2019 CLC 1410 KARACHI-HIGH-COURT-SINDH

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MUHAMMAD AFSAR VS MUHAMMAD ANWAR S.15---Civil Procedure Code (V of 1908), O.XLI, R. 27---Ejectment application---Denial of tenancy by the occupant/tenant---Pendency of civil suit---Non-production of proof of entitlement by tenant---Effect---Non-disposal of application for additional evidence under O. XLI, R.27, C.P.C. by the Appellate Court---Legality---Petitioner/landlord contended that Appellate Court had wrongly set aside eviction order passed by the Rent Controller as tenant failed to prove his entitlement regarding rented premises---Tenant contended that he was in possession of the premises being shareholder/owner and in such regard civil suit was pending between the parties---Validity---Record revealed that tenant could not produce any document before the two courts below regarding his claim over the premises-Tenant, however, admitted that he was in possession of a portion of the premises since long but he could not substantiate his right of possession and he had no title document in his favour---Such occupant, by law would be considered as "tenant"---Non-disposal of the application under O. XLI R. 27, C.P.C. by the Appellate Court would not make any difference as giving permission for additional evidence was discretion of the Court and non-disposal of such application transpired that Appellate Court had not used its discretion in favour of the tenant---Fact that tenant had initiated civil proceedings by filing suit to establish his right would make no difference, for as long as the tenant had not succeeded in establishing his right before the competent court , his status would remain as "tenant"---If tenant succeeded in getting any relief from the competent civil court, he could seek possession of the property in question under the decree so obtained, therefor, mere pendency of civil suit was not a ground for refusal of the ejectment of tenant---High court set aside the impugned order passed by Appellate Court---Constitutional petition was allowed accordingly.