ceipt was produced by Abdul Ghaffar. He failed to' give the specific months, for the rent of which the appellant gave receipts to the respondent No.l. He failed to state if the appellant used to take signatures of his tenants on the counterfoils.
19. Moreover, the appellant had to establish that the respondent No.1 was his tenant in Room No.4 of the prop6rty in dispute. It is pertinent to note that in his original rent application the appellant did not mention, as to which room was in possession of respondent No.l. As his tenant. He mentioned respondent No.1 Khuda Bakhsh tobe occupying Room No.4 only in the amended rent application, where he was not supposed to add anything without permission of the Court, besides name of the respondent No.2 who was impleaded as a party. It was observed in the case of Muhammad Afsar Khan PLD 1986 Azad J&K 196, that OrderVI, R.17 of C.P.C. Dealing with applications for amendment of the pleadings, does not authorise any party to introduce the amendment in the pleadings without the permission of the Court, however genuine required amendment might be. In the instant case the appellant was not competent to add in his amended rent application the room number of the property inlitigation and the ground of subletting without permission of the trial Court.
20. The documentary evidence produced by the appellant requires to be discussed. The lease deed Exh.P/1 shows that the property in litigation was leased to the appellant by the K.M.C.- The lease was challenged by the respondent No. 2 in Civil Suit No. 4612 of 1981 which was dismissed on 1-8- 1987 by the 1st Senior Civil Judge, Karachi South, as per copy of the judgment filed in the appellate file. Appellant riled copy Exh.P/2 of Form PTI showing that he was owner of the property bearing Excise and Taxation No. AK-14-15 S-2. Part of said property bearing Excise & Taxation No. AK-14-15 S- 2/A was bifurcated and given by the appellant to his wife as per the copy Exh.P/4 of Form PTI while remaining part continued to stand in name of the appellant as per copy Exh.P/3 of Form PTI. Name of the respondent No.1 does . Not appear in either of the copies of Forms PTI, as occupant of any part of the premises. Moreover entries in the record of Excise and Taxati6n Department may have some value on the question of title, but they are wholly irrelevant to the enquiry whether ihe relationship of landlord and tenant existed between the parties, as held in the case of Haji Mohammad Ramzan v. Mian Jamil Shah PLD - 1967 Pesh. 380 which was followed in the case of Gul Dad Khan v. Rahim Shah, PLD 1978 Kar.
19. In the case of Saleh Muhammad 1984 CLC 916, the view taken was that before claiming to be the landlord, one has to prove that he is for the time being entitled to receive rent in respect of the premises in question, whether on his account or on behalf of or for the benefit of any other person. In the cited case the landlord had not produced any evidence, other than his word, to show that the occupants were his tenants and in the copy of PTI issued by; the Excise & Taxation Department names of the occupants were not shown as tenants and it was held that the occupants cannot be treated as tenants of the person claiming to be landlord. In the present case also the situation is more or less similar because name of the respondent No.1 does not appear to- be tenant in any of the documents produced by the appellant including the forms PTI.
21. It is important to mention that prior to this appellant Faqir Mohammad had filed four rent applications against different persons including (respondent No.2'Hazratullah) for their ejectment from different structures standing in a common plot on the ground of default in payment of rent, since April 1980. The opponents in said rent cases denied being tenants of the appellant and claimed being owners of the premises, from where they were sought to be evicted. The Rent Controller dismissed the rent applications after holding that relationship of landlord and tenant did not exist between the appellant and the opponents. Appellant filed First Rent Appeals Nos. 368 to 371 of 1986 in this Court challenging dismissal of his rent cases. Said appeals were dismissed by a learned Judge of this Court under a judgment reported in 1989 CLC 252. In said judgment the view taken was that mere claim of the appellant that he had acquired lease interest in respect of the property dispute, would not ipso facto create relationship of landlord and tenant between the appellant and the occupants of the disputed property.
22. In his affidavit respondent No.2 (Hazratullah) claimed that he was in possession of the. Premises in litigation for preceding 15 years in his own rights. That the construction over the premises in litigation was raised by him from his own funds. Respondent No.2 added that the appellant had changed his original claim of four rooms and had claimed only one room on Plot No. 3307 which was also falsely claimed. Respondent No.2 claimed to have filed suit No.4612/81 against the appellant for cancellation of his lease. Respondent No.2 stated that the respondent No.1 never remained tenant of the appellant and he was a dummy person. Respondent No.2 also filed affidavits of Alam Khan and Abdul Rahman.
23. Onus to prove the relationship of landlord and tenant between the parties was on the appellant, who has failed to discharge the same. Consequently the impugned order is maintained and this appeal is dismissed with no order as to costs.
24. AA./F-185/K