MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This is an appeal of landlord with the leave of the Court against the judgment dated 5-12-1994 passed by learned Judge of High Court of Sind at Karachi whereby the same was accepted by the order dated 9-3-1993 in the ultimat round passed by the learned VII th Senior Civil Judge and Rent Controller, Karachi South, granting ejectment of the respondents on the ground of default in payment of rent was set aside and the application for ejectment was dismissed.
2. The case which has a chequered history is a glaring example of abuse of process of the Court and of wrong counseling entailing the delay of 11 years in the disposal of a simple rent case. The appellants claimed to have inducted respondent No. l as tenant in Shop No.2 and a godown bearing No.SR-8/12/1. Hasan Ali Affendi Road, Karachi, on monthly rent of Rs.250 per mensum. He was running therein a business in the name and style of 'Royal Block' Respondent No.1, it appears, sold away his business to Ch. Muhammad Siddique husband of respondent No.2. The latter defaulted in payment of rent obliging the predecessor-in-interest of the appellant to file Rent Case No.264 of 1986 for the ejccttnent of respondent No.2 on the ground of default in payment of rent. In her written statement she denied the relationship of landlord and tenant between the parties. After recording the evidence adduced by the parties, the learned Rent Controller by his judgment dated 7-10-1986 while deciding the sole issue against the appellants dismissed the application. The appellant on coming to know of "agreement of sale and other document" again filed Rent Case No.1470 of 1986 in the Court of 1st Senior Civil Judge and Rent Controller, Karachi (South) against both the respondents. Initially respondent No. l filed written statement laying claim to the ownership of the property but later on he appeared in the Court and after making a statement, filed with the permission of the Court an amended written statement conceding only the sale of his business concern to the deceased husband of respondent No.2. She in her turn filed her separate written statement pleading denial of relationship of landlord and tenant between the parties, on the ground of purchase by her husband of the premises from and business concern of respondent No. 1. After perusal of the evidence led by the parties, the learned Rent Controller by his order dated 23-8-1987 again found the sole issue against the appellants and dismissed the application in the second round. In consequence the appellants moved an application under section 16(1) of the Sind Rented Premises Ordinance, 1979 (hereinafter called as the Ordinance) seeking deposit of arrears as well as rent due. The learned Rent Controller ordered on the same day, that is, 23-8-f987 respondent No.2 to deposit tentative rent which was not complied with. The appellants, therefore, petitioned under section 16(2) of the Ordinance to which objections were filed by respondent No.2.
The learned Rent Controller however, by his order dated 28-3-1988 struck of the defence of respondent No. l but so far as plea of respondent No.2 was concerned the appellants were directed to file a civil suit for possession. Respondents, feeling aggrieved, filed to separate First Rent Appeals Nos.447 and 448 of 1988, wherein it was pleaded before the Sind High Court that respondent No.1 could not deliver the vacant possession of the premises to the appellant as it was with respondent No.2 while respondent No.2 reiterated her plea that she was occupying the premises in her own right. The learned Single Judge who was seized of the matter by his order dated 21-5-1988 set aside the impugned order dated 23-3-1988 and remanded the case to the Rent Controller to determine the question whether respondent No.2 was an authorised sub-tenant, or trespasser or she was claiming possession of the premises independently.
3. Meanwhile respondent No. l died and he could not be cross-examined An application for bringing his Legal Heirs on the file was moved which was objected to by respondent No.2, and a similar plea of Legal Heirs of respondent No.1 was not entertained by him by the orders dated 22-11- 1989 and 26-11-1989 respectively passed by the Rent Controller.
4. Feeling dissatisfied, the appellants filed Constitution Petition No.240 of 1990 in the Sind High Court to assail the aforementioned to orders of the Rent Controller which was accepted vide judgment dated 8-10-1990 and the orders were annulled.
5. In the present round 'the learned Rent Controller after appraising the evidence, by his order dated 9-3-1993 proceeded to strike of the defence of the respondents by deciding the issue of relationship of landlord and tenant between the parties in favour of the appellants, holding respondent No.2 to be an unauthorised sub-tenant and directing the respondents to put the appellants in vacant possession of the premises. Thereupon respondent No.2 filed First Rent Appeal No.188 of 1993 in the High Court. A learned Single Judge in the High Court took cognizance of the following lapses on the part of the appellants:
(i) "That during the hearing of Rent Case No.264 of 1986 the appellants while claiming themselves to be landlords asserted that respondent No.2 had been paying rent to them of the premises up to October, 1984, which she had categorically denied still the appellants singally failed to prove their assertion;
(ii) that the Rent Controller by his order dated 7-10-1986 had held in terms unequivocal that there existed no relationship of landlord and tenant between the parties reproducing in extenso the findings of the Rent Controller on the sole issue but the appellant had filed no appeal thereagainst, therefore, the aforesaid order had attained finality.
(i.e)that the appellants had served notice upon respondent No.1 (since dead and represented by respondents Sohail Rashid and his to other brothers) on 20-10-1986 regarding the purchase of the premises from their vendor whereas the former had sold the business concern to the husband of respondent No.2 on as early as 1-11-1975 and, therefore, the said transfer was not tantamount to sub-letting particularly when respondent No.1 denied the relationship of landlord and tenant and having even not paid any rent to the appellants; (iv)that alleged receipts evidencing the payment of rent by respondent No. l to the appellants was the result of forgery and collusion between them after the former had been won over by the latter and thus filed the amended written statement and, therefore, the same are of no consequence to establish the relationship of landlord and tenant between respondent No.1 and the appellants; (v)that respondent No. l and after his death his legal representatives having sold his rights in the premises to the husband of respondent No.2 was neither necessary nor proper party to the proceedings and, therefore, after dismissal of the appellants' application for ejectment there was no valid reason for the Rent Controller to pass under section 16(1) of the Ordinance.
6. The learned Judge in the High Court, therefore, by the impugned order set aside the order of ejectment of respondent No. l dated 23-8-1987. Dealing with the plea of respondent No.2, the learned Single Judge observed that-- ------------..The finding of Rent Controller in Rent Case No.264 of 1986 attained finality, in which it 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.l 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. "
7. Leave to appeal was granted by this Court to consider the following contentions raised by the appellants:-- "Learned counsel for petitioners pointed out that Mst. Khursheed Begum, respondent had filed Suit No.298 of 1988 against the petitioners seeking declaration to establish her title in the suit property and the same was dismissed on 29-8-1994. It was also contended that admittedly Muhammad Siddique, husband of Mst. Khursheed Begum, respondent, was inducted in the premises in question by Muhammad Rashid, respondent. The latter was proved to be the tenant under the petitioner and having defaulted in payment of rent. Mst. Khursheed Begum's claim for possession of the property through him was rightly adjudged by the learned Senior Civil Judge/Rent Controller, Karachi, the reversal of that finding by the High Court is result of misreading of evidence on the record."
8. In support of this appeal, Mr. Naraindas C. Motiani, learned Advocate-- on-Record appearing on behalf of the appellants contended:-- "(1)That the learned Single Judge in the High Court has failed to appreciate that the appellants could be non-suited, on the ground of earlier round of litigation in Rent Case No.264 of 1986 pursuant to which the respondent No.2 claimed ownership of disputed premises in her own right because thereafter in Suit No.298 of 1988 filed by her seeking declaration of her title to the disputed premises and injunction had been dismissed against which no appeal was preferred and therefore, it had attained finality. In this context reliance was placed on Kassim and another v. S. Rahim Shah (1990 SCM R 647).
(2)That the learned Judge has not noticed that respondent No. l was tenant of the appellant and respondent No.2 was admittedly inducted into the premises by respondent No. l and, therefore, she was rightly held as sublettee by the learned Rent Controller.
(3)That the learned Judge in the High Court has erred to ignore the fact that respondent No.2 was bound by remand order dated 21-5-1988 and that after remand of case by the learned High Court earlier Order of Rent Controller would not stand in appellant's way. "
9. Hafiz Abdul Baqi, learned Advocate-on-Record, appearing behalf of respondent No.4, on the contrary substantially defended the impugned order of the High Court on the ground reproduced in para. 5 ante.
10. We would prefer to dispose of the criticism reproduced in para. 5 ante that weighed with the learned Single Judge in upsetting the finding of the learned Rent Controller. We are of the considered view that the failure of the appellants to prove their assertion initially made by the appellants in their application for ejectment qua the payment of rent by respondent ,No.2, cannot lead us to draw an adverse inference against the appellants.
11. Mr. Naraindas C. Motiani, Advocate-on-Record has rightly repelled the second objection by pointing out and which is indeed correct exposition of law that the appellants could not be declined the relief on the ground that in the earlier round in Rent Case No.264 of 1986 wherein the finding on the question of relationship of landlord and tenant went against the appellants in view of the dismissal of Suit No.298 of 1988 filed by respondent No.2 in the Civil Court to establish her proprietary rights, in the disputed premises. Besides the case of Kassim 1990 SCM R 647 relied upon by the Mr. N.C. Motiani, Advocate-on---Record, reference can also be profitably made to a rent case of Muhammad Ihsan v. Muhammad Hafeez (1995 SCM R 1380) wherein what is to say of dismissal of suit of the tenant for claiming title to the premises, the "mere pendency of the suit filed by a tenant against the landlord relatable to the property in dispute was held to be of no significance unless it raised serious doubt about the landlord's title to the property". The earlier order of learned Rent Controller had not, therefore, attained finality on the aforesaid score.
12. Conceding for a while that the notice of transfer of the premises to the appellants was belatedly served upon respondent No.2 but we are not the least convinced that the transfer of business concern by respondent No. l to the husband of respondent No.2 did not fall within the mischief of subletting. Again the denial of relationship of landlord and tenant between the appellants and respondent No.2 would not turn the mischief of subletting into a valid transfer of premises.
13. In the limited jurisdiction under the Act, the Rent Controller had chosen not to go into the authenticity or otherwise of the receipts evidencing payment of rent by respondent No. l to the appellants. In any case, how could this assertion in isolation affect the impugned order of ejectment passed against the respondents ?
14. Respondent No.1 or for that matter his three sons were necessary party to the proceedings in hand right from their inception till the vacant possession of the premises is delivered to the appellants. In point of fact the deceased respondent No. l was the original tenant of the premises.
Respondent No.2's husband having been adjudged as sublettee, the Rent Controller had the jurisdiction to pass order under section 16(1) of the Ordinance.
15. The learned Single Judge has thus erred to interfere in the order of ejectment passed in favour of the appellants by the Rent Controller on improper appreciation of evidence on the record. The findings of the learned Judge in the High Court undoubtedly suffered from misreading and non- reading of evidence which cannot be sustained.
16. We accept this appeal, set aside the impugned order of the learned Single Judge in the High Court and restore that of the learned Rent Controller with costs. The appellants shall be put in the vacant possession of the premises within six months failing which the appellants shall be entitled to the said possession with the police aid without any notice to the respondents.