1. ' This F.R.A. Arises from an order dated 6-3-1998 from Rent Application No,188 of 1993 passed by the IInd Senior Civil Judge and Rent Controller Hyderabad Sindh. By a short order, dated 12-10-1998, I had allowed this F.R.A. And had directed that the premises be vacated by the respondent within three months failing which he is to be evicted by use of police force. In so far as the arrears of the tent is concerned since the Rent Controller had failed to pass any order with regard to that, I also declined to pass such order. Following are the detailed reasons for the such order.
2. ' Brief facts of the case are that the appellant is the owner of a house situated on first floor over shops of commercial area plots Nos.268 to 271 opposite Muslim Commercial Bank Limited, Unit No,11, Latifabad, Hyderabad. The appellant claims that the respondent is his tenant for a long time and has been paying rent to him at the rate of Rs,500 per month. According to him the respondent has throughout remained irregular in payment of monthly rent but since he happens to be a real brother of the appellant, the appellant avoided initiating ejectment proceedings against him. The respondent did, however, pay rent irregularly till May, 1992, but thereafter, stopped paying rent altogether and repeated demands for the rent were of no avail. The appellant, therefore, served notice dated 1-8-1993 on the respondent requiring him to clear all the arrears of rent and to vacate the premises in question but the respondent did not reply, leading to filing of Rent Application No,188 of 1993 alongwith an application for rent order under Sindh Rented Premises Ordinance, 1979.
3. ' Based on the pleadings of the parties the learned Rent Controller framed the following issues.
4. ' Whether there exists relationship of landlord and tenant between the parties.?
5. ' Whether opponent committed wilful default in payment of rent? What should the order be?
6. ' The applicant in the case examined himself and produced various documents and also examined one Imamuddin who happened to be his brother and one Lal Muhammad Inspector D.H.O.
7. Latifabad. On the other hand the opponent examined himself and filed various documents in support of his contentions. The learned Rent Controller answered first two issues in the negative and as a result dismissed the Rent Application.
8. ' I have examined the record and proceedings of the case before the Rent Controller and have examined various documents. The basic bone of contentions between the two parties was that the respondent maintained that the property which he was occupying was not owned by the appellant. According to him this property was purchased by the father of the appellant and the respondent but in the name of the appellant. Consequently he had just as much right over the property that he was occupying as the appellant. He thereby denied that there was any relationship of landlord and tenant between two of them. However, in so far as the appellant was concerned he produced documents to show that he was allotted the suit property in question and that he had raised construction on it himself. According to the appellant the respondent lived elsewhere and was in straightened circumstances and hence on the recommendation of his other brother namely Imamuddin agreed to rent out to him a certain portion of his property at a monthly rent of Rs,500. It has already been brought on record that other brother Imamuddin and the appellant also entered into some kind of a litigation which ended by way of a compromise whereby Imamuddin accepted title of the appellant to the property in question.
9. ' In the evidence led the respondent in the cross-examination has clearly admitted that the construction on the plot in question was made by the appellant. However, he did maintain that since the family was living as a joint family the construction raised on the plot cannot be regarded to be the exclusive property of the Appellant. Nevertheless the respondent had on more than one occasion admitted that he was the tenant of the appellant. Besides, the evidence of Imamuddin also corroborates the contentions of the appellant that the respondent was tenant of the appellant. Ownership of the property of the appellant also is beyond question inasmuch as the property was leased in favour of the appellant. From the tenor of evidence it is clear to me that the appellant had indeed tried to accommodate the respondent in view of his poor circumstances but subsequently the respondent took advantage of the fact that he was the brother of the appellant and failed to abide by the terms under which the property was rented out to him. The learned Rent Controller has taken pains to show that there was no relationship of landlord and tenant between the appellant and the respondent because no agreement in writing was in existence between the two of them in contravention of section 5(1) of the Sindh Rented Premises Ordinance, 1979. The wording of the said section though clearly enjoins the existence of an agreement in writing but the manner in which this is written does not make it into a mandatory provision of law. All it appears to be is directory inasmuch as it could be read as being desirable that an agreement should be in writing. Where it to be otherwise then this would run contrary to the basic principle of the law of contract whereby the contract could be oral as well as in writing. The very fact that the appellant and respondent had a contractual relationship which encompassed a period of about 25 years in itself brings home the point that there was a contractual relationship between the two of them. The fact that the terms of this relationship was never reduced into writing was obviously because of the special relationship of being brothers. In any case the Sindh Rented Premises Ordinance, 1979 was not in force at the time that the Appellant moved in the premises.
10. Considering the discussion above I am led to an irresistable conclusion that relationship of landlord and tenant did exist between the appellant and the respondent notwithstanding the absence of a written agreement between the two of them. In so far as the question of default by the respondent in the payment of rent is concerned, it appears to me through a perusal of the evidence that such default was often acquiesced into by the appellant perhaps because of very special blood relationship between the two of them and because of somewhat unfortunate economic circumstances of the respondent. I would presume that it was for this reason that the learned Rent Controller declined to pass a rent order for arrears of rent, I too for the similar reasons declined to pass such an order, however, I am convinced that since there was a relationship of landlord and tenant between the appellant and respondent the order of the Rent Controller dismissing the rent application was misconceived and hence, I allow this F.R.A. And set aside the Rent Controller's order dated 6-3-1998 and maintain my direction as passed in the short order dated 12-10-1998.