This judgment shall dispose of the appeal'as well as C.M.A. No,607/91 and I shall first, take up the latter.
2. Together with the tiling of this appeal, the appellant had also filed C.M.A. No,759/90 which was an application under section 21 (2) of Sindh Rented Premises Ordinance, 1979, in which it was prayed that the operation of the impugned judgment of ejectment be stayed during the pendency of this appeal. This application was conditionally granted by this Court vide order dated 18-11-1990 and the condition was that the appellant should furnish security in the sum of Rs,27,300, being arrears of rent from April 1983 to November, 1990 at the rate of Rs,300 per month to the satisfaction of the Nazir of this Court before 10th January, 1991, and to deposit future monthly rent in this Court from December, 1990 onward and this future rent was to be deposited before the 10th of the following months. This condition having not been fulfilled by the appellant, the respondent moved C.M.A.
No,607/91 on 21-4-1991. This is an application under section 16 (2) of the Ordinance in which it was prayed that defence of the appellant should be struck off for his failure to deposit the rent in terms of the order dated 18-11-1990. It is an admitted position that compliance of the order dated 18-11- 1990 has not been made by the appellant who in his counter-affidavit to this application admitted that he had neither furnished the security nor deposited any future monthly rent till today. Now the claim of the learned counsel for the respondent is that order dated 18-11-1990 was passed under section 16 (1) of the Ordinance and therefore its non-compliance attracted section 16 (2) of the Ordinance under which his defence should be struck off forthwith. I am of the view that order A dated 18-11-1990 was not at all passed under section 16 (1) of the Ordinance. It was passed under section 21 (2) of the Ordinance by way of condition to the grant of stay of the operation of the impugned judgment. Its violation only meant that the conditional stay granted on 18-11-1990 stood vacated because of non-fulfilment of the condition on which it was granted. It was upto the respondent to have moved the learned Rent Controller for the execution of the impugned judgment. It was upto the respondent to have moved the learned Rent Controller for the execution of the impugned judgment immediately after the default on the part of the appellant became known to him. The security for arrears of rent was to be furnished before 10th of January 1991 and therefore, it was not furnished by-9th January, 1991, the respondent was within his rights to file execution application for the execution of the ejectment order passed in her favour because the stay of execution of the order stood vacated on the close of the day on 9th January 1991. That was all. The defence of the appellant cannot be strict off because neither the Rent Controller nor this Court passed any order under section 16 (1) of the Ordinance. As a matter of fact, order under section 16 (2) of the Ordinance could not have been passed for two reasons. First, that no application under section 16 (1) of the Ordinance was moved by the respondent. Second, the relationship of landlord and tenant being in dispute and subject-matter of this appeal, a direction under section 16 (1) of the Ordinance for the deposit of the arrears or for future rent could not be made until the existence of such relationship had been established on record. As such, C.M.A. No, 607/91 is without any merits and is dismissed.
3. The facts leading to the filing of this appeal are that respondent Mst. Zulakha had filed an ejectment application under section 15 of the Sindh Rented Premises Ordinance, 1979 in January 1985 and it was claimed by her that she was the owner of the premises bearing No,6165, Block No, 1725, Norani Gorund, Iqbal Road, Baldia Town, Karachi, which consisted of two rooms and other necessary amenities, that the premises were rented out to the appellant on 4-10-1980 and a written agreement was executed between the parties according to which the rent was Rs,300 per month. It was alleged that rent was paid upto March 1983 and since April 1983 rent was not paid.
Thus default in the payment of rent from April 1983 to January 1985 was the only ground on which eviction of the appellant was sought. It was also stated in the rent application that the respondent had earlier filed an ejectment case (RC No,4468/84) which was however dismissed for non- prosecution in January 1985. The default in pursuing the previous rent case was explained by stating that the respondent was proceeding on "Hajj" and her only son Usman was a seaman and remained mostly out of Karachi and that rent case was pursued by respondent's daughter-in-law who was made a special attorney for the said purpose. In his written statement the appellant denied the very existence of the relationship of landlord and tenant. He conceded that the respondent was owner of the premises but he claimed that she had sold these premises to him vide sale-deed dated 23-2-1970 and eversince he had been living in the premises in his own right as 'its owner. Non-payment of rent was thus an admitted fact and therefore the only issue that arose was as to whether the relationship of landlord and tenant existed between the parties. On the basis of the evidence adduced before him, learned Rent Controller came to the conclusion that such relationship existed between the parties and, since nonpayment of rent was an admitted fact, he granted the ejectment application vide judgment dated 20th May 1990 which is impugned in this appeal.
4. Learned counsel for the appellant denies that the alleged rent agreement dated 4-10-1980 is a genuine document. He points out that in the previous Rent Case No,4468/83 the tenancy was claimed to have come into existence in April 1982 through an oral agreement between the parties whereas in the second rent application, out of which this appeal arises, the tenancy is said to have commenced on 4-10-1980, and this time a written rent agreement of this date is produced. It was also pointed that AW-4 Muhammad Ibrahim Baloch stated in para. 2 of his affidavit that respondent Mst. Zulakha had purchased this house from one Hamid Ali on 17-10-1990 but in her cross-examination she stated that Haji Muhammad Usman had purchased a plot from Hamid All in 1980.
5. I have gone through the evidence on record through the help of learned counsel for the parties and it appears to me that the respondent has not sufficiently established that the appellant was occupying the house in dispute as her tenant. Copy of ejectment application in Rent Case No,4468/83 is available on record and it is clearly stated in para. 2 thereof that the tenancy had commenced in the month of April 1982 and that the appellant paid rent exactly for eleven months and upto March 1983. There can therefore be no doubt that the respondent was quite sure as to the date of commecement of tenancy and any doubt in this respect is removed when it was stated that rent was paid exactly for eleven months and upto March 1983. Since there is no mention of any rent agreement in the previous rent application, and in fact none was filed or relied upon with the previous rent application, it clearly follows that the case of the respondent at that stage was that the tenancy was through an oral agreement. However, this position has totally changed when the second rent application was filed on 23-1-1985 because in this rent application the period of commencement of tenancy goes back by two years and also the tenancy is now said to have been created through a written rent agreement dated 4-10-1980. This contradiction as regards the very inception of tenancy could not be satisfactorily explained, by learned counsel for the respondent. I do not find any force in the arguments of the learned counsel for the respondent that Mst. Razia, the daughter-in-law of the respondent who was made special attorney forfiling the previous rent case, was either not properly briefed with date of commencement of tenancy or else she did not properly communicate the correct factual position to the learned counsel who drafted the previous rent application. This makes the rent agreement dated 4-10-1980 as highly doubtful.
Learned Rent Controller compared the signatures of the appellant on this rent agreement with his admitted signatures on the written statement and came to the conclusion that "they appeared to have been executed by one and the same person and this was evident even to a naked eye." I have also compared these signatures but I cannot agree with the learned Rent Controller as to his conclusion in this regard. There does appear some dissimilarity between the two signatures and in view of the contradictory stand taken by the respondent in the two ejectment applications filed by her, further doubts are created as to the genuineness of the rent agreement. A.W.1 Haji Usman, the son and attorney of the respondent, the alleged landlady, admitted that he had filed the previous rent case but denied that in that rent case tenancy was said to have commenced in April 1982. He even denied that no reference, to any rent agreement was made in the previous rent case. Both these denials are factually incorrect since a perusal of the previous rent application (No,4468/83) proves otherwise. The respondent had examined three witnesses in support of her claim that the appellant had been inducted into premises as a tenant. The first is A.W.2 Mst. Jamila Begum. She stated that she was next-door neighbour of the respondent, knew the respondent for the last 20 years and that the appellant was the tenant and had not paid rent since April, 1983. The second witness is A.W.3 Faqeei Muhammad according to whom the respondent had purchased these premises in October 1970 and that he himself had lived in them as her tenant from July 1975 to June 1978 and there was written rent agreement between him and the respondent. No such rent agreement, allegedly executed by. A.W.3 Faqeer Muhammad, was produced by the respondent. It is surprising that whereas in para. 1 of his affidavit he gives the number of house, the stated in his cross-examination that he did not know the number and had forgotten it because he was illiterate.
If he could not remember the number of house because he was illiterate, it is not clear how he could give the number in the affidavit-in-evidence. The last witness examined by the respondent is A.W.4 Muhammad Ibrahim Baloch. It is interesting to note that whereas in his affidavit-in-evidence he only stated that he knew that the appellant was a tenant in the premises since 1980, in his cross-examination he also claimed to be the scribe of the rent agreement dated 4-10-1980 whereas the rent agreement (Exh.A/3) does not at all bear the signatures of Muhammad Ibrahim Baloch as its scribe or even in any other capacity. He stated that the appellant used to pay the rent (to the respondent) but he also stated that he did not know what was the rent. It is thus evident that both Faqeer Muhammad and Muhammad Ibrahim Baloch cannot be trusted as their evidence has been shaken in their cross-examination. This leaves only Mst. Jamila Begum and although her evidence is not shaken in cross-examination but in view of the contradictory nature of the stand taken by the respondent in the two rent cases initiated by her against the appellant, the existence of relationship of landlord and tenant 'cannot be decided on the basis of deposition of Mst. Jamila Begum. I have also gone through the evidence brought on record by the appellant. It consists of the evidence of Anwar Hussain, Amir Malik Khan, Zameen Khan and the appellant has (sic) house or his identity card, etc. And therefore a presumption must be drawn against him that he had never lived in the house between 1970 and 1982. I am of the view that the onus to prove the existence of relationship of landlady and tenant lay exclusively upon the respondent and therefore no presumption in this respect can be drawn by the failure of the appellant to place on record such evidence. As such the findings of learned Rent Controller cannot be sustained. Learned Rent Controller refers to an agreement dated 17-11-1970 but no such agreement or its copy is available on the record. It was therefore not proper for the learned Rent Controller to rely on this agreement or to mention it in his judgment. Learned Rent Controller also makes a misstatement of fact when he states that Muhammad BIM was a witness and he had fully supported the contents of the rent application. As a matter of fact, Muhammad Bux was not a witness in the case and therefore question does not arise of his supporting or not supporting the rent application.
6. In short, I am of the view that the respondent failed to discharge the onus of the issue and to prove that she was landlady of the appellant. The rent agreement and the evidence of her witnesses are unreliable and it is not, possible to rely on either of them.
7. It is not necessary to determine as to whether the respondent had sold the house in question to the appellant vide sate agreement (or sale-deed) dated 23-2-1970. Civil litigation is already pending between the parties and 1 am told that a civil suit filed by the appellant seeking a declaration of his title in respect of the disputed house on the basis of the document dated 23-2- 1970 was dismissed by the learned Sr. Civil Judge/Rent Controller on the same day when the rent application of the respondent was allowed and the appeal of appellant is pending, in the District Court. It is for the Appellate District Court to determine the bona fides or genuineness of the agreement of sale or sale deed dated 23-2-1970. Any determination in that respect is beyond the scope of this appeal. It is made clear that the learned Appellate Court, while hearing the appeal in the civil suit, shall not be influenced by the findings of this Court in this appeal which is strictly limited to the determination of the existence or otherwise of the relationship of landlord and tenant between the parties. It is quite possible that the respondent may not have sold the house to the appellant and the alleged sale-deed dated 23-2-1970 may be forged and the appellant may be living in the premises in any other capacity except that of a tenant.
8. For the above-noted reasons I set aside the impugned judgment and accept this appeal with the result that the ejectment application filed by the C respondent stands dismissed. Under the circumstances of the case the parties are left to bear their own costs.