1. ' Messrs Sherani Brothers through its partner, Waqar Sherani has filed the present appeal under section 24 of the Cantonment Rent Restriction Act, 1963 (hereinafter referred to as the Act), against the order, dated 10-4-2000 passed by learned Additional Controller of Rent Clifton Cantonment, Karachi in R.C. No,74 of 1990 filed by the respondent No,1 against the respondent No,2 and the appellant, whereby Additional Rent Controller allowed the ejectment application, in respect of the premises bearing No,11-C, 12th Commercial Street, Phase-II Extension, Defence Housing Authority, Karachi.
2. ' The facts in brief are that Mrs: Sarwat Akhtar (respondent No,l) is the owner landlady of the Plot No,1 1-C, 12th Commercial Street, Phase 11 Extension with seven shops/godowns in Pakistan. Defence Officers Housing Authority, Karachi (hereinafter referred to as the premises), she rented the premises to the respondent No,2 at the rate of Rs,2,000 per month excluding electricity, gas and water consumption charges, payable in advance in the first week of each month, under the tenancy agreement, dated 27-2-1984 for period of 11 months. The respondent No,2 remained in possession of the premises, after the expiry of agreement and tendered the rent. He defaulted in payment of rent w,e,f, July to September, 1987. Eviction proceeding was initiated by filing the Rent Case No,68 of 1987 before the Additional Controller of Rents, Clifton Cantonment, Karachi. The matter was settled between the landlord and the tenant second another agreement of tenancy was executed on 30-8-1987 with enhanced rate rent of Rs,3,000 per month with further condition that respondent No,1 shall not sub-let the premises or any portion thereof to any person under any circumstances. It was the case of the landlady that in the year 1988, she left for Lahore to join her husband and remained there upto 14-9-1990. The respondent No,2 paid the rent to her Rent Collector upto May, 1990, thereafter he defaulted in payment of rent w,e,f, 1-6-1990. On return from Lahore, she alongwith her brother, husband and in company of a friend, visited the premises but the same was found to be in occupation of the appellant. The landlord came to know that respondent No,2 in utter violation of the terms and conditions of the agreement and without consent in writing of the landlord has subject the premises to the appellant. The eviction was sought through an application under section 17 of the Act, on the grounds of default as well as sub- letting without her written consent.
3. ' The respondent No,2 in spite of service failed to contest the eviction application. The appellant in his written statement admitted that, Mrs. Sarwat Akhtar was the owner of the premises with construction thereon upto 14-7-1984, who agreed to sell the premises to one Mrs. Qamar Jamal Khan by agreement, dated 14-7-1984 for Rs,1,25,000 and after receiving the full consideration, handed over the vacant and peaceful possession to the said purchaser alongwith original papers in part performance of the contract. On 1-10-1986. Mrs. Qamar Jamal executed tenancy agreement in favour of Nisar Ahmed Sherani, the younger brother of the appellant, letting out the entire ground floor to him at the rent of Rs,1,700 per month with Rs,20,000 as security deposit. In pursuance of the tenancy agreement, Nisar Ahmed Sherani came in occupation of the entire floor as a tenant of purchaser Qamar Jamal w,e,f, 1-10-1987 and started business and started business in the name of Sherani Brothers alongwith his brother Waqar Ahmed Sherani (the appellant). It was further pleaded that Nisar Ahmed Sherani filed Civil Suit No,1663 of 1987 in the Court of Vth Civil Judge, Karachi South against Qamar Jamal and Mrs. Sarwat Akhtar. Mrs. Qamar Jamal is permanently settled in U.S.A., the appellant as attorney of said Qamar Jamal, is looking after the property. Mrs. Sarwat Akhtar has no right to evict the appellant and has falsely tried to introduce Sher Zameen Khan as her tenant to justify that the case of unauthorized subletting by him to the appellant. He has denied all the averments of the application and maintained that all the proceedings between Mrs. Sarwat Akhtar and Sher Zameen Khan were collusive.
4. ' After dismissing the application for framing of preliminary issue with regard to the relationship of landlord and tenant between the parties, the learned Rent Controller allowed the eviction application by order, dated 5-11-1991, which was appealed through First Rent Appeal No,709 of 1991.
5. By order, dated 17-8-1998, the appeal was disposed of in terms of following order:- "The case is remanded to the learned Rent Controller, Clifton Cantonment, who is hereby directed to frame a preliminary issue regarding the existence or non-existence of relationship of landlord and tenant between the parties. Based on determination, of the issue -further proceedings would be undertaken by the learned Rent Controller, if any. The learned Rent Controller is further directed to comply with the directions on determination of relationship between the parties within a period of two months from the date of receipt of this order."
6. ' After the remand affidavit-in-evidence of Akhtar Ali Khan, the husband and attorney of the landlord was filed with numerous documents, whereas, the appellant filed his affidavit-in- evidence with numerous documents, both were subjected to the cross-examination. The learned Rent Controller framed the following issues:-- "(1) Whether there is any relationship of landlord and tenant between the applicant and opponent No,2?
(2) Whether the opponent No,1 was the original tenant of the applicant?
(3) Whether the opponent No,2 is the subletee of the opponent No,1?
(4) Whether the opponent No,2 is entitled to pay the rent of the subject tenement?
(5) Whether the opponent No,2. Has committed wilful default in payment of rent?
(6) Whether the applicant is entitled for any relief claimed in ejectment application?
(7) Whether Mrs. Qamar Jamal executed a tenancy agreement, dated 1-10-1988 in favour of Nisar Ahmed Sherani, the younger brother of Viqar Ahmed Sherani, letting out the entire ground of the premises in question?
(8) Whether on 15-9-1987, the said Nisar Ahmed Sherani filed Case No,1663 of 1987 the Court of Vth Civil Judge, Karachi, South against the said purchaser Mrs. Qamar Jamal as defendant No,1 and present applicant as defendant No,2 for permanent injunction?
(9) Whether the applicant and the opponent No,1 in connivance with each other filed Rent Case No,68 of 1987 and Case No,1585 of 1987 in order to frustrate the lawful possession of the opponent No,2 in premises in question?
(10) What should the order be?"
7. ' After evaluating the evidence and material placed learned Rent Controller recorded the finding that the respondent No,1 is the landlord and respondent No,2 is her tenant and the appellant sub- lettee. The remaining issues were also decided against the appellant, resultantly, the eviction application was allowed by the impugned order. Hence the present appeal.
8. ' I have heard Mr. Umar Farooq Khan, learned counsel for the appellant and Mr. Ahmed Pirzada, learned counsel for the respondents.
9. 'Mr. Umar Farooq Khan has vehemently contended that the learned Rent Controller has erred in treating the respondent No,1 as owner/landlord and respondent No,2 as her tenant. He further contended that the eviction order was passed in utter disregard of the judgment, dated 28-9-1989 in Suit No,1663 of 1987, filed by Nisar Ahmed Sherani against the respondent No,1 and Qamar Jamal, whereby the respondent and said Qamar Jamal wets restrained from evicting the appellant except in due process of law.
10. ' In my view, the application for eviction is permissible under the law, as such, the judgment referred to above by the learned counsel for the appellant would not come in the way of the respondent for initiating proceedings for eviction, as provided under section 17 of the Act.
11. ' Mr. Umar Farooq Khan has also vehemently contended that the respondent No,1 has parted with the possession under the agreement of sale with Qamar Jamal on 14-7-1984 and has received the full amount of Rs,1,25,000 in terms of Exh.O/1 and the appellant's brother was inducted as tenant. He further contended that the learned Rent Controller has rejected the application of the appellant for decision on special oath in terms, that they have not received the sale consideration from said Qamar Jamal. He further contended that even the signature on Exh.A/1 was not verified by the learned Rent Controller in order to arrive at a finding if the same was issued by the respondent No,1 in receipt of the amount.
12. ' The respondents' counsel met this contention by maintaining that the refusal by the respondents to take oath on plaintiff's demand has no penal consequences and the Court could not be precluded from deciding the case on merit. In support of his contentions, he referred the case of Rehmatullah v. Nasir Khan and 7 others 1991 M LD 1011.
13. 'In my view, the Court can decide the matter on special oath provided both parties are agreeable.
14. In absence of an agreement for decision on special oath, the Court cannot force an unwilling party for decision of special oath, as such this plea has no force.
15. 'Secondly the learned Rent Controller was not supposed to determine the issue whether respondents had agreed to sell the property to Qamar Jamal, the Controller having limited jurisdiction. In my view, once the fate of alleged sale agreement stand sealed by order, dated 22- 12-1998 of IIIrd Senior Civil Judge, Karachi, South, in Suit No,1384 of 1991, filed by Qamar Jamal Khan against respondent Mrs. Sarwat Akhtar and D.H.A. For specific performance of contract, whereby the suit was dismissed under the provision of Order 17, rule 3, C.P.C., the same cannot be agitated before a forum of limited jurisdiction. No restoration application was filed, appeal has not been preferred as maintained by the respondents' counsel. This fact has not been controverted by the counsel for the appellant. Thus, the plea that said Mrs. Qamar Jamal Khan is landlady and owner by agreement of sale and she inducted brother of the appellant, Nisar Ahmed Sherani is also not available to the appellant. The learned Rent Controller has concluded that the respondent Mrs. Sarwat Akhtar is the landlord and Gul Zameen Khan is the tenant and the appellant a sub-lettee.
16. ' In my view, the finding recorded by the learned Rent Controller is sound proper and based on the evidence brought on record, particularly the following facts:--
(1) The proceedings of Suit No,1585 of 1987 in the Court of XIIIth Civil Judge, Karachi South filed by the respondent No,2 against the respondent No,1 for injunction (Annexure "A/4").
(2) Tenancy agreement, dated 27-2-1984 and 30-8-1987 between the respondent No,1 and respondent No,2.
(3) Rent Case No,68 of 1987 filed respondent No,1 against respondent No,2(c).
(4) The plea taken by the appellant in Suit No,1665 of 1987 was that they were inducted as tenant in 1983 by Qamar Jamal much before the alleged agreement of sale in her favour, whereas in rent proceedings: a different plea was that taken Mrs. Qamar Jamal Khan inducted her brother Nisar Ahmed Sherani as tenant on 1-10-1986. The induction of the appellant's brother as tenant by Mrs. Qamar Jamal in the year 1983 much before the alleged agreement of sale is not considerable.
17. ' The learned counsel for the respondent has supported the impugned order and maintained that the appellant has denied the relationship of landlord and tenant between the respondents and claimed himself to be a tenant under third person viz. Qamar Jam'al, therefore, onus shifts on him to prove that he was the tenant of third person and who was his landlord. Qamar Jamal has not appeared in the witness-box to prove herself as owner/landlord. Her suit for specific performance of contract stand dismissed on 22-12-1998. The appellant failed to discharge the burden, therefore, the appellant cannot be allowed to defeat the right of respondent No,1 without proving the title of said Qamar Jamal and referred the observations of Abdul Qader Choudhry (as he Lien was) in Malik Abdul Qayyum v. Muhammad Hussain 1990 SCM R 1716 in the following words:-- "That onus continues to shift in civil matters i,e, the relationship of landlord and tenant having been denied by respondent No,1saying that he was tenant under one Kabul son of Fateh Khan, the onus, therefore, shifted to him and it was for him to prove that Kabul Khan was his landlord. Neither Kabul Khan entered the witness-box, although he was present during the proceedings, nor any step was taken by the respondent to produce Kabul Khan; that respondent No,1 did not himself claim the title of the property, but asserted that it belonged to a third person, therefore, he could not defeat the petitioner's right without proving the title of the property in the other person."
18. 'The plea that Qamar Jamal is the owner/landlord, who inducted the brother of the appellant as tenant has not been established, on the contrary, the dismissal of her suit falsified the stand taken by the appellant.
19. ' The upshot of the above discussion is that the appeal has no merits and the same is dismissed in limine with listed application.
20. ' These are the reasons of short order announced on 4-10-2000.