Judgment Sheet

THE HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD

Constitutional Petition No. S – 160 of 2016

            Petitioner                   :   Muhammad Tahir,

    through Mr. Riffat Ali Shah Advocate.

            Respondent No.1    :   Gulab, called absent.

            Respondent No.2    :   Addl. District Sessions Judge Tando Adam,

                                                    through Mr. Allah Bachayo Soomro,

                                                    Addl. Advocate General, Sindh.

            Date of hearing        :   06.12.2019.

J U D G M E N T

NADEEM AKHTAR, J. – Through this Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner / landlord has impugned judgment dated 14.11.2015 delivered by learned Additional District Judge Tando Adam, whereby Rent Appeal No.05/2014 filed by respondent No.1 / tenant against his eviction was allowed and the eviction order dated 28.08.2014 passed by learned Rent Controller Tando Adam in the petitioner’s Rent Application No.10/2013 was set aside.

2.         Relevant facts of the case are that an eviction application under Section 15 of the Sindh Rented Premises Ordinance, 1979, was filed by the petitioner against respondent No.1 seeking his eviction from shops bearing C.S. Nos.106 and 107, Ward ‘C’, situated at Jilani Street, Ansari Para, Taluka Tando Adam, District Sanghar (‘demised premises’) on the ground of default in payment of monthly rent. It was the case of the petitioner that the demised premises were purchased by him from his mother Mst. Hifazan on 18.10.2011 whereafter he became the exclusive owner thereof ; respondent No.1 was his tenant in respect of the demised premises ; he had inadvertently filed Rent Application No.02/2013 against the son of respondent No.1, which was dismissed ; thereafter he sent a legal notice dated 24.10.2013 to respondent No.1 calling upon him to execute a fresh rent agreement with him in respect of the demised premises and also to pay rent in respect thereof at the rate of Rs.6,000.00 per month, or in the alternative to vacate the demised premises within fourteen (14) days from receiving the said legal notice ; respondent No.1 did not execute fresh rent agreement nor did he pay the rent to him despite his repeated demands ; and, in view of the deliberate and willful default committed by respondent No.1, he was liable to be evicted from the demised premises.

3.         The eviction application was contested by respondent No.1 by filing written statement wherein he denied the relationship of landlord and tenant between the parties. It was averred by him that he was the tenant of the petitioner’s mother Mst. Hifazan who was the original owner of the demised premises ; during her lifetime, the petitioner’s elder brother Sirajuddin used to collect the rent from him and after her death, the said Sirajuddin became the owner of the demised premises and executed a rent agreement in respect thereof with him ; and, in view of the said agreement, he was the tenant of Sirajuddin and had been paying monthly rent to him on regular basis. In addition to the above, it was also averred by respondent No.1 that the previous eviction application against his son was not filed by the petitioner inadvertently as the petitioner had claimed therein that the son of respondent No.1 was his tenant, who filed his written statement in the said previous eviction application whereafter it was dismissed by the learned Rent Controller ; and, as such the second eviction application against respondent No.1 was not maintainable.

4.         In view of the divergent pleadings of the parties, issues were settled by the learned Rent Controller including the main issues with regard to the relationship of landlord and tenant between the parties and the default in payment of monthly rent. Both the parties examined themselves and produced relevant documents in support of their respective claims. In addition to their own evidence, the petitioner produced two other witnesses ; and, respondent No.1 produced one other witness viz. Sirajuddin, the elder brother of the petitioner and elder son of the original owner Mst. Hifazan, who had executed the rent agreement in favour of respondent No.1 and to whom rent was being paid by respondent No.1 under the said agreement.

5.         After evaluating the evidence produced by the parties and hearing their respective submissions, it was held by the learned Rent Controller that the petitioner had produced the title document executed in his favour by his mother in respect of the demised premises ; the petitioner’s title was disputed by respondent No.1 and his witness viz. Sirajuddin ; the said Sirajuddin, who was the real brother of the petitioner, had disputed the petitioner’s title on the ground that he (Sirajuddin) became the owner of the demised premises by virtue of the gift orally made in his favour by his mother ; such claim of Sirajuddin was baseless as he had admitted that there was no mutation entry in his favour in the Record of Rights ; title of the petitioner could not be challenged in rent proceedings as such question could be agitated before and decided by only a civil Court ; and, respondent No.1 refused to execute a fresh rent agreement in favour of the petitioner and also did not pay rent to him even after receiving his legal notice. In view of the above findings, both the above main issues regarding the relationship of landlord and tenant between the parties and the default in payment of rent were decided by the learned Rent Controller in favour of the petitioner, and accordingly his eviction application was allowed.

6.         In the appeal filed by respondent No.1 against his eviction, the learned appellate Court did not agree with the findings of the learned Rent Controller. It was held by the learned appellate Court that the earlier eviction application filed by the petitioner against the respondent No.1’s son was dismissed, but no appeal was filed against such dismissal ; maintainability of the second eviction application by the petitioner against respondent No.1 was not discussed or decided by the learned Rent Controller ; there was a dispute between brothers (petitioner and Sirajuddin) with regard to the title of the demised premises and a Suit viz. F. C. Suit No.83/2014 in this behalf was pending before the Senior Civil Judge Tando Adam ; and, till the decision by the competent Civil Court with regard to the title of the demised premises, the learned Rent Controller had no jurisdiction to decide the petitioner’s eviction application. After coming to the above conclusion, the appeal filed by respondent No.1 was allowed by the learned appellate Court and the order of his eviction passed by the learned Rent Controller was set aside.

7.         Record shows that as per the bailiff’s report dated 08.08.2016 submitted by learned Senior Civil Judge Tando Adam along with his report, respondent No.1 was duly served. As he remained absent on all dates of hearing in the present petition despite proper service, service upon him was held good vide order dated 28.10.2019. Accordingly, I have heard learned counsel for the petitioner and have also examined the material available on record, particularly the pleadings and evidence of the parties and the order and judgment passed by both the learned courts below.

8.         Perusal of the eviction application filed by the petitioner and the evidence led by him shows that he had not disclosed the period for which or the date from which respondent No.1 had allegedly committed default. Except for a bare and vague assertion that respondent No.1 had committed default, no details whatsoever in relation to the alleged default were disclosed by him before the Rent Controller. In the absence of the above material particulars, no finding could be given by the Rent Controller on the issue of alleged default. It may be noted that when default is alleged by the landlord, he is duty-bound under the law not only to disclose the rate of rent for the defaulted period, but also the period of default. The date when the default is constituted is of vital importance in order to ascertain the accrual of cause of action and maintainability of the eviction application. Needless to say the burden to prove that the tenant has committed default is always upon the landlord. Therefore, in the absence of the date when the default was constituted and the period of default, the landlord cannot discharge such burden, and as such he will not be entitled to seek eviction of his tenant on the ground of default. In view of the above, the eviction application filed by the petitioner on the ground of default was not maintainable as it was the sole ground on which eviction of respondent No.1 was sought by him. The question of maintainability of the petitioner’s eviction application ought to have been decided by the learned Rent Controller in view of the above at the very initial stage. This important aspect of the case has not been noticed or discussed by any of the learned Courts below.

9.         As regards the preliminary issue of relationship of landlord and tenant between the parties, it is a matter of record that the dispute with regard to the title of the demised premises was pending before the Civil Court at the relevant time, as noticed in the impugned judgment by the learned appellate Court. However, the fate of the said dispute is not available on record, nor is learned counsel for the petitioner aware of the same.

10.       As a result of the above discussion, this petition and the application pending therein are dismissed with no order as to costs. However, the petitioner may seek his remedy against respondent No.1 in accordance with law if he succeeds before the Civil Court in establishing his title, and provided the cause of action, if any, against respondent No.1 still subsists.

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       J U D G E