The abovementioned two appeals were disposed of by a single short order on 9-9-1996, and the cases were remanded to the Rent Controller with a direction to frame an issue in respect of relationship of the landlord and tenant between the parties. The Rent Controller was directed to decide the cases afresh after allowing both the parties a chance to lead their evidence. These are the detailed reasons for the abovesaid order.
2. In nutshell the facts in these two appeals are to the effect that Gordhandas the respondent in both these appeals filed rent cases against Santoomal @ Santosh Kumar stating that Santoomal was his tenant in respect of a house bearing D.S. No. 1-25 measuring 3357 sq. Feet situated Ghari Khairo Town, District Jacobabad (in F.R.A. No. 21/94) and that he was also tenant in respect of the premises bearing D.S. No. 1-281 situated in the above described town (in F.R.A. No. 22 of 1994).
Santoomal had denied the relationship of landlord and tenant from the very outset and further claimed that the premises in both the appeals, were sold out to Santoomal by Maniram the late father of Gordhandas, by an agreement of sale and that he was in occupation of the said properties on the basis of the said agreement of sale, of which he had performed a part by paying a part of the consideration to late Maniram. Not only this, but he specifically pleaded that a suit for specific performance for the agreement of sale had been filed by Santoomal against Gordhandas, which was F.C. Suit No.3/1985 in respect of premises No.D.S. 1-25, and Suit No.4 of 1985 in respect of premises No. D. S.1-281 and that the suits were pending in the Court of 1st Senior Civil Judge, Jacobabad. In spite of such pleas, the Rent Controller on an application of Gordhandas in each case under section 16(1) of Sindh Rented Premises Ordinance, 1979 passed an order directing Santoomal to deposit the arrears of rent for the past three years at the rate of Rs.600 per month and Rs.400 per month, respectively. This application under section 16(1) of Sindh Rented Premises Ordinance was hotly contested by Santoomal by filing objections to it and raising pleas that there was absence of the relationship of landlord and tenant, and that Gordhandas had at no time put the appellant Santoomal in possession of the premises in dispute as his tenant, and that at no time Santoomal paid any rent to Gordhandas. Admittedly there was no written agreement of the tenancy nor any proof of tenancy in possession of Gordhandas in shape of any other document. In view of such pleas, Santoomal wilfully did not deposit the arrears of the rent and the future rent on the ground that he was neither a tenant nor was obliged to pay anything to Gordhandas. In spite of such pleas, the Rent Controller proceeded to pass an order for deposit of the rent against Santoomal. Santoomal did not comply with the order. Another application under section 16(2) of Sindh Rented Premises Ordinance, 1979 was filed by Godhandas, which too was hotly contested and objections were filed in each case and it was pleaded that in absence of any evidence in favour of Gordhandas in support of his claim of being a landlord, the order of deposit of rent was arbitrary, and that since it was an interlocutory order, the appellant Santoomal had purposely not deposited any amount towards the rent. After that an order of striking of the defence and ejectment was passed by the Rent Controller on the ground of non-compliance with the order of Rent Controller in depositing the rent in pursuance of order passed by him on the application under section 16(1) of Sindh Rented Premises Ordinance. After the ejectment orders, the appellant has filed these appeals under section 21 of Sindh scented Premises Ordinance challenging the first order of the Rent Controller ordering depositing the rent, as well as the second order ordering striking off the defence and the ejectment of the appellant from the premises-in-question.
3. The learned counsel for the appellants as well as the respondents argued the appeals in detail.
4. I have given full consideration to all the arguments advanced by the counsel and I find at the very outset that under the facts and circumstances of this case, the Rent Controller should have framed the issue in respect of relationship of landlord and tenant and after allowing the parties a chance to lead their evidence if any, on that issue, should have first decided the relationship between the parties. The order of deposit of rent could only follow thereafter.
5. In this view of mine I am supported by the case of Mst. Miskina Jan v. Rehmat Din (1992 SCM R 1149). In the case referred above, the tenant had denied the relationship basing his claim on an oral sale agreement and that a suit for specific performance was already pending in the Civil Court.
6. In the present proceedings Santoomal had filed his suit for specific performance of agreement of sale prior to the filing of rent application by Gordhandas similar to the circumstances described in the case of Mst. Miskina Jan. Gordhandas had suppressed the facts that such civil suit for specific performance of the agreement of sale was pending although he was served with the notice in the civil suit. In the case of Mst. Miskina Jan the civil suit for specific performance was dismissed, but an appeal before the District Court was pending, while in this case the civil suit is still pending. Therefore, I am of the opinion that the dictum laid down in the case of Mst. Miskina Jan is applicable in this case and, therefore, the order of the Rent Controller striking off the defence, right- way, without framing the issue in respect of the relationship of the landlord and tenant, does not appear to be sound in law.
7. Yet another point in favour of Santoomal is that he claims that he is in possession of the premises in dispute on the basis of agreement of sale. Suit for specific performance of the said agreement is pending. He has paid part of the consideration as advance, under the terms of the agreement. Therefore, ejectment order by the Rent Controller amounted to deprive him of the protection provided to him by the provisions of section 53-A, Transfer of Property Act, 1882. In this view of mine I am supported by the case of Sardar Muhammad Anwar Khan v. Mian Asghar A.I (1988 CLC 402).
8. The learned counsel for the respondent/Gordhandas tried to justify the case of Gordhandas by arguing that since an order eras passed by the Rent Controller for deposit of the rent, Santoomal was bound to deposit the rent and then file the present appeal. I do not agree with the arguments of the learned counsel for the respondent on this point as, the facts of this case very clearly suggest that the main issue between the parties is with regard to ownership of the property. The learned Rent Controller does not appear to have appreciated the decision of the Supreme Court in the case of Mst. Miskina Jan, in which case it was held that in such case the non-deposit of rent was inconsequential.
9. Under these circumstances, I cannot sustain the order of the Rent Controller and, therefore, set aside the same with the direction that the case be remanded back to the learned Rent Controller.
The learned Rent Controller should frame the issue in respect of the relationship of the landlord and tenant and he should decide the point afresh after allowing both the parties a chance to lead their evidence if any. It is also observed that since the matter is sufficiently old, the Rent Controller should decide the matter within the shortest possible time and unnecessary adjournments be avoided.