JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

 

C.P. No. S-178 of 2016

 

 

Petitioner:      Abdul Qadir Masuri, present in

                 person.

 

 

Respondent:      Hasin Ahmed Advocate present in

No.1.            person.

 

Respondents      Nemo

No.2&3.

                

Date of hearing: 19.01.2017

Date of order:   19.01.2017

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O R D E R.

 

Zafar Ahmed Rajput, J:-       The respondent No.1 / applicant / landlord filed an application under Section 15 (1) (2) (ii) & (vii) of the Sindh Rented Premises Ordinance, 1979 bearing Rent Case No. 65 of 2012 against the petitioner / opponent / tenant before the Court of learned IIIrd Rent Controller, Karachi South, in respect of Flat No. 2/3, situated in Totaram Building, Chand Bibi Road, (Old Prince Road) Ranchore Lines, Karachi, on the ground of default in payment of monthly rent from January, 2007 till filing of the rent case. The petitioner / opponent / tenant contested the ejectment proceedings by filing written statement on the ground that he paid rent to the respondent No.1 regularly up to March, 2008 but he did  not issue any receipt and then after 05.03.2008 to March 2012 he tried to contact respondent No.1 for payment of rent approximately Rs.10,000/- but he did not receive the same. After recording of pro and contra evidence of the parties, the learned Rent Controller allowed the rent application directing the petitioner to vacate the premises and handover its peaceful possession to respondent No.1 within 60 days, vide order dated 16.04.2014. Against that order, the petitioner preferred FRA No. 85 of 2014, which was heard and dismissed by the learned VIth Additional District Judge, Karachi South, vide order dated 26.11.2015. It is against that concurrent findings of the lower Courts below on the point of default in payment of monthly rent that the instant Constitutional Petition has been preferred by the petitioner.

 

2.       The petitioner has contended that the learned Courts below did not consider the fact that he is residing in the flat, which he obtained on goodwill basis 24 years ago and the same was purchased by him from Mst. Zubeda Abbas through an agreement to sell; that the respondent No.1 filed ejectment proceedings against him with mala-fide intention in order to usurp the subject flat otherwise he is neither owner of the flat nor has any right to initiate ejectment proceedings against him.

 

3.       On the other hand, respondent No.1 has contended that he has already taken possession of the subject flat through execution proceedings; therefore, this petition has now become infructuous. He has also contended that the plea with regard to purchasing the flat on goodwill basis taken by the petitioner before this Court was not taken by him in his written statement as well as in his First Rent Appeal, otherwise the relationship of landlord and tenant is an admitted fact; hence this petition is liable to be dismissed even on merits, as no illegality or irregularity has been pointed out by the petitioner in concurrent findings of lower Courts below on issue of default.

 

4.       I have considered the above submissions of both the parties as well as perused the record.

 

5.       It appears from perusal of written statement filed by the petitioner that he has admitted that the respondent No.1 is landlord of the demised premises. He has also admitted that the demised premises was rented out to him in the month of November, 1993 at the monthly rent of Rs.80/- without any advance or security deposit. He has also admitted that the monthly rent was annually increased 10% per year by mutual consent of the parties and the present rate of rent is Rs.198/- w.e.f. January, 2008. However, he denied that he is chronic defaulter in payment of monthly rent. Both the lower Courts below have concurrently held on the admission of the petitioner in cross-examination that he deposited rent for 67 months in the Court in MRC No. 993 of 2012 on 11.09.2012 while the application for ejectment was filed on 24.01.2012, which shows that after receiving notice of rent case the petitioner deposited rent in the Court for 67 months, which is sufficient to prove default on his part in payment of monthly rent, while the plea of goodwill is after thought to make a new ground, which is not permissible by the law and the parties are bound by their pleadings.

 

6.       For the forgoing facts and reasons I do not find any illegality or irregularity in the concurrent findings of the lower Courts below on the point of commission of default by the petitioner in payment of monthly rent, requiring any interference of this Court under its extraordinary constitutional jurisdiction under Article 199 of the Constitutional of Islamic Republic of Pakistan, 1973. I, therefore, dismiss this Constitutional Petition being devoid of any merit, alongwith listed application.

 

7.       Since the respondent No.1 has already taken possession of the tenement, further direction with regard to handing over possession of the tenement to the petitioner is not required.

JUDGE

Athar Zai