IN THE HIGH COURT OF SINDH

CIRCUIT COURT LARKANA

 

 

 

CP S 58 of 2017                   :           Mahraj Washdev vs. Srichand Lal

 

For the Petitioner                 :           Mr. Ghulam Dastagir Shahani, Advocate

 

For the Respondent            :           Mr.Syed Zamir Ali Shah, Advocate

                       

Date of hearing                    :           13.01.2022

 

Date of announcement      :           13.01.2022

 

 

JUDGMENT

 

 

Agha Faisal, J.  Briefly stated, the petitioner had filed Rent Application No.2 of 2015 before the Rent Controller Jacobabad and, vide judgment dated 21.4.2016, the same was allowed and eviction was ordered. In appeal[1],  being Rent Appeal No.1 of 2016, the learned District Judge, Jacobabad was pleased  to set aside the earlier order and also dismissed the rent application, hence, this petition.

 

2.         Learned counsel for the petitioner asserted that title to the relevant property vested with the petitioner. He also referred to two rounds of civil litigation between the parties in an effort to demonstrate the petitioner’s primacy over the relevant property. It was contended that while the respondent admitted to being a tenant of thePooj Hindu General Panchayat, Jacobabad, however, the said entity had denied the existence of any such relationship. He argued that the respondent was a tenant of the relevant property, hence, the Learned Rent Controller had rightly assumed jurisdiction andthe Impugned Judgment was otherwise than in accordance with law.

 

3.         Learned counsel for the respondent supported the Impugned Judgment and submitted that it is not the question of title that is to be determined in rent proceedings and that the primary question for the Court to consider was whether a relationship of tenant and landlord existed between the parties there before. It was contended that since no such relationship existed between the respondent and petitioner, therefore,the learned Appellate Court had rightly rendered the Impugned Judgment.

 

4.         Heard and perused.  The Impugned Judgment has been rendered on the premise that there is no demonstrable relationship of tenant and landlord between the parties. Therefore, the ambit hereof is confined to consider whether said premise is borne from the law and record.

 

5.         Petitioner’s counsel has unequivocally admitted that neither is there any rent agreement between the parties nor is there any receipt of any rent receivedinterse.  It was further stated that the respondent had never paid any rent to the petitioner and there are no receipts of any rent having been paid by the mother of the respondent to the petitioner.

 

            The relationship of landlord and tenant is defined in the Sindh Rented Premises Ordinance 1979 and unless the precepts thereof are qualified the Rent Controller may not entertain proceedings in such regard. Learned Appellate Court has observed that no relationship of tenant and landlord was demonstrated, hence, the assumption of jurisdiction by the Rent Controller was not in accordance with law. It is considered illustrative to reproduce the pertinent constituents of the ImpugnedJudgment herein below:

                       

“Point No.1                             Whether there is relationship of land-lord and tenant between the parties?

Point No.2                              Whether the respondent/applicant is in bonafide need of the property in question?

Point No.3                              Whether there is any illegality in impugned order?

Point No.4                              What should the Judgment be?


FINDINGS

Point No.1                              Not proved

Point No.2                              As under

PointNo.3                               Proved

Point No.4                              Rent appeal No.01/2016 is allowed

REASONS

10/-          Point No.1:

The burden lies upon the respondent/applicant to establish this point. The respondent/applicant has mentioned in memo of application before trial Court that actually the shop in question belonged to Bawa Khushhal Dass, which was inherited by Baba Ganesh Dass. The respondent further mentioned that Bawa Ganesh Dass had shifted to India in year 1958 and expired there. The respondent/applicant further mentioned in the application that said property was inherited by his mother, who died in year 2010, thereafter he inherited the same. He further mentioned in Para No.7 of the rent application that the appellant/ opponent had been inducted by the ancestors of respondent/applicant in the shop in question on the promise for returning the same whenever needed”. Surprisingly, the respondent/ applicant had not mentioned any year or month when the present appellant/opponent was inducted any shop in question. The respondent/applicant had re-produced the averment in affidavit in evidence. Furthermore, the respondent/ applicant or his witness had failed to depose a single word whether there was any agreement of tenancy between the present appellant/ opponent and the respondent/applicant in respect of the shop in question. The respondent/applicant was cross examined, who replied that, “I do not remember fin which year Bawa Ganesh Dass died, but he has breath his lost in India”. He further replied that, “I do not know whether after death of Bawa Ganesh, the record was mutated in the name of my mother in city survey record. Bawa Ganesh has probably expired in 1966. I do not know whether the official record of demised premises was not mutated from 1966 to 2014”. During course of arguments learned counsel for respondent was asked whether there was any agreement of tenancy between the parties, however, he failed to reply satisfactory, as nothing is on the record to show that there is any tenancy agreement between the present appellant and respondent. Furthermore, the respondent/applicant had not mentioned a single word in memo of rent application that he or his forefathers had ever collected any rent amount from the present appellant or from his father. If the version of the respondent/applicant considered as true, that this property belonged to Bawa Ganesh, who had migrated to India in 1958, then question arises in prudent mind how this property was mutated in the name of the mother of respondent/ applicant, as after partition, thousands of Hindus families had migrated from Pakistan to India and millions of Muslims had migrated from India to Pakistan, leaving their properties as EVACUEE, During course of arguments respondent’s counsel was asked after migration of Bawa Ganesh to India, whether this property was not become Evacuee Property, however, respondent’s counsel failed to reply satisfactory. The respondent/ applicant also produced his witness before trial Court, namely, Madan Das, who replied that, “It is correct that Bawa Ganesh Das did not make any Will in my presence”. He further replied that, “I have never seen Srichand as tenant in the demised property”. The respondent/applicant produced another witness, namely, Heeromal, who replied in cross examination that,  “I do not know from which time period Srichand is tenant of demised premises”, From the replies given by the present respondent and his witnesses during course of cross examination, they have miserably failed to establish that present appellant had ever been tenant of present respondent/applicant in the shop in question. In the light of above discussion, the respondent has failed to establish this point. Therefore, this point Is determined as “not proved”

11/-          Point No.2:

                The burden Iles upon the respondent/applicant to establish this point. As discussed in foregoing Para, the respondent/applicant has failed to establish relationship of land-lord and tenant with the present appellant during his evidence before trial Court. Furthermore, the main contention of the respondent's counsel was that the present appellant has admitted himself as tenant of the Hindu Panchayat Committee, who has refused to accept shop in question as his property. Even, if the appellant has admitted himself as tenant, but he has never admitted himself as tenant of the present respondent/applicant at any forum, whereas the present respondent/applicant has failed to establish the relationship of land-lord and tenant with the appellant. Therefore, the question of bonafide need does not arise at all. However, if the respondent/applicant further claims himself as owner of the property, he may approach the competent Civil Court for declaration of his rights. As for as contentions of respondent’s counsel that appellant used to pay rent to Hindu Panchyat Committee is concerned, however, the respondent had never claimed that he purchased the shop from the Hindu Panchayat Committee. Therefore, question of transfer of landlord of shop to respondent does not arise. That, case law referred by respondent’s counsel having different facts and circumstances are not applicable to this rent appeal. In the light of above discussion, this point is answered accordingly.

12/-          Point No.3:

The burden lies upon the appellant to establish this point. The main contention of the appellant’s counsel was that there was no relationship of landlord and tenant between the parties. This fact is also established from the averments of the respondent, who stated that, "the opponent/appellant was inducted by ancestors of applicant in shop in question on promise to vacate the same whenever needed. The word “ANCESTOR” defined in Oxford Dictionary that a person in your family, who alive a long time ago, or someone from whom you are descended (but usually more than remote than a grandparent). However, respondent had not stated that appellant was inducted as a tenant, therefore, the observation of the trial Court that there was relationship of landlord and tenant between the parties is quite illogical, thus the Impugned order passed by Rent controller is illegal. Hence this point is determined as “proved”.

13/-          Point No.4:


                In the light of discussion made in points No.1 to 3, I am of the view that; the appellant has made out his case for interference with the impugned order dated 21.04.2016 passed by 1st Rent Controller Jacobabad in Rent Application No.02/2015. Therefore, | hereby allow this rent appeal and set-aside the impugned order dated 21.04.2016 and thereby also dismiss the Rent Application No.02/2015. The parties shall bear their own costs.

 

6.         The title in respect of property is not in issue before this Court, therefore, it is considered proper not to proffer any observation in such regard. In so far as the issue of tenant and landlord relationship is concerned, this Court finds no infirmity with the conclusion of the learned Appellate Court that the same has not been demonstrated[2]. The memorandum of application filed before the learned Rent Controller is available on file and the same is devoid of any assertion of the respondent being a tenant of the petitioner. On the contrary paragraph 7 thereof explicitly states otherwise. The petitioner's counsel remained unable to demonstrate any privity between the petitioner and the respondent, hence, failed to establish as to how the jurisdiction of the learned Rent Controller was merited.

 

7.         While the petitioner remains at liberty to agitate any proprietary and / or possessory rights with respect to the relevant property before the Court of competent jurisdiction, this Court concurs with the learned appellate court that no case was ever made it to agitate the lis before the learned Rent Controller.

 

8.         The ambit of constitutional petition is not that of a subsequent forum of statutory appeal and is restrictedinter alia to appreciate whether any manifest illegality is apparent from the judgment impugned. It is trite law[3] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.

 

9.         Article 199 of the Constitution contemplates the discretionary[4] writ jurisdiction of this Court and the said discretion may be exercised in the absence of an adequate remedy. In the present matter admittedly there existed an adequate remedy, however, the same was duly availed / exhausted and no case has been set forth before us for invocation of the writ jurisdiction.

 

10.       In view hereof, we are constrained to observe that no case has been set forth for the invocation of the discretionary writ jurisdiction of this Court, hence, this petition is hereby dismissed.

JUDGE

shabir

 

 

 


[1]Vide judgment dated 07.01.2017 ("Impugned Judgment").

[2]Afzal Ahmad Qureshi vs. Mursaleen reported as 2001 SCMR 1434; Nairoz Khan vs. Zulakha reported as 1992 CLC 1930.

[3]Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.

[4] Per Ijaz Ul Ahsan J. in Syed Iqbal Hussain Shah Gillani vs. PBC & Others reported as 2021 SCMR 425; Muhammad Fiaz Khan vs. Ajmer Khan & Another reported as 2010 SCMR 105.