1. Appellant Faqir Mohammad challenged dismissal of his Rent Case No.1477 of 1985 ordered by the Ist Senior Civil Judge and Rent Controller Karachi South, under his order dated 1-8-1987.
2. Initially the rent application was filed against respondent No.1 Abdul Razzak for his eviction from a room of the property mentioned in para 1 of the rent application, on the grounds of non-payment of rent and reconstruction. During pendency of the rent application respondent No.2 Hazratullah was joined as a party at his request. Respondent No.2 claimed being owner and occupier of the premises in litigation. In his amended rent application, the appellant added the ground of subletting against respondent No.1 and sought eviction of both the respondents.
3. Case of the appellant as per the original rent application was, respondent No.l was his tenant in a room of the property in litigation monthly rent of Rs.50,0n P.m. It was alleged that respondent No.] had not I rent since April 1980. In the arnended rent application the appellant reilcra that the respondent No. I was his tenant on monthly rent of Rs.50.00 and ad that it was Room No. 11. Of the property mentioned in para 1 of the r application, which was on rent with respondent No.l, who was alleged to h; sublet the same to respondent No.2 without permission of the appellant.The appellant sought eviction of both the respondents in his amended application.
4. The respondent No.l did not contest. The rent case was, howevi contested by the respondent No.2, who in his written statement objected to tl additional material having been incorporated in the amended rent applicatio Case of the respondent No.2 was that he was owner and exclusive occupant t Rooms Nos. 4, 10, 11 of the property mentioned in para 1 of the rer application, for preceding 15 years. It was alleged that the appellant had file frivolous case against respondent No. l who was not his tenant and who was dummy person and as such the rent application was not maintainable. Claim ofthe appellant to be lawful owner of the premises in litigation was denied. It was alleged that the appellant had obtained (case of the plots in litigation illegally and by misrepresentation of facts, from the K.M.C. Who owned the same. Respomicnt No.2 claimed being entitled to lease of the same. His suit for cancellation of the (case in favour of the appellant is pending trial in a Civil Court, as averred. Another Rent Case No. 1466 of 1985 (Old No.4177 of 1981) filed by the appellant against the respondent No.2, where the relationship of landlord and tenant was denied wits said to have been dismissed with other cases of similar nature. In respect of the ground of reconstruction, respondent No.2 stated that the plan for rcconstruclion wits got sanctioned with ullcrior motive, by misrepresentation of facts. The ground of subletting was challenged, on the ground, that it was not taken at the initial stage of moving the rent application and that the respondent No.1 never remained in possession of the room in question.
5. After assessing cvidencc of the parties, learned Rent Controller under the impugned ordc r dismissed the rent application with no order as to costs.Ficncc this appeal.
6. Mr. Nisar Ally, learned counsel for the appellant argued that the rent case filcd by the appellant was not contested by the respondent No.] and that sufficient cvidcncc has been brought on record by the appellant for seeking order of ejectment against the respondents. Learned counsel criticized evidence of the other side. According to him Alam Khan, witness of respondent No.2 admitted in his cross-examination that he could not sign his affidavit while Munshi Abdul Rahman did not know the contents of his affidavit as per his own admission. Abdul Rehman was said to have signed his affidavit at the at the instance of his employer.It was further argued on behalf of the appellant, that ]case of plot of disputed property in favour of the appcllant can kchallengcd only in a Civil Court and not before it Rent Controller and that Iherespondcnt No.2 had not produced a single document to support his claim of teeing owncr of the disputed property. Learned counsel for the apprllanl nextargued that assertion of the appellant about the respondent No.] being hip tenant, was Aipporlcd by evidcncc of Abdul C;haffar and that even solitary statement, on the point of rclationship of landlord and tenant, was sufficient to prove such relationship. Reliance was placed on the case of Abdul Hamccd v. Abdul Rashced 1981 SCNI R 527. The (case in favour of the appellant was said to have been unsuccessfully challenged in a civil suit whcrc judgment was given against the respondent No.2 but said judgment was under challenge in appeal. x Relying on Section 55 of the Transfer of Property Act, learned counsel for the appellant argued that the landlord is entitled to real" zc rent of his premises. Reliance was placed on the case of Sh. Manzoor Ahmed and others v.
7. Mst. Iqbal Bcgum and others (1989 SCMR 9.19). It was further argued that the respondent No.2 had not sought permission of the appellant for occupying the demised premises, and that mere handing over of possession by Ihc respondent 'No.1 to the respondent No.2 entitled the appellant to obtain order of ejectment. In respect of the objection about the appeal being time-barred, it was argued that the appellant had applied for copy on 2-h-1'187 and he got the mpyon 15-8-1987 and its such the appeal filed on 12-9-1987 was within time.
8. Mr. A. Iqbal Quadri, learned counsel for the respondent No.2 assailet' the appeal on legal grounds and on merits. Referring to the provision contained in Order 19, Rule 3. C.P.C., learned counsel was of the view that th evidence adduced in the case through the affidavits was not admissible in vice of the observations made in the case of Habib Bux v. Zahoorul Hassan (198, CLC 1119). It was next argued that the rent application was frivolous i( absence of the evidence about the relationship of landlord and tenant hctwcc; the parties. Learned counsel for the respondent No.2 challenged the appco tiled on 12-9-1987 to he time-barred. He conceded that the appellant had applied for copy of the impugned order on 2-8-1987 but contended that the appellant had supplied the stamps on 13-8-1987 and not within seven days o required by Rule 324(2) oh Sindh Civil Court Rules, and hence the perio, spent in obtaining copy of the impugned order, cannot be taken int~ mnsidcration for the purpose of computing the period of limitation durin, hich the appeal was to be filed. For this view reliance was placed on the cases of 81st. Jamila Khatoon and another v. Nlsl. Tajunnisa and another PLD 1994 SC 2118 and Mst. Ha,jiani Am ina v. Asghar All (FRA No. (FRA no 645 of 83, decided on 10-12-1984). On the authority of said cases, it was contended that in the instant case the period of limitation started running against the appellant from 9-8-1987 viz. The date by which the Stamps were to be supplied and hence th( appeal could be filed by 8-9-1987 and it was time-barred on 12- 9-1987. It w.j added that delay in filing the appeal cannot he condoned by Section 5 of th Limitation Act because said Section does not apply to appeals filed under rent laws. Reliance was placed on cases of Abdul Ghaffar and others' v. N' Mumtaz (PLD 1982 S.C. 88) and Ali Muhammad and another v. Fa/al Huss and others (1983 SCM R 1239).
9. On merits learned counsel for the respondent No.2 argued that in t rent application filed on 17-9- 1981 against respondent No.l, the premises fro where eviction was sought, were not mentioned.
10. Learned counsel to exception to the material added in the amended rent application and cited t case of Muhammad Afsar Khan v. Muhammad Rashid and others'(PLD 19 Azad J & K 196). It was further argued that the documents produced by the appellant were bearing numbers of Excise and Taxation Department witho showing that they pertained to the property in litigation and that name of tl respondent No.l did not figure in the PT-I as occupant. Ft was next argued th relationship of landlord and tenant between the appellant and the responde No.l had not been established by the evidence~on record. Reliance was place on the case of Saleh Mohammad v. Mst. Halima and others (1984 CLC 916 Learned counsel for the respondent No.2 pointed out the contradictions in th evidence about the possession of Room No.2. He further argued that paras.: 6 and 10 of the affidavit of respondent No.2. Hazratullah were not challenge in cross-examination. It was next argued that mere ownership of the premise did not make the owner, landlord of the person, in possession.
11. Learned counse for the respondent No.2 also cited the cases of:--
(i) Hakim Muhamrnad Buta and another v. Habib Ahmed and others PLD 1985 SC 153.
(ii) Noor Muhammad v. Abdul Hamid 1984 CLC 23.
(iii) Yahya Bukhtiar v. State PLD 1983 SC 291.
12. The impugned judgment was pronounced on 1-8-1987 and on 2-8-1987 appellant applied for copy of the same. The copy was deli . Red to him on 15-8-1987 while the stamps were supplied by him on 13-8-1987. .
13. Learned counsel for respondent No.2 cited the case of Mst. -amila Khatoon and another v. Mst.
14. Tajunnisa and others PLD 1984 SC 208 where reference was made to Rules 323(1), 324(2), 329 and 331 of Sindh Civil Court Rules, it was held that once the estimated amount of fee is communicated to the applicant under Rule 323(1), he is required to deposit amount as well as the requisite stamps within seven days from the date of such communication, otherwise his application is liable to be rejected. It was also held that communication under Rule 323(1) apparently has nothing to do with the supply of stamps, but only fixes the terminus a quo for the commencement of the seven days period, for the deposit of the copying fees and the stamp. It was also held that Rule 324(2) has placed obligation upon the applicant to deposit the requisite stamps along with the fees or otherwise, within seven days, on being communicated the amount of copies fee. If the applicant fails to deposit stamps without any sufficient cause he was clearly to blame and the time tin obtaining copy of the impugned order, cannot be held to be time mite for obtaining copies, for purposes of section 12(2) of Limitation Act. The instant case there is nothing on record to show, as to, on what date munication under Rule 323(1) of Sindh Civil Court Rules was made to the tppellant for supplying estimated amount of fee and stamps. Hence the 4plicant cannot be penalized for non-supply of amount of fee and costs within A lafutory 1>oiod of seven days. Consequently the period from 2-8- 1987 to W987 is to be treated as the "period requisite for obtaining copies" for the Se of computing the period of limitation in terms of section 12(2) of the limitation Act. No doubt the question of limitation can be raised at any stage sd as such there can be no cavil with the observations made in the case of Hakim Mohammad Buta and another PLD 1985 SC 153 that the law does not leave the matter of limitation to the pleadings of the parties but it imposes a htyupon the Court itself to consider it and that the limitation being a matter istatute, it cannot be waived and even if waived, it can be taken up by the prtywaiving it and by the Courts themselves. la the same way there cannot be quarrel with the observations made in the sasses of Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88 and All Mohammad and another v. Fazal Hussain and others 19133 SCMR 1239 that since the period of limitation for filing the appeal under Sindh Rented Premise Ordinance was different from the period prescribed under Article ISO of the Limitation Act, Section 3 of the said Act would apply to such Isituati')n, subject to the exclusions contained in section 29(2) of the said Act and that in such a case Section 5 of said Act stands excluded by virtue of Suction 2')(2). One may not dimtgrcc with the proposition that a point of law can be raised at any stage as was raised in the case of Yahaya Bakhtiar PLD 1%3 SC 291 and that the pica of limitation can be allowed to be raised at the r4ional stage if on admitted facts a case of limitation is made out, as per the tievtaken in the case of Noor Mohammad v. Abdul Hamid 1984 CLC 23. The uses mentioned above have no practical application to the instant case, where Ikeappeal filed on 12-9-1987 was within the time fixed by the Rent Ordinance, dlhe time requisite for obtaining copy of the impugned order viz. 2-8-'1987 to IW987 is excluded while computing the period of limitation, by virtue of B section 12 of the Limitation Act. It was observed in the case of Mst.
15. Jamila Batoon and another PLD 1984 SC 208 that Section 12 of the Limitation Act confers a substantive right upon the appellant to claim time as excluded and no discretion vests in the Court under Section 12 of the Limitation Act. 1, Ikerefore, hold that this appeal is within time.
16. A landlord's statement acknowledging occupant to be his tenant is sufficient to establish tenancy in absence of any evidence to the contrary as Ic keld in the case of Abdul Hamid v. Abdul Rashid (1981 SCM R 527). In th instant case appellant, Haji Faqir Muhammad in his affidavit stated on oat that respondent No.1 Abdul Raizak was his tcnant in Room No.11 of the property in litigation since 1976 and that he hadissued to him rent receipts as and when the rent was paid .He also stated that the respondent No1 paid rent on several occasions in presence of Abdul Ghaloor and that since April 1160, the rent was not paid. There is no documentary proof in support of this evidence. Appellant did not state ih he had rented out Room No.l to the respondent No.l under written or oral tenancy. He did not state if' the respondent No.l already occulned Room No. l I when the premises in litigation were taken on lease by the appellant. In his cross- examination the appellant stated that he came to know it the end of 1982 that Khuda Bux had left the room in litigation and the same was occupied by respondent No.2. In his previous rent appilication the apellant did not state if he had issued any written rent receipts to the tenant. He did not state so even in the present rent application. The appellant claimed that he was maintaining accounts of rent recovered by him, but such account. Were not produced. Lastly, the appellant admitted in his cross-examination that he did not remember if his affidavit wits read over tohim. This shows that the slatcmcnt made by the appellant in his affidavit that Ihc respondent wits his tenant in Room No. 11, wits not conscious asscrtion.Made .m oath to be coycrcd by the case of Abdul Hamid 1981 SUN1R 527.Evidence of appellant's witness -Abdul Ghaffar shows as if he was present as:and when monthly rent wa, paid by the respondent No.l to the appellant Abdul Ghaffar claimed claimed being, tenant of the appellant in Room No.2 of same building from 1977 to 1981. He had been obtaining rent receipt from the.Appellant its claimed by him. Yet not a single rent rcccipt was produced by him. He failed to give the specific months for the rent of which the appellant gave rcccipts to the respondent No.l. He failed to state if the appellant usedto take signatures of his tenates on the counterfoil.
17. Moreover tile appellant had to establish that the respondent No.l was his tenant in Room No.] I of the properly in dispute. It is pcrtincnt to note that in his original rent application the appellant did not mention, as to, which room was in possession of rcspondcnt No.l as his tenant. He mentioned respondent No. l Abdul Razatl to be occupying Room No. l l only in the amended rent application, whcrc he was not supposed to add anything without permission of the Court besides name of the respondent No.2 who was impleaded as a parts, It was observed in the case of Muhammad Afsar Khan PLD 1986 AJ&K,196 that Order Vl, R.17 of C.P.C'. Dealing with applications for amendment of the pleadings does not authorise any party to introduce the amendment, in Ihc pleadings without the pcrmissiom of the Court, however genuine required amendment might be. In the instant case the appellant was not competent to add in his amcndcd rent application the room number of (h.,: properly in litigation and the ground of subletting, without permission of the trial Court.
18. The documentary evidence prtr)duccd by the appellant requires to be discussed. The lease decd Exh.P/1 shows that the property in litigation was ]cased to the appellant by the K.M.C'. The (case was challenged by the respondent No.2 in Civil Suit No.4;12 of 1981 which was dismissed on 1-&198'1 by the 1st Senior Civil Judge, Karachi South, as per copy of the judgment filed in the appellate file.
19. Appellant filed copy Exh.P/2 of Form PTI showing that he was owner of the property bearing Excise and Taxation NoAK-14-15 S-2. Part of said property bearing Excise & Taxation NoAK-14-15 S-2/A was bifurcated and given by the appellant to his wife as per the copy Exh.P/3 of Form PTI while remaining part continued to stand in name of the appellant as per copy Exh.P/4 of Form PfI. Name of the respondent No.l 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 Taxation Department may have some value on the question of title, but they are wholly irrelevant to the enquiry whether the relationship of landlord and tenant existed between the parties, as held in the case of Haji Mohammad Ramzan v. Mian Jamil Shah I'M 1907 I'esh, 380 N6ich 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 i, for the time being entitled to receive rent in respect of the prcmi,cs in question whciher 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 Form issued by the Excise & Taxation Department, names of the occupants were not shown as tenant,, and it was held 11iirt the r)ccupat3t.., cannot f?c lrC,rted as ICnarll", ul thc_ person, claiming to be landlord. In the present case also, the situation is more or lc., similar because name of the respondent No.l does not appear to be tenant ire any of the documents produced by the appellant, including the forms PTI.
20. It is important to mention that prior to this appellant Faqir Mohammad had filed four rent applications ;rgain,t different persons including (respondent No.2 Hazratullah) for their ejectment from different structures standing in a cornrnon plot, on the ground of default is p;r~mentof rent, since April. 1980. The opponents in said rent cases denied being tenants of the appelL1ttt and claimed being owners of the premises, from where they were Wright te) be evicted. The Rent Controller dismissed the rent applications after holdinv 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 1980 in this Court, challenging dismissal of his rent cases. Said appeals were dismissed h~ ;r learned Judge of thi.~ Court, under a judgment reported in 198(1 ('I_(' 252. In said judgment the view taken was that mere claim of the aPPcllant that he had acquired lease interest in respect of the property in disputr,, would not ipso facto create relationship of landlord and tenant bet'ccn the appellant and the occupants of the disputed property.
21. In his affidavit respondent No.2 (Hazratullah) claimed that he was in pos~c~sion of tHC I>rcmises in litigation for preceding 15 years in his own rights. That tile construction over the premises in litigation was raised by him from hIS own hands_ Respondent Not added that the appellant had changed his original claim of three rooms and had claimed only one room on Plot No.3307/B A,hich was also falsely claimed. Respondent No.2 claimed to have filed Suit No.461/81 against the appellant for cancellation of his lease. Respondent NQ stated that the respondent No.l never remained tenant of the appellant and he was a dummy person. Respondent No.? Also fled affidavit-. Of Alam Khan and Abdul Rehman.
22. Onus to prove the relationship of landlord and tenant between the parties, wason the appellant, who has failed to discharge the same. Consequently the impugned order is maintained and this appeal is dismissedwith no order as to costs.