1. ' This appeal is directed against the order dated 9-3-1993 passed by learned VIth, Senior Civil Judge, Karachi-South in Rent Case No,1470 of 1986 directing the ejectment of the appellant and the L.Rs, of respondent No,6 from the case premises within 30 days.
2. ' Briefly stated the facts which lead to this appeal are that on 11-11-1986 the respondents Nos.1 to 5 through their attorney Muhammad Zaki filed ejectment case against the appellant and one Muhammad Rashid, who subsequently died on 25-7-1989 on the ground that deceased Muhammad Rasheed was in occupation of Shop No,2 and a go down of Property bearing SR-8/12/1, Hasan Ali Affandi Road, Karachi as their tenant at Rs,250 p.m and was running a business in the name of ROYAL BLOCK and that deceased Muhammad Rasheed sold away his business with machinery and the goodwill and illegally handed over the possession of the said premises to one Siddique Chowdhry, who subsequently died on 27-4-1985 and his wife Mst. Khurshid Chowdhry occupied the case premises, against whom an application for ejectment was filed by the respondents Nos.1 to 5 which failed as neither late Siddique Chowdhry nor his wife was the tenant.
3. The second ground advanced in the rent case is that deceased Muhammad Rasheed willfully defaulted in payment of rent from October, 1984, and lastly the premises are required by them for their own use and occupation.
4. ' On 4-12-1986 Muhammad Rasheed, the opponent No,1 filed his written statement in denial of the claim of the applicants. He stated therein that he acquired the case premises from one Haridas Lalji in 1949 and sold it with machinery and fittings to late Siddique Chowdhry and he has now no more any concern with the case premises. He specifically denied the payment of rent to the applicants for any period and also denied the existence of relationship of landlord and tenant between him and the applicants.
5. ' On 4-12-1986 Mst. Khurshid Chowdhry, the opponent No,2, also filed her written statement in denial of the case of the applicants. She asserted that neither her husband nor she is tenant of the applicants in the case premises and such finding is already given by the Rent Controller in Rent Case No,264 of 1986 filed against her by the applicants and that there exists no relationship of landlord and tenant between her and applicants. She claims possession of the case premises in her own rights. On 4-12-1986 she also filed preliminary objections to the case alleging therein that the matter is hit by principle of res judicata. She was not served with any notice by the applicants regarding sale and purchase of the case premises and that the inclusion of opponent No,1 in the rent case is uncalled for, who is also neither the tenant, nor rents have been demanded or paid by opponent No,1, who is unnecessary party to the case.
6. ' On 5-1-1987 the applicants made application under section 16(1) of S.R.P. Ordinance, 1979 praying therein that a tentative order for the deposit of rent may be passed against the opponent No,1 (Muhammad Rasheed) to which on 26-2-1987 objections were filed on his behalf.
7. ' On 16-5-1987 a statement was filed by the opponent No,1 to the effect that he dis-engage Mr. Rafiq Yar Khan Yousufzai, Advocate, and also filed an affidavit admitting the entire case of the applicants except payment of rent up to September, 1984, but he asserted to have paid rent up to December, 1984. On the same day i.e, 16-5-1987 he engaged another advocate and made application for amendment of his written statement and on 20-8-1987, with the consent of the applicants the prayer was granted but without notice to the opponent No,2 and the record shows that she was neither given notice of the same nor was afforded any chance to oppose it and thereafter on 23-8- 1987 the opponent No,1 filed his amended written statement in consonance with his affidavit filed on 16-5-1987, admitting the case of the opponent and incomplete contrary to his earlier written statement.
8. ' On 23-8-1987, considering the admissions made in the amended written statement of opponent No,1, the Rent Controller passed tentative rent order on the application under section 16(1) of S.R.P.
9. Ordinance, 1979 made on 5-1-1987. And since the opponent No,1 committed default in compliance of the Rent Order dated 23-8-1987, as such vide order dated 28-3-1988, the defence of the opponent No,1 was struck off under section 16(2) of the S.R.P. Ordinance, 1979 directing him to hand over the vacant possession of the case premises to the applicants within 60 days. And keeping in view the judgment passed by the Rent Controller in Rent Case No,264/86, dismissed the ejectment application against the opponent No,2 and observed that the applicants may file a suit for possession against her.
10. ' Against the order dated 28-3-1988, the opponent No,2/appellant filed F.R.A. No,458 of 1988, while Muhammad Rashid/opponent No,1 also filed F.RA. No,447 of 1988 in this Hon'ble High Court, which were heard and the impugned order was set aside and the case was remanded to the Rent Controller vide order dated 21-5-1988, which reads as under:- "SALEEM AKHTAR. J.---Both these appeals arise from the order of Controller dated 28-3-1988 where the application under section 16(2) of Sindh Rented Premises Ordinance filed by Mst. Rehmat Bibi and others against Muhammad Rashid and Khursheed Begum was partly allowed. Rashid was ordered to be ejected as default has been committed in depositing the rent but so far Mst.
11. Khurshid Begum is concerned it was ordered as under Rent Case No,264 of 1986, the Controller had held that no relationship of landlord and tenant existed between her and the landlady, she should file a civil suit for possession against Mst. Khurshid Begum in Civil Court.
12. ' Mr.Nooruddin Surki the learned counsel for the appellant has contended that the impugned order is not clear as Rashid cannot hand over possession of the demised premises which is in possession of Mst. Khurshid Begum. He has made a statement that physical possession is with Mst. Khurshid Begum. In these circumstances according to him the order cannot be executed. The order is not ambiguous so far Rashid is concerned. So far Mst. Khurshisl Begum is concerned; the order has directed the landlady to file a civil suit. This can be done only if it is held that Mst. Khurshid Begum is not a sub-tenant. If sub tenancy is unauthorized then the order of ejectment passed against the tenant can be executed against such sub-tenant. Considering from this point of view, the order passed in respect of Mst. Khurshid Begum cannot be sustained. The order passed against Rashid and Mst. Khurshid Begum are so co-related that both cannot stand independently. I, therefore, set aside the order, dated 28th March, 1988, remand the case to the learned Controller. He should determine whether Mst. Khurshid Begum is an unauthorized sub-tenant, trespasser or claiming possession independently. After determining this issue proper order under section 16(2) may be passed within a period of 3 months."
13. ' On 5-1-1987 affidavit-in-evidence of Muhammad Zaki and again on 28-9-1987 affidavits-in- evidence of Muhammad Zaki and other applicants were filed but they were not subjected to cross- examination by the opponent party.
14. ' On remand of the case, on 14-9-1989, the applicant's attorney Muhammad Zaki filed his another affidavit-in-evidence and the Rent Controller accepted without any order about the affidavits already filed in evidence by the applicants side. Anyhow, on 27-9-1989 he was cross-examined by only opponent No,2 and without mentioning as to whether chance was given to the opponent No,1 or not. The opponent No,2, Mst. Khurshid Chowdhry filed her affidavit-in-evidence on 15-10-1989 and she was cross-examined only by the applicants and not by the opponent No,1 and the record is silent as to whether any chance was even given to him. One Sohail Rashid son of late Muhammad Rashid, the opponent No,1 filed his affidavit-in-evidence, who never produced himself in Court for his cross-examination.
15. ' After hearing the parties the learned Rent Controller passed fresh order dated 9-3-1993 under section 16(2) of S.R.P. Ordinance, 1979, holding that the opponent No,2 (Mst. Khurshid Chowdhry) is an unauthorised subtenant and ordered both the opponents to vacate the case premises within 30 days. It is this order which is challenged by only Mst. Khurshid Chowdhry in the instant appeal.
16. ' I have heard the learned Advocates for the parties and with their assistance perused and examined the record.
17. ' At the very outset, I have no hesitation to say that the conduct of the applicants and the opponent No,1 in this case is very doubtful and does not inspire confidence in them. In Rent Case No,264 of 1986, which was filed only against Mst. Khurshid Chowdhry, the opponent No,2 in the instant case, the applicants asserted that she is their tenant and that she paid rent to them up to October, 1984, but she denied the payment of rent and stated that she neither paid any rent to them nor any rent was ever demanded from her by the applicants nor any intimation was given to her about the sale and purchase of the case premises by the applicants. She also stated that she is in possession of the case premises in her own legal rights and in the end stated that there exists no relationship of landlord and tenant between her and the applicants. The then Rent Controller rightly dismissed the said Rent Case vide order dated 7-10-1986, holding that there exists no relationship of the landlord and tenant between the parties and dealt with the same point as under:- "POINT NO,(1): The applicant Muhammad Zaki who is Rent Collector and attorney of the applicants has said that the applicants were owners of Property No,SR-8-12/1 Hassan Ali Effandi Road, Karachi and has produced the sale-deed. He has said that late Chowdhry Siddique was tenant in respect of Shop No,2, and go down in the aforesaid property at Rs,250 per month excluding electric and gas charges. He has produced the copy of P.T.I. To show that late Mr. Siddique Chowdhry was his tenant. The opponent Mst. Khursheed Chowdhry has said that she was widow of Siddique Chowdhry who was in occupation of the same after his death for earning purposes. She has said that her husband never paid any rent to the applicant nor the rent was ever demanded from him nor from her and no intimation for the purchase/transfer of the premises in question was sent by the applicant to her late husband or to her. She further said that after she took over the work nobody came to demand rent from her nor she was intimated by the applicant that they had purchased the same and, therefore, there was no relationship of landlord and tenant between the parties. The applicant's witness Muhammad Zaki has boldly admitted that late Muhammad Siddique Chowdhry was occupant of the disputed premises since last 7/8 years, He has said that his tenant was Royal Block and previously Muhammad Rashid was its proprietor and after two years Muhammad Siddiq purchased the same and became its tenants. He has further said that he did not make Chowdhry as his tenant but his tenant was Royal Block. He has admitted that he did not demand rent in writing from Chowdhry Siddique and further admitted that he did not issue any notice to Muhammad Siddiq informing him that he was owner of the premises. He further admitted that he did not ask the opponent to pay rent and that he did not give any notice to the opponent in that behalf showing that he was owner of the premises. He has further admitted that he did not file any ejectment case against M/s. Royal Block, during the lifetime of Muhammad Siddiq. He has denied that their case was not filed against Royal Block. He has admitted that he had no receipt bearing the signature of late Muhammad Siddiq. The admission of the applicant's witness that he failed to issue any notice of intimation of transfer/purchase of the premises, demanding rent after there and in that case the opponent's version is duly supported that the opponent had no intimation of the transfer/purchase. It is further admitted that the actual tenant was M/s. Royal Block and it was not the opponent against whom any tenancy may be existing. Therefore, the case has been filed against the wrong person. No intimation notice under section 13(A) of the Ordinance has been issued and, therefore, that opponent's version that there was no relationship of landlord and tenant between the parties existing appears to be correct in view of the settled position of law.
18. Accordingly, I hold that there does not exist any relationship of landlord and tenant between the parties. The point is answered accordingly."
19. It is pertinent to note that against the above said findings of the learned Rent Controller in Rent Case No,264 of 1986, no appeal was filed by the aggrieved party i.e, the respondents Nos.1 to 5 in the instant appeal as such it attained the finality.
20. ' It has come on record, though disputed by the appellant named above, that the intimation notice regarding the transfer/purchase of the case premises by the respondents Nos.1 to 5 was given to the respondent No,6 (Muhammad Rashid) for the first time vide notice dated 20-10-1986 while the said Muhammad Rashid sold the business concern to appellant's husband on 1-11-1975 i.e, much prior to the intimation notice, if any, given by the respondents Nos.1 to 5, as such it shall not amount subletting as the respondent No,6 in his earlier written statement denied to be the tenant in the case premises and also denied to have ever paid the rent to the respondents Nos. 1 to 5.
21. ' The case premises are adjacent to the premises in occupation of the respondents Nos.1 to 5 and they must be seeing functioning, running and working of the concerned persons in the same but the pleadings of the respondents Nos.1 to 5 in the above said two rent Cases viz. 264/86 only against Mst. Khurshid Chowdhry and 1470/86, against Muhammad Rashid and Mst. Khurshid Chowdhry are totally inconsistent, which are never appreciated in any judicial system. The opponent No,1 (Muhammad Rashid) though having no concern with the case premises, after he had sold it to opponent No,2's husband in 1975, in the first instance he came in Court with the real and actual facts but his subsequent conduct shows that he was probably won over by the applicants/respondents Nos.1 to 5, for the reasons best known to them.
22. ' In order to prove the tenancy of Muhammad Rashid, the applicants produced counterfoils of rent receipts issued in the name of Muhammad Rashid. The first receipt is dated 3-8-1975 for July, 1975 and the last receipt is dated 1-1-1985 for the month of December, 1984. The appellant pleaded in his case that opponent No,1 (Muhammad Rashid) paid rent up to September, 1984 contrary to his own receipts. If the said receipts were in existence in 1986 when Rent Case No,264 of 1986 was filed against Mst. Khurshid only, then how the appellants stated that Mst. Khurshid paid rent up to September, 1984. In my opinion, at that time the said receipts were not in existence, as the opponent No,1 (Muhammad Rashid) denied the payment of any rent to appellants but when the things were settled with him, the said receipts appear to have been subsequently prepared to establish the changed circumstances. In view of the above, position, the so-called rent receipts loses their authenticity and as such merit no consideration. Apart from the said receipts, there is no other documentary evidence to show that Muhammad Rashid was tenant of applicants, except his written statement but it also cannot take place of evidence.
23. ' In any case, keeping in view the findings of the Rent Controller in Rent Case No,264 of 1986, and the pleadings of respondents Nos.1 to 5 in that case and the earlier pleadings of the respondent No,6 (Muhammad Rashid); and the plea taken by the appellant in her preliminary objections dated 4- 12-1986 that opponent No,1 (Muhammad Rashid) has been unnecessarily joined the party, I am of the considered opinion that opponent No,1 (Muhammad Rashid) was not the proper party in the ejectment proceedings but it appears that he had been proposal brought in the Court to get support by the applicant/respondents Nos.1. To 5 as such the ejectment application ought to have been dismissed against him and no order under section 16(1) of Sindh Rented Premises Ordinance, 1979 could have been legally passed against him, hence I, dismiss the ejectment case against the opponent No,1 (Muhammad Rashid) and also set aside the order dated 23-8-1987, passed against him under section 16(1) of the Sindh Rented Premises Ordinance, 1979.
24. As regards the present appellant, it is an admitted position that the finding of Rent Controller in Rent Case No,264/86 attained finality, in which it c was held that the tenant in the case premises was M/s. Royal Block and that no notice intimating the transfer/purchase of the case premises was given by the applicants/respondents Nos.1 to 5 to the appellant named above who claims to have been running the business in the case premises under the name and style M/s. Royal Block, and that no case is filed against the admitted tenant ROYAL BLOCK, as such the ejectment case against the present appellant was also not maintainable in law. Hence it also merits dismissal.
25. ' Under the above circumstances, I have no other option, but to set aside the impugned order dated 9-3-1993 and allowing this appeal, dismiss the Rent Case No,1470 of 1986 with cost, throughout, as the applicant brought a false case against the appellant knowingly.