' This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, raises an interesting question with regard to the status of the respondents in relation to the disputed premises.
2. Appellant Mst. Shahzadi Begum is the owner of House No,C-117, on Plot No,482, Final No, 378, MAC- II, Mahmoodabad, Karachi. It is the case of the appellant that she had rented out this house to her real sister Mst Aqueela Begum sometime in the year 1972 at the rate of Rs,100 p.m., who paid rent to her for few months and then stopped making payment and was in arrears for a period of about 12 years when on 12-10-1987 an application under section 15 of the Sindh Rented Premises Ordinance, 1979, was filed seeking her eviction on the grounds of default in payment of rent and personal need.
3. Mst. Aqueela Begum, the respondent resisted her eviction by controverting the allegations based on facts. Her defence in main was that she had occupied the plot in her own rights by raising construction thereon, and it was only after the Government decided to regularise the Katchi Abadi that the appellant claimed possession in order to grab the property. She in fact wanted to dispossess her (respondent) forcibly, which prompted her to file a suit for declaration and injunction. In short the respondent disputed the relationship of landlord and tenant between the parties. During the pendency of the ejectment proceedings Mst. Aqueela Begum died and consequently her legal heirs, namely, Sulema Khan (husband), Kamran (son), Rizwan (son), and Farhan (son) were brought on record.
4. The parties went to trial on the following issues:-
(i) Whether there exists any relationship of landlord and tenant between the parties?
(ii) Whether opponent committed default in payment of rent?
(iii) Whether applicant requires the premises in question for her personal bona fide use?
(iv) What should the order be?
5. The appellant examined her son and attorney Muhammad Sohail (P.W.1), and then closed the side. To rebut this evidence the respondents examined Suleman (D.W.1), Rizwan (D.W.2), Muhammad Irfan (D.W.3), and Kamran (D.W.4).
6. On the assessm ent of evidence available on record the learned Rent Controller decided issue No,1 against the appellant and as a result thereof dismissed the application for ejectment filed against the respondents. This order dated 7-11-1990 is the subject-matter of the present appeal.
7. I have heard Mr. S.M. Afzal, learned counsel for the appellant and Mr. Jamil-ur-Rehman, learned counsel for the respondents. I have also gone through the record of this case carefully.
8. Muhammad Sohail (P.W.1) is the son and attorney of the appellant. He has testified that the disputed house was rented out to his aunt Mst Aqueela Begum, predecessor of the respondents at the rate of Rs,100 p.m. Who paid rent for few months to appellant and then stopped making payment. No documentary evidence was however, placed on record to prove that Mst. A Aqueela Begum was inducted as tenant. Reliance is placed upon photo-copy of a notice dated 14-10-1981 alleged to have been sent by Mr. Nawab Khan, Advocate, wherein the status of Mst Aqueela Begum as tenant of appellant was admitted. Admittedly this notice is unsigned and its genuineness is seriously disputed by the respondents. The appellant did not examine Mr. Nawab Khan, Advocate in support of the contents of this notice (Annexure/C) meaning thereby that it was a fictitious document. The appellant did not adduce even oral evidence to prove that Mst. Aqueela Begum, the predecessor of respondents was her tenant. This only fact that the appellant is the owner of B the disputed house will not ipso facto prove that Mst Aqueela Begum was her tenant. She could be a licensee, a trespasser or the owner of the house by way of adverse possession. Mr. Jamil-ur- Rehman, learned counsel for the respondents has referred me to a wealth of case law commencing from Messrs Mehran Shoes v. Muhammad Ismail and 3 others, reported in 1987 CLC 148, followed by Mst. Anis Bano and 3 others v. Mst. Rabia, reported in 1987 CLC 775, Beejal Mal v.
Punaji, reported in 1987 CLC 1134, and Haji Faqir Muhammad v. Hazratullah, reported in 1989 CLC
252. In the first cited case Ibadat Yar Khan, J. (as he then was) made the following observations:-- "Tenancy is a special relationship between the owner of the property and a tenant. This relationship between tenant and landlord is created either by agreement between the parties or by force of any statute. Surely it is not a case falling in the latter category and it is to be seen whether any agreement between the parties creating tenancy is proved in this case? In my opinion no such agreement has been proved and it still remains debatable whether the version of the landlord is correct or the version of the tenant is correct? This being a crucial and complicated question calling for a full investigation before a regular forum, perhaps in the form of a suit for specific performance or any other regular suit, the Rent Controller ought have withheld his hands and should have directed the parties to agitate the dispute before a regular Court. The mere word of the landlord is too flimsy and unreliable a ground to raise a presumption in favour of the landlord and brush aside the version of the tenant denying the tenancy.
9. Obviously, therefore, the important evidence to prove relationship of landlady and tenant is lacking in this case. It may be added that the appellant had herself denied this position in the written statement filed by her in Civil Suit No,4751 of 1981 (Mst. Aqueela Begum v. Mst. Shahzadi Begum) in the following words:- "Furthermore the premises under occupation of the plaintiff is neither let out to her by the defendant on rental basis nor on any other condition but purely on compassionate grounds in the year 1975."
' Thus the plea of the appellant about the status of Mst Aqueela Begum is falsified by her own written statement filed in Civil Suit No, 4751 of 1981 between the same parties. '
10. The evidence of Muhammad Sohail (P.W.1), the son and attorney of the appellant was, however, rejected by the learned Rent Controller mainly on the ground that the power of attorney (Exh.A/1) produced by him did not bear the signature of the appellant. The appellant had, however, placed on record a valid power of attorney, wherein she had confirmed and ratified the contents of (Exh.
A/1). The case of Ghulam Qadir and others v. Abdul Sattar and another, reported in PLD 1984 SC 12, is a guiding authority on this point. The irregularity, if any, stood cured by filing the power of attorney subsequently. Even otherwise Muhammad Sohail (P.W.1), being the son of the appellant and conversant with the facts could testify on behalf of his mother without filing of any power of attorney. If any authority is needed on this point the cases of Mst. Shaukat Sultana v. Mst Zohra Bi, reported in 1982 CLC 1761, and Muhammad Ishaq v. Mst Kubra Begum, reported in PLD 1988 Karachi 533, may be cited with advantage. It must also be remembered that in such proceedings one should not expect, a rigid observance of rules and any departure would not be material, unless a serious prejudice is caused.
11. At any rate the evidence of Muhammad Sohail (P.W.1), even if accepted on face value is not sufficient to prove the relationship of landlady and tenant between the parties. Since there exists no such relationship the application filed by the appellant under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking the eviction of the respondents was not maintainable and was rightly dismissed by the learned Rent Controller.
12. In the result the appeal fails and is dismissed with no costs.