1. ' By this appeal the judgment of the learned Ist Senior Civil Judge/Rent Controller, Karachi (South) passed in Rent Case No, 1182/89 has been challenged.
2. ' Briefly the facts are that the present respondent had filed the said rent case against the present appellant. Her case is that she had purchased an old building from previous landlady, namely, Fatima Bai at Preedy Street, Saddar, Karachi and raised construction of a shopping centre thereon known as "Hashmi Centre" which construction was completed in the year 1984; and that the present opponent was inducted in one room known as Shop No,1/A on the ground floor, one room above it and one room more adjoining to it on the first floor of her said new building on its Western side at the rate of Rs,1,200 per month. The said rent case was filed on the grounds of default in payment of rent alleged to have been committed by the opponent from 1-8-1989 to 31-7-1989.
3. ' The opponent filed his written statement wherein he denied the Ownership of the applicant over the said premises and thus the very relationship of landlady and tenant stood denied by him. There were number of other pleas raised in the written statement mainly that the present opponent was the tenant of Mst. Fatima Bai, the original landlady; and that he still continued -to be her tenant in her portion of the plot on part of which this Hashmi Centre was constructed. He also contended that he has been depositing the rent in Court in the name of Mst. Fatima Bai.
4. ' On these pleadings of the parties, the learned Rent Controller was pleased to settled the following issues:
(i) Whether the applicant is the owner/landlady of the rented premises?
(ii) Whether the opponent committed default as alleged?
(iii) What would the order be?
5. ' The learned Rent Controller answering the first two issues in favour of the landlady was pleased to allow the ejectment application directing the present appellant to vacate the said premises within 60 days. Being aggrieved the present appellant has preferred this appeal.
6. ' I have heard Mr. Hamza I. Ali, the learned counsel for the appellant and Mr. Ghulam All Khokhar the learned counsel for the respondent.
7. ' Mr. Hamza I. Ali, Advocate at the very outset has submitted that in the instant case the burden to prove the existence of relationship of landlady and tenant lay heavily on the landlady; and that except for the only witness examined by her, who is her husband and attorney, no other independent corroborating evidence has been brought on record. He has submitted that mere occupation by a person in certain premises would not create the relationship of landlord and tenant. Reliance is placed on the case of Fakir Muhammad v. Hazratullah (1989 CLC 252).
8. ' Repelling the above contentions, Mr. Ghulam Ali Khokhar, the learned counsel for the respondent has submitted that there is a statement of respondent's witness on oath by way of affidavit and he has also produced two rent receipts (photostat copies of counterfoils) to show that the opponent had been paying the rent and, therefore, it should be presumed that the relationship was created.
9. However, neither the book of counterfoils has been produced nor it has been shown that these counterfoils do carry any indication that such receipts were delivered to the tenant.
10. ' Mr. Hamza I. Ali, the learned . Counsel for the appellant has then submitted that in this case the opponent has been shut out from bringing any evidence on the record inasmuch as his affidavit- in-evidence filed by him on 22-5-1991 has been ruled out and excluded from evidence by the Rent Controller vide orders passed on 22-2-1992 and his side has also been closed. The learned counsel has referred to the case diary of the original rent case. He has further submitted that after filing of this affidavit-in-evidence on 22-5-1991, the opponent filed a civil suit in the High Court being Suit No,651 of 1991; and that in this suit, this Court granted interim stay on 8-6-1991 restraining further proceedings in the rent case and, therefore, rent case could not proceed and the present opponent did not submit himself for cross-examination, This stay was operative till it was vacated on 29-1-1992. From the case diary of the lower Court, it appears that such intimation was given to the trial Court on 17-2-1992 when the case was fixed. The observations made by the learned Rent Controller on 17-2-1992 to the effect that "the case is ripen up for cross-examination of the opponent on his affidavit since about 9 months last" is not called for in the abovementioned circumstances of the case as the passage of the period of nine months was not for any act or omission of the opponent himself but for the reasons that the proceedings had been stayed under the orders of the High Court. However, on 17-2-1992 the case was adjourned to 22-2-1992 on which date the side of the opponent was closed and his affidavitin-evidence was ordered to be ruled out.
11. Mr. Hamza I. Ali, the learned counsel for the appellant has submitted that the said order of the Rent Controller can hardly be justified as due to stay of proceedings ordered by the High Court, the opponent was under the impression that he would receive an intimation from the Court if such stay order is vacated or the case was set for further proceedings. This would not in a normal course be a ground available to a defaulting party specially when the case was being adjourned from time to time and dates were being given by the Rent Controller. However, in all fairness, I would allow one more chance to the opponent to be subjected to cross-examination on the affidavit-in-evidence filed by him on 22-5-1991. Accordingly, I allow this appeal, set aside the impugned order of the Rent Controller and remand the case to the lower Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.