IN THE HIGH COURT OF SINDH AT KARACHI
C.P. NO.S-972/2010
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Order with signature of Judge
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PRESENT:
MR. JUSTICE FAHIM AHMED SIDDIQUI
Petitioner: Dr. Shabbir Hussain Hyderi
Through Mr. Muhammad Ali Waris Lari, advocate
Respondents. None present for
respondents Syed Rizwan Hussain Rizvi & others
Date of hearing: 07.12.2016
Date of Judgment: _________
JUDGMENT
FAHIM AHMED SIDDIQUI, J: The petitioner was ejected from the premises under a rent proceeding initiated against him by the respondent No.1. The ejectment order of learned Rent Controller-I, Karachi Central in rent case No. 833 of 2006 and Judgment of Additional District Judge-IV in FRA No. 261 of 2007 is challenged in the instant petition.
2. The facts of the case in the nutshell are that the petitioner filed a civil suit bearing No. 431 of 2005 for the permanent injunction before Senior Civil Judge-I, Karachi Central in which he took plea that he was the lawful owner/purchaser/tenant of Flat No. E-9, Haroon Plaza, Sector 11/1, North Karachi. The petitioner disclosed in the said suit that he had entered into an agreement dated 31-10-2004 with the respondent No. 1 regarding the aforesaid property and paid half of the amount of the sale consideration to him. It is alleged in the said suit that the respondent No. 1 became dishonest and he was trying to dispossess the petitioner from the said property, therefore, he approached to the Court. The respondent No. 1 filed WS and subsequently, the trial court directed that the petitioner not to be dispossessed without due course of law. The respondent No. 1 filed rent case No. 833 of 2006 before the learned Rent Controller-I, Karachi Central in which an ex-parte ejectment order was passed. According to petitioner, he did not receive the notice of rent case as well as subsequent execution application and the petitioner was ejected from the said property when he was not at home. The petitioner challenged the order of learned Rent Controller in FRA bearing No. 261 of 2007 which was dismissed by the learned Addition District Judge-IV, Karachi Central vide judgment dated 30-03-2010. Meanwhile, the petitioners filed a civil suit bearing No.4 of 2007 for specific performance of contract against the respondent No. 1 before Senior Civil Judge-IV, Karachi Central which was dismissed vide judgment dated 05-10-2007. He challenged the said judgment under civil appeal No. 138 of 2007 which was decided by Additional District Judge-I, Karachi Central on 15-12-2008, which was allowed and the suit of the petitioner was decreed. The respondent No. 1 preferred a Revision Application No. 20 of 2009 before this Court in which a stay order was passed but the same was recalled vide order dated 20-10-2014 and subsequently the entire R.A. was dismissed for non-prosecution vide order dated 5-8-2015. The petitioner being respondent in disposed of R.A. No. 20/2009 filed a CMA in which he got directions vide order dated 07-09-2016 that the said R.A be tagged with the instant petition.
3. The matter was heard at length and during the course of arguments, Mr. Muhammad Ali Waris Lari referred the order of recalling of stay order and final disposal of RA No. 20/2009. He submitted that the suit of the petitioner bearing Suit No. 4 of 2007 is decreed under the verdict of the appellate court in Civil Appeal No. 138 of 2007. He contended that after the dismissal of RA No. 20/2009, the verdict of appellate court attained finality. He submitted that the petitioner had filed execution application before the trial court being Ex. No. 8/2016. According to him, as the appellate court has decided the case in favour of his client, therefore, the verdict of appellate court prevails on all orders and judgments in respect of the property in question. He contended that as the petitioner has been declared as legitimate and lawful purchaser/owner, therefore, the question of the relationship of landlord and tenant is vanished. He also submitted that the petitioner was forcefully ousted from the premises while his suit was pending but now when the litigation before the civil court is ended in his favour, the instant constitutional petition should be allowed and re-induction of the petitioner be directed.
4. No one is appearing for respondents in spite of notice; and as per order dated 25-04-2016, notice was issued to respondent-1 through SHO. As per report of SHO, the respondent-1 is not available/traceable at the given address and the property in question is occupied by a person namely Ghulam Mohiuddin, who claimed that he had purchased the property from one Naveed Khan and residing therein with his family since last 6/7 months and he did not know respondent No. 1.
5. It is now well settled under the dictum of several celebrated cases that an ejectment petition under the Rent Laws and a suit for specific performance by a tenant are two distinct proceedings. The effect of ejectment order cannot be softened due to the mere pendency of a civil suit on the basis of an agreement to sell unless the tenant succeeded in getting relief from a competent civil court. If an ejectment order is passed against a tenant, the same is necessarily required to be executed in letter and spirit. However, if succeeds in his litigation before civil court, the tenant can get the possession restored through execution of his decree. In the case reported as Iqbal and 6 others v. Mst. Rabia Bib and another (PLD 1991 SC 242), the Apex Court observed as under:
"Be that as it may, in some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by 'landlord; but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and faith the litigation for a long time even for decades. In this case, it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate---though of course he would be entitled to any easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani (PLD 1984 Supreme Court 17), Allah Yar and others v. Additional District Judge and others (1984 SCMR 741) and Province of Punjab v. Mufti Abdul Ghani (PLD 1985 SC 1)."
6. In the instant matter, the petitioner was evicted from the premises in question under the order of learned Rent Controller which was subsequently upheld in FRA. However, he continued prosecuting respondent in the civil proceeding and succeeded in getting a decree in his favour regarding the premises in question. In complaisance of the order dated 07-09-2016, the disposed of R.A. No. 20/2009 is tagged with the instant constitutional petition, therefore, I got ample opportunity to scan the record of the same which certainly had some nexus with the instant petition.
7. It is cleared from the record of R.A. No. 20/2009 that the litigation before Civil Court in respect of Specific Performance of Contract was ended in favour of the petitioner under the verdict of the lower appellate court. The said finding of Additional District Judge was challenged by the respondent No. 1 in the aforesaid revision application, which is now dismissed. Meaning thereby that the order of the lower appellate court is now in the field by virtue of which the petitioner is declared as purchaser and owner of the property in question. The crux of instant petition is the dispute of relationship of landlord and tenant, and now this point is resolved as the petitioner is successful in establishing his status of purchaser/owner before a competent civil court. In view of the above discussion, I allow the instant petition and set aside the judgment dated 30-03-2010 passed by learned Additional District Judge-IV, Karachi Central in FRA No. 261/2007 as well as the order dated 14-11-2007 passed by learned Rent Controller-I, Karachi Central in rent case No. 833/2006. As far as the question of re-induction of the petitioner in the premises is concerned, for the same he is at liberty either to approach the learned Rent Controller or/and get the decree of civil court executed for which he has already filed execution application.
The instant Constitution Petition stands disposed of in the above terms.
JUDGE