Mst. MISKINA JAN vs REHMAT DIN

' NASIR ASLAM ZAHID, J.---By judgment, dated 28-1-1990 of a learned Single Judge of the Sindh High Court, appellant's First Rent Appeal was dismissed. Ejectment order had been passed by the Rent Controller against the appellant after striking off her defence for non-compliance of the order passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979, which order was maintained by the High Court. Leave to appeal was granted to the appellant by order, dated 8-4- 1990 of this Court to consider whether the issue about the relationship of landlord and tenant between the parties should have been framed and decided before passing the rent order under section 16(1). We have heard Mr. Niaz Ahmed Khan, Advocate Supreme Court for the appellant and Mr. Muzaffar Hassan, Advocate-onRecord for the respondent.

2. Rent application had been filed by the respondent claiming to be the sole owner of the property bearing 351, Daryabad, Lyari Quarters, Off Abdul Rashid Road, Karachi, having acquired the same from the previous owner Mst. Akhtari Begum. According to the respondent, the appellant was occupying a portion of the said property as a tenant at a monthly rent of Rs,150 and that she had admitted herself to be the tenant of Mst. Akhtari Begum from whom the premises were transferred in the name of the respondent. It was alleged by the respondent that after the transfer of the property in his name he gave a legal notice to the appellant but she failed to pay the monthly rent.

Ejectment was sought on the ground of default in the payment of rent.

' In the written statement filed by the appellant, relationship of landlord and tenant between the parties was denied. It was, inter alia, pleaded that from the previous owners she had purchased the property by an oral sale agreement and she was in occupation of the premises for over 14 years and a suit for specific performance was already pending in the Civil Court being Suit No,430 of 1987 which was filed on 2-3-1987. It was also averred that the respondent had suppressed material facts inasmuch as in an application made in April 1987 to the Illaqa Police Station, the respondent had stated that the appellant was her licensee and had refused to vacate the premises and that the respondent had also filed an application under Order I, Rule 10 read with section 151, C.P.C. In the civil suit filed by the appellant before the Civil Court, for being impleaded as an Intervenor. Service of notice under section 18 of the Ordinance was also denied.

' Instead of framing and deciding the issue relating to the relationship of landlord and tenant between the parties, on an application filed by the respondent under section 16(1) of the Ordinance, the Rent Controller passed the rent order, dated 27-4-1988 directing the appellant to deposit arrears of rent at the rate of Rs,150 per month for the period from 1-6-1986 to 30-1-1988 amounting to Rs,3,300 within 60 days and a further direction for deposit of future rent was also given. The rent order not having been complied with by the appellant, an application under section 16(2) of the Ordinance was filed by the respondent and, by order, dated 15-10-1988, the Rent Controller, although noticing legal objections of the appellant, allowed the application, struck off the defence of the appellant and ordered her ejectment. First Rent Appeal filed by, the appellant was dismissed by the impugned judgment, dated 28-1-1990 by a learned Single Judge of the High Court holding that the appellant was legally bound to comply with the rent order.

3. In this case certain pertinent facts escaped the attention of the High Court. The ejectment application had been filed in September, 1987 but, six months earlier same time in February/March, 1987, the appellant had filed a suit being Suit No,430/87 for specific performance in the Civil Court at Karachi against one Bashir and another. In that suit, an application under Order I, Rule 10, C.P.C.

Was filed on 20-8-1987 by the respondent claiming that he was the owner of the property and the defendants in that suit had no interest in the property and, therefore, it was necessary and proper that he should be impleaded as a defendant in the suit. In para. 7 of his application, dated 20-8- 1987, the respondent stated as follows:-- "That this application is made in the interest of justice, and to effectually and fmally adjudicate upon the dispute involved in the suit with regard to the suit property and thus prevent needless multiplicity of suits."

' This application was allowed and the respondent was impleaded as defendant in the suit filed by the appellant.

' The other important fact which was not considered by the High Court, is that on 18-4-1987 i.e, after the filing of the suit by the appellant and before the filing of the ejectment application in September 1987 by the respondents, Rehmat Din (respondent) addressed an application to the S.P.

(West), Karachi in which he complained that a fraud had been played upon the appellant. It was stated that the appellant who was known to the respondent had told him that she had been thrown out by the husband and she would be grateful if he would allow her to stay in respondent's house for a month or so as she had no other place to go and she promised to leave the house as soon as she was able to get a suitable accommodation and, on this request, on compassionate grounds, he allowed her to stay in his house but, instead of leaving the house, after a month or so her husband also came to stay with her. A request was, therefore, made for ejectment of the appellant and her husband.

' If what is stated in the said application to the S.P. Is correct then till April, 1987 the appellant was only a licensee and not a tenant in the premises and if at all her status had changed into that of a tenant, this must have happened sometime between the date of making of the said application to S.P. West Karachi in April 1987 and September 1987 when the ejectment application was filed.

4. No doubt the suit filed by the appellant had been dismissed but admittedly her appeal is pending in the District Court and in view of the facts mentioned above, we are of the view that this was a fit case where before deciding the application under section 16(1) of the Ordinance an issue relating to the relationship of landlord and tenant was framed and decided and the passing of the rent order in the circumstances was not warranted by law. Order of ejectment is also invalid.

5. As a result, this appeal is allowed, the impugned orders of the Rent Controller and the High Court are set aside and the case is remanded to the Rent Controller who shall first frame and decide the issue whether relationship. Of landlord and tenant exists between the parties and thereafter take further action as may be required under the law.

' There shall be no order as to costs.