ABDUL SHAKOOR Versus ABDUL TAHIR KHAN

This First Rent Appeal has filed to challenge the order dated 21st December, 1985. passed by IIIrd Senior Civil Judge (West) and Rent Controller, Karachi.

2. Abdul Tahir Khan is landlord of premises No.A ‑20, Block "Q", North Nazimabad, Karachi, while the appellant is tenant @ Rs.650 per month as per agreement. dated 1st January, 1976. The rent case was filed on the ground of default, personal bona fide requirement. In the rent application, it is averred that appellant gave an undertaking in writing on 28‑1‑1980 before Sub‑Martial Law Administrator, Karachi, in which he stated that premises would be vacated by him on 15‑4‑1980.

3. The written statement was filed by the appellant in which he denied the allegations, but stated that he was harassed and he gave an undertaking before the Sub‑Martial Law Administrator as he was coerced to give such undertaking in writing and this undertaking was not voluntarily given but due to pressure.

(4) The Rent Controller framed the following issues:

(1) Whether the applicant is a wilful defaulter?

(2) Whether the applicant needs the premises in question?

(3) Whether the tenancy in question between the parties has ceased to be valid?

(4) What should the order be?"

Before the Rent Controller issue No. 1 regarding default was not pressed and issue No. 2 regarding personal bona fide requirement has been decided against the respondent‑landlord, but the rent application has been allowed on the ground that appellant gave an undertaking in writing that he would vacate the premises on 15‑4‑1980.

5. I, have heard Mr. Kanwar Mukhtar Ahmed, learned counsel for the appellant. It is contended that the appellant was forced to give undertaking in writing by the Martial Law Authority and this statement was not voluntary, therefore, has no force in the eyes of law. It is argued that issues of default and personal requirement have been decided in favour of the appellant. He has submitted that initially the agreement between the parties, which was executed in 1976, was for 2 years and on its expiry in the year 1978, the appellant continued to be the statutory tenant and rent was being accepted by the respondent upto filing of this case.

Mr. Sajjad Hussain, learned counsel for the respondent, has submitted that appellant himself made a complaint to the Martial Law Authorities against the respondent and both the parties settled their disputes before the Sub‑Martial Law Administrator where appellant promised to vacate the premises on 15‑4‑1980. As the statement was made in writing, therefore, he was bound to hand over the vacant possession on the above date.

6. The relationship and the rate of rent are not disputed. The issue of default was not pressed by the respondent before the Rent Controller and another issue for personal need has been decided against the respondent landlord. The entire impugned order is based on the statement, which was given by the appellant before the Sub Martial Law Administrator, Karachi. The complaint before the Sub Martial Law Administrator was filed by the appellant tenant, in respect of harassmert of the landlord. The undertaking given by the appellant before the SubMartial Law Administrator has not been denied, but it is submitted that this undertaking was due to harassment, which has no legal force. The Sind Rented Premises Ordinance came into force on 21st November, 1979 and prior to that matters were being settled by the Martial Law Authorities, under M.L.O. 20, but both the learned counsel have stated that Sub‑Martial Law Administrator has not passed any order under M.L.O.

20. Even otherwise after the promulgation of the Sind Rented Premises Ordinance, 1979, it was not within the jurisdiction of Martal Law Authorities to decide the rent cases. The only question in this rent case is an undertaking in writing given by the appellant. The respondent filed his affidavit‑in‑evidence before the Rent Controller and also examined the two witnesses, namely Abdul Wajid and Khawaja Ismail. Respondent Abdul Tahir Khan in his affidavit‑in‑evidence has only taken the ground of default and personal bona fide requirement, but his entire statement is silent about the A undertaking given before the Martial Law Authorities and so is the evidence of its two witnesses, who were examined by him in support of his case. The respondent has not taken this plea in his evidence though such averments were made in written statement. In the written statement the respondent categorically stated that this undertaking was obtained from him forcibly and this fact, as mentioned in the written statement was to the knowledge of the respondent. In spite of that respondent and his witnesses nowhere stated about this undertaking and it appears that they had dropped this plea. The Rent Controller has not also framed such specific issue, but in issue No. 3 he has considered, whether the tenancy has seized to be valid. From the record, as stated above, after 1978 on expiry of this agreement between the parties, the appellant continued to be the statutory tenant and the question of termination of tenancy could have also been decided by way of a rent application under the prevailing law. The matter was taken to Martial Law Authorities and such order has not been produced. According to the record available, it cannot be said that this writing was given before the Sub‑Martial Law Administrator under what circumstances. There is a force in the submission of the learned counsel for the appellant that writing was taken forcibly and it also happened in number of cases. However, the respondent from his own evidence and the evidence of the witnesses has not been able to prove that undertaking was given voluntarily as no such averments have been made in the affidavit‑in‑evidence.

For the reasons stated above I set aside the impugned order of the Rent Controller and allow the appeal with no order as to costs.

M.Y.H./A‑448/K Appeal allowed.