This appeal is directed against the judgment dated 30-9-1987 whereby the defence of appellant Ahmed Saeed was struck off under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The facts are as follows:---
2. Respondent Maqsooda begum had filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in July, 1974. As per the averments made in the application, she was the landlady/owner of the premises bearing No. 128/C (KMC NO. A-1, 6S--121/(WA)
Willayatabad No. 2, Karachi and appellant No. 1 Ahmed Saeed was her tenant at the agreed monthly rent of Rs. 160 and that he had unauthorisedly made structural alteration in the premises and thereby materially impaired the value of the property and had sublet part of the premises to appellant No. 2, Abdul Maubood (who was impleaded as respondent No. 2 in the rent case) and that appellant No. 1 Ahmed Saeed had committed default in the payment of rent for the months of May and June, 1974 . (Respondent Mst. Maqsooda Begum, however, failed to disclose that the two appellants are-real brothers and they are also real brothers of her husband Abdul Rasheed). It was not disclosed in the rent application as to when the respondent has inducted appellant No. 1 into the premises as a tenant. In their joint written statement the appellants denied the relationship of landlord and tenant and they also denied the title of the respondent. Appellant No. 1 claimed that he was the owner of the premises and he had purchased they same from one Muhammad Khan in the year 1964. They had further stated that Muhammad Khan was an unauthorised occupant of the plot, which was Government property, and had erected a but on it which they had purchased from said Muhammad Khan in 1964 and thereafter they had built a Pacca house on the plot. They also stated that the respondent was the wife of their elder brother and due to some family dispute was harassing them at the instance of their elder brother. They also stated that Muhammad Khan had later on colluded with the respondent and had written an Iqrarnama in her favour, stating that he was selling the house to her and handing over possession to her and after obtaining such Iqrarnama from the said Muhammad Khan, the respondent had applied to the Excise and Taxation Department for entering her name in P.T.I register but the Excise and Taxation Department only recorded the statement of Muhammad Khan, refused to enter the name of the respondent in their record as the owner and advised her to seek the title to the property from the competent Court but instead of her, appellant No. 1 Ahmed Saeed filed declaratory suit (Suit No. 1610/74) which was rejected under Order 7, Rule 11, C.P.C. On 26-10-1974. (Subsequent to the filing of the written statement by the appellants, appellant No. l instituted another declaratory suit seeking a declaration of title in respect of the demised house and, on the date of hearing of this appeal, it was stated to be at the stage of final arguments before the learned Senior Civil Judge).
3. In view of the denial of the relationship of landlord and tenant, learned Rent Controller framed an issue as to the existence of such relationship and after recording some evidence on behalf of both the parties, vide order dated 14-4-1976 decided the issue in the affirmative and held that the relationship of landlord and tenant existed between the parties. Thereafter, order under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, for the deposit of the tentative rent, was passed on 19-5-1976 directing the appellants to deposit rent at the rate of Rs. 160 per month from 1-7-1974 to 30-4-1976 (for a period of 22 months) amounting to Rs. 3,520 on or before 15th July, 1976. This order having not been complied with by the appellants, their defence was struck off vide order dated 30-9-1987 which is now impugned in this appeal alongwith the order dated 14-4-1976 under which learned Rent Controller had held that the relationship of landlord and tenant existed between the parties and order dated 19-5-1976 whereby the appellants were directed to tentatively deposit the rent of the premises.
4. Learned counsel of the parties have been heard and record perused.
5. At the very commencement of the hearing of the appeal an objection was raised by the learned counsel of the respondent that at this stage the appellants could not question the order, dated 14- 4-1976 (whereby the relationship of landlord and tenant was held to exist between the parties) and the order dated 19-5-1976 (whereby the appellants were directed to deposit the tentative rent in the Court) as these were interlocutory orders and could not be appealed against and that the proper course for the appellants was to abide by the order dated 19-5-1976 and challenge all these orders if, eventually, an order of eviction was passed against them on merits. After hearing both the learned counsel on this point I am of the view that there is no merit in this objection. Order dated 30-9-1987, whereby the defence of the appellants was struck off, is final order and is therefore appealable under section 21 of the present Sindh Rented Premises Ordinance and since it emanates from the other two orders dated 14-4-1976 and 19-5-1976, these two orders can also be challenged in these proceedings. In this view I get support from the judgment in the case of Naimuddin v. Ziauddin reported as PLD 1984 Kar. 441. I shall now proceed to look into the validity of the 3 orders passed by the learned Rent Controller and shall have to revert to the pleadings and the evidence of the parties.
6. It may be noted that a perusal of the eviction application gives an impression that the respondent was the owner of the premises for a long time when she inducted appellant No. 1 as a tenant on a monthly rent of Rs.
160. The words "agreed monthly rent of Rs. 160" used in para. 2 of the ejectment application leave no doubt as to this position. In evidence of the respondent herself, however, this picture is totally shattered. Appearing in the Court as her own witness as A. W.1, she stated that she had purchased this house from Muhammad Khan through Agreement Exh. 6 and at that time the appellants were living in the house as tenants and Muhammad Khan had informed her that rent was Rs. 160 per month and she informed appellant No. 1 of the purchase of the house by her and he even paid rent for 2 months and then refused to pay the same. It would appear from para. 5 of the rent application that appellant No. 1 had been paid rent for a considerably long time when he committed default for the months of May and June, 1974 but now the respondent states that appellant No. 1 had paid rent only for 2 months before refusing to pay the rent. In cross- examination the respondent categorically stated that appellant No. 1 had paid rent for the months of May and June, 1974. This was in categorical contradiction with averments made by her in para. 5 of the ejectment application in which she had stated that the appellant No. 1 had committed default in payment of rent for these very two months (May and June, 1974) and when confronted with this position, she stated that what she had mentioned in para. 5 of the ejectment application was not correct. She also admitted that she had moved an application before the police against the appellants in which she had stated that the appellants had forcibly occupied the premises in dispute. If this were the position, it is impossible to believe that the appellants would have been paying rent regularly for an indefinite period as per averments made in the ejectment application or had even paid rent for two months as per statement made by respondent in her cross- examination. In fact, what the respondent stated in her police report against the appellants is an admission of the fact that the appellants had never been her tenants nor had been the tenants of Muhammad Khan and they were trespassers. No doubt, A. W.2 Muhammad Khan the previous occupant of plot over which the demised house exists, has supported the respondent but his evidence, at the most, would establish the title of the respondent but not the existence of the relationship of landlord and tenant between the parties, the same is the position of A. W.3 Haider Abbas. He claims to be the marginal witness of the agreement between the respondent and A. W.2 Muhammad Khan. He admitted that never in his presence the appellants had paid rent to the respondent. More than that, he categorically stated that according to his knowledge the appellants had never paid rent to the respondent. The mith that the appellants had been regularly paying rent to the respondent, or had even paid rent for May and June, 1974 only, has been totally shattered.
The evidence of this witness also, at the most, would establish the title of the respondent but not the existence of the relationship of landlord and tenant between the parties. Appellant No. 1 examined himself as O.W.1 and claimed that he had been living in the premises since 1956 alongwith Muhammad Khan from whom he purchased the premises on 26-4-1964. He has denied that he had ever remained as a tenant of even Muhammad Khan. He produced copies of the criminal reports submitted by the police under section 107/117, Cr.P.C, dated 12-5-1974 and 15-5- 1974. They are Exhs. 16-C and 16-D. These reports show that respondent had moved the police against the appellants and had alleged that they had forcibly occupied her house. This would clearly write off the existence of relationship of landlord and tenant between the parties. I did not refer to the evidence of appellant No. 2 Abdul Maubood who appeared as O.W.2 and of a neighbour Moinuddin O.W.3 who only deposed about the title of the appellants to the demised premises.
7. It is thus quite evident from the evidence adduced by the parties that there is no truth in the claim of the respondent that the appellants had ever paid rent to her. It also emerges from the evidence that the appellants were not inducted into the premises by the respondent. The evidence of A.W. 2 Muhammad Khan or of O.W.3 Moinuddin is not sufficient to decide the title of one or the other party to these proceedings. There is, however, no doubt that a serious dispute as to the title to the property in question exists and this cannot be resolved in eviction proceedings under the rent law which are summary proceedings of qausi-judicial nature. It is an admitted. Position that a declaratory suit as to the title of the property, filed by appellant No. 1 Suit No. 1654 of 1985 (old No. 848/76) is now at the stage of final arguments. Here, however, an objection was raised by the learned counsel of the respondent that the first suit of appellant No. 1 (Suit No. 610 of 1.974) having been rejected under Order 7, Rule 11, C.P.C. On 28-10-1974, the second suit was not maintainable as it was barred under the principle of res judicata. In this regard learned counsel of the appellants referred me to the judgment in the case of Mst. Kaneez Fatima v. Member (Revenue), Board of Revenue, Punjab reported as PLD 1973 Lah. 495, in which it is held that when a plaint is rejected under Order 7, Rule 11; C.P.C., it does not amount to adjudication of the dispute between the parties and therefore a fresh suit can be filed after the rejection of the plaint and the principle of res judicata is manifestly not applicable and that the principle of res judicata cannot be pressed into service unless the dispute has been heard and finally decided and for this it is necessary that there should be a decision finally granting or withholding the relief sought. It would thus appear that the second suit of appellant No. 1 is not barred under the principle of res judicata. At any rate, it is for the Court in which the suit is pending to decide as to whether it is barred by the principle of res judicata or not and this objection cannot be raised during the hearing of this appeal which is also a continuation of the quasi-judicial proceedings under The Sindh Rented Premises Ordinance, 1979.
8. I also note that while deciding the existence of the relationship of landlord and tenant between the parties, learned Rent Controller mainly relied on the entries on the record of Excise and Taxation Department which are in the name of Muhammad Khan from whom both the parties claim to have derived their conflicting title to the demised premises but there is a string of reported judgments to the effect that these entries are only meant to identify the person liable to pay the taxes and they are of no evidentiary value to determine the title to the property. One of such authorities is PLD 1967 Pesh. 380 Haji Muhammad Ramzan v. Mian Jamil Shah in which it is clearly held that such entries are totally irrelevant in an enquiry to determine as to whether the relationship of landlord and tenant existed between the parties. At the most, these entries in the record of Excise and Taxation Department may be relevant for the determination of the title of the person whose name appears in those entries but nothing more.
9. In view of such disputed title of the respondent, the proper course for the learned Rent Controller was to decide the issue as to the relationship of landlord and tenant against the respondent and advise her to first get her title established before seeking ejectment. I rind support in this view from the judgment in the case of Noor Muhammad and others v. Mst. Hajra and others reported in 1985 CLC 2085 and the judgments reported as 1974 SCM R 356 (Hamid Hussain v. The Government of West Pakistan) 1983 SCM R 1064 (Rehmatullah v. A.I Muhammad and another) and 1986 CLC 1577 (Ghulam Murtaza v. Muhammad Yasin).
10. As the facts stand, so far the respondent has not filed any suit seeking declaration as to her title to the demised premises but the suit of appellant No. 1 is at the stage of final argument. If this suit is dismissed and appellants fail to establish their title it would be a matter of speculation some as to whether the decision would establish the title of the respondent but even if it does, it would appear that she would have to sue the appellants in a Civil Court to obtain possession from them as the evidence adduced by her in the present rent case shows beyond doubt that they arc not the tenants of the respondent.
11. Be that as it may, I am of the view that learned Rent Controller had misdirected himself into holding that the relationship of landlord and tenant existed between the parties and therefore the order dated 14-4-1976 is liable to be set aside with the result that the subsequent order dated 19-5- 1976 for the deposit of the tentative rent and the third order dated 20-9-1987, whereby the defence of the appellants had been struck off, are all liable to be set aside, I would, accordingly, set aside all the three of them with the result that rent application of respondent Mst. Maqsooda Begum stands dismissed. Under the peculiar circumstances of the case the parties are left to bear their own costs.