2024 YLR 532

JUDGMENT

IQBAL AHMED KASI, J.---This First Appeal under Section 15 of the Rent Restriction Ordinance, 1959, is directed against the judgment of Civil Judge/ Rent Controller, Hub, ("the trial Court") dated 19th February 2021 ("the impugned judgment") whereby, the eviction application filed by the respondent/ applicant was allowed and the appellant/ respondent directed to handover the vacant possession of the Shop No.2, situated in Rind Market Hub ("shop in question") to the respondent/applicant within 30 days and the appellant/ respondent was also directed to pay the outstanding rent to the respondent/ applicant @ Rs.10,000/- per month from January 2020, till vacation of the shop and also to clear all the utility bills up to date.

2. The facts of the case are that the respondent/applicant is owner of the shop in question, which was hired by the appellant/respondent on an oral agreement, on monthly rent of Rs. 10,000/-, with increase of rent as per market rate. The eviction of the shop in question was sought on the basis of non-payment of rent by the appellant/respondent for about three months, and also on the basis of personal bona fide use.

3. The appellant/respondent by way of filing rejoinder to the eviction application controverted the instance of the respondent and contended that he had purchased the shop in question from one Najam-ud-Din Kakar, in the year 2007 and since then he is enjoying the shop in question as a owner and there is no relationship of landlord and tenant between the parties.

4. The divergent pleadings resulted following issues:

"1. Whether there exists relationship of land lord and tenant between applicant and respondent?

2. Whether the shop in question is required by the applicant for his own business?

3. Whether the shop in question is required by the applicant for its reconstruction?

4. Whether the respondent is not paying the monthly rent to the applicant @ Rs.10,000/- per month since January 2020?

5. Whether the applicant is entitled for the relief claimed for?

6. Relief?

5. The respondent / applicant to establish his case, produced AW-1 Muhammad Aslam, AW-2 Abdul Samad, AW-3 Khan Muhammad, AW-4 Nawaz, AW-5 Shakal, AW-6 Nazir Ahmed Kanoongo, and lastly recorded his statement on oath. In rebuttal, the appellant / respondent produced RW-1 Ismail Khan, RW-2 Muhammad Umer, RW-3 Najam-ud-Din and lastly he recorded his statement and produced sale agreement Exd/1.

6. The learned Rent Controller while resolving the main issue in favour of the respondent / applicant and consequently ordered the ejectment of the appellant/respondent.

7. The learned counsel for the appellant contended that the trial Court has failed to frame proper issues and discuss it on the strength of available record; that the trial Court while deciding the issue with regard to relationship of the appellant and respondent, has failed to consider the important aspects of the case, as the respondent alleged tenancy of appellant as a result of legacy from previous owner but failed produce previous owner as a witness, nor brought any monthly receipt on record to establish relationship of landlord and tenant; that the impugned judgment, passed by the Rent Controller is result of misreading of evidence and misconception of law, hence liable to be set aside.

8. The learned counsel for the respondent contended that the respondent has successfully proved the ownership of the shop in question coupled with relationship between the parties as landlord and tenant; that the trial Court has rightly reached to a conclusion that the appellant is a bad paymaster, as such, was rightly passed orders for vacation of the shop in question with payment of previous rent amount; that the trial Court has passed a sound reasoning judgment, after appreciation of the evidence, available on record, as such, warrants no interference by this Court.

9. I have heard the learned counsel for the parties and have gone through the record of the case, which reveals that, the vital question which arises for determination is that whether or not, Rent Controller, had jurisdiction in the matter in controversy in this case. Ordinarily, it is for the Civil Court to determine whether and, if so, what jural relationship exists between the litigating parties. The Balochistan Urban Rent Restriction Ordinance, 1959, was promulgated to control some of the terms and incidents of the relationship of landlord and tenant. For the Rent Controller to exercise jurisdiction under the provisions of the Balochistan Urban Rent Restriction Ordinance, 1959, there must be a preexisting relationship of landlord and tenant between the parties, the Rent Controller cannot assume jurisdiction in the matter. An eviction order passed by a Rent Controller against the person in possession of the premises, who is not a tenant, would be an order without jurisdiction. If a person in a possession of the premises is not a tenant, the owner of the premises would be entitled to institute a suit for ejectment in the Civil Court against him. The provisions of Balochistan Urban Rent Restriction Ordinance, 1959, are attracted only where a person in possession of the premises is a tenant. In the case in hand, the appellant claims to have purchased the shop in question from one Najam-ud-Din, through a sale / purchase agreement Ex.d/1, even though, the Ex.d/1, is neither a registered document, nor the rented premises has been mutated on the name of the appellant. Record reveals that the DW-1 and DW-2, appeared in the witness box, categorically stated that the shop in question had been purchased by the appellant and he is occupying the same having purchasery rights.

10. The burden of issue relating to relationship of landlord and tenant is upon the shoulder of respondent No. 1. The respondent No.1 to prove his contention, produced as many as six AWs and got recorded his own statement. The AW-1 admitted in reply to question No.5 that he has not seen any tenancy agreement between the appellant and respondent No.1. He further affirmed that he did not saw any tenancy agreement between the previous owner and appellant. He further deposed that he has not seen any receipt of rent regarding tenement. Rest of the AWs also affirmed that they have not seen any rent agreement, or any rent was paid in their presence. It is worthwhile to mention here that prior to the instant eviction application, the previous owner namely Mir son of Mazaro, also filed an eviction application against the appellant, but the said eviction application was withdrawn unconditionally. The claim of respondent No.1 that he purchased the shop in question along with other shops from its previous owner i.e. Mir son of Mazaro, and in this behalf the mutation No.18829 (Ex.A/6-A) was produced. The respondent No.1, while appearing in witness box stated that he purchased the shop in question along with other shops, in the month of November, 2019, while as per Ex.A/6-A, the mutation was affected on his name on 01.01.2020. He also deposed in reply to question No.9 that he never seen any rent agreement or rent receipt regarding the shop in question with the appellant and previous owner.

11. Assuming that there was no dispute, as the respondent No.1 was the owner of the rented premises, it needs to be determined as to whether the respondent No.1 could have invoked the jurisdiction of the Rent Controller in order to seek appellant's eviction from the rented premises, the respondent No.1 in his cross-examination had deposed that appellant had not paid any rent at any stage to him. The respondent No.1 has failed to bring on record any evidence to prove that the appellant had paid rent at any stage to him. Since it was the respondent No.1, who had invoked the jurisdiction of the Rent Controller, it was obligatory upon him to prove the existence as to the factum of relationship of landlord and tenant between him and the appellant. The respondent No.1 neither produced nay independent witness, nor produced any rent receipt to show that such a relationship exists between the appellant and respondent No.1. Since an eviction order can only be passed by the Rent Controller against a tenant or a person who has been put in possession of the rented premises by the tenant, it is essential for the eviction to prove that the person whose eviction is sought is in occupation of the premises in his capacity as a tenant and none other. There are other remedies available under the law to the owner of immovable property to have an unlawful occupant or a trespasser, who is not a tenant evicted from such property.

12. In view of the described circumstances, the existence of some mutation entry in the Record of Right in the name of respondent No.1 was of less benefit to the respondent in eviction proceedings, as unable to establish his status as of landlord and status of the appellant as a tenant in the questioned premises/shop. In the stated circumstances it is always advisable for the parties to approach a Court of competent jurisdiction to establish a clear title in their names to enable them to seek for eviction or possession, as the case may be. The trial Court was not right to place reliance on the mutation entry, in absence of the evidence which could connect the parties with the shop in question, in their status of landlord and tenant. The Hon'ble Supreme Court of Pakistan, in case titled Rehmatullah v. Muhammad Ali (1983 SCMR 1983), has already determined the principle in such like case, which reads as under:

"It has already been held that when the decision of the issue regarding relationship of landlord and tenant depends solely and not only incidentally on question of the ownership and title to the property and it will not be possible for the Controller to decide the case without deciding the basic question involved regarding title, then in such like case it would not be appropriate to evaluate the situation by observing that the decision on question of title was only tentative. It has also been observed that the requirement of the relevant law contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking ejectment. The decision of main issue depends directly on the decision regarding title in the present case."

Thus, in view of above dictum laid down by the Hon'ble Supreme Court of Pakistan, in the light of the facts and circumstances discussed herein above, I am inclined to allow the instant appeal, as such, the impugned judgment dated 19th February 2021, passed by the Civil Judge/Rent Controller, Hub, is set aside and subsequently, the eviction application filed by the respondent No.1 before the trial Court stands dismissed and there shall be no order as to cost.