IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No. 1367 of 2014

Muhammad Asif and another……….…………………..……………….….Petitioners

Versus

V-Additional District Judge Karachi Central and 02 others………......Respondents

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Const. Petition No. 1368 of 2014

Muhammad Asif and another……….…………………..……………….….Petitioners

Versus

V-Additional District Judge Karachi Central and 02 others………......Respondents

Date of Hearing:- 11.02.2017

M/s. Zafar Alam Khan and Junaid Alam Khan, advocates for the petitioners

Khwaja Amjad Pervaiz, advocate for respondent No.3

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: This single judgment will dispose of the above-mentioned two constitutional petitions filed by the petitioners against the Consolidated Judgment passed by Additional District Judge-V, Karachi Central.

2. The grievance of the petitioners is that the respondent No.3 filed a rent case before Rent Controller-II, Karachi Central against the petitioners regarding a shop situated on Plot No. 4/365, Liaquatabad, Karachi including the back portion of the said shop. The learned Rent Controller dismissed the application filed by the respondent No. 3 (hereinafter referred as respondent) by holding that there was neither subletting nor personal need but declared the existence of the relationship of landlord and tenant between the parties. Both the parties challenged the verdict of learned Rent Controller and the appellate forum (learned Additional District Judge) dismissed the appeal filed by the petitioners and allowed the appeal filed by respondent, hence the petitioners filed the above referred petitions against the consolidated verdict of learned Additional District Judge in both the appeals.

3. It is the case of petitioners that their father entered into an agreement with the father of respondent regarding the shop in question, wherein he established a milk shop in the name and style of 'Siraj Milk Shop'. He remained as tenant till 1993, when he approached the father of respondent with a request to purchase the shop in question along with the back portion thereof. The father of respondent agreed to offer for a consideration of Rs.500,000/-. According to the petitioners, it was an oral agreement and since then the status of tenancy was changed into ownership. After the death of the father of petitioners, they continued their business within the demise shop. On the other hand, the respondent claims that the father of petitioners approached to his father with a proposal of enhancing rent from Rs.300/- to Rs.3000/- subject to addition of back portion of the shop in tenancy for which he will pay Rs. 500,000/- as security deposit. The father of respondent allegedly agreed to this term and the said security deposit was paid in two instalments. As per respondent, the back portion was not given under tenancy and it was later on encroached upon by the petitioners. According to respondent, his father gifted the entire building to him in the year 2000 and since, then he is receiving rent from the petitioners. As per rent application, the Respondent is doing business in a nearby shop, and he is in need of the shop rented out to the petitioners for his personal bona-fides need to extend his business. As contended in the rent application, after the death of the father of petitioners, the respondent accepted petitioner No. 1 as a tenant. In the year 2008, the petitioner No. 1 handed over the shop in question to the petitioner No. 2 without the consent of landlord (respondent), as such he is responsible for subletting.

4. The learned counsel for the petitioners made his submissions at length. The trail of his arguments is that the rent application was filed on the ground of personal need and subletting and the ground of default was not agitated. If the ground of default is not agitated, the question of forfeiture of the tenancy does not arise as held by the Appellate Court. According to him, the jurists borrowed the theory of forfeiture from Sections 111, 112 and 113 of the Transfer of Property Act. In this respect, he took reliance from PLJ 1980 Lahore 207 and 1980 CLC 1141. He submitted that in 2008, the respondent served a legal notice upon his client, and they brought it on the record. He contended that without placing the said legal notice on record, they relied upon the reply of the same. He insisted that his clients are not the tenant but they are owners of the premises and both courts below unnecessarily took reliance of the reply of said notice and the so-called admission of the petitioners, which they had already withdrawn. According to him, the response of the said notice was drafted by the then counsel for the petitioners without following their instructions. He submitted that his clients were unaware about the wrongly replied notice, and they came to know about the same when the respondent filed the eviction case in 2011. As soon as, the petitioners came to know it, they immediately withdrew the same. According to him, an admission can be taken back as it does not constitute a conclusive proof. In this respect, he took reliance from PLD 1960 Karachi 885, PLD 1975 Supreme Court 311, PLD 1989 Supreme Court 749, PLD 1993 Peshawar 81 and AIR 1935 Privy Council 150. While continuing his arguments, he assailed the findings of two Courts below in respect of said admission of the petitioners and the application of estoppel due to said admission. By referring to Article 115 of Qanoon-e-Shahadat Order; he submitted that we must see whether it comes in the way of petitioners because the 'estoppel' should come in the pleadings. Regarding this issue, he took reliance from PLD 1972 Quetta 97, 1989 CLC 1850, PLD 1959 Karachi 755 and PLD 1970 Supreme Court 465.

5. In response to a query, the learned counsel for the petitioners admitted that the petitioners had filed a suit for specific performance, but the learned Rent Controller rejected the plaint of said suit on an application of the respondent under Order VII Rule 11 CPC. According to him, the petitioner assailed the rejection order, but it was upheld up to the Hon’ble Supreme Court. He emphasized that as per provision under Order VII Rule 13 CPC, in the case of rejection of plaint ‘res judicata’ does not apply to the fresh case and on the same principle, he can take pleas of his suit as a shield of defence in the instant matter. He also pointed out that the respondent has filed suit No. 1134/2011 and 1020/2014 against the petitioners, amongst them one is for a declaration that there was no sale between the parties and the other is for arrears of rent.

6. As against the above submissions, the learned counsel for the respondent also addressed this Court. According to him, the eviction application was filed on two grounds i.e. personal need and subletting. The trial court initially restricted itself to the question of relationship and framed a single issue with directions to the parties to lead their evidence regarding this matter. He submitted that the petitioners tried to malign the title of respondent as such they are not a good tenant. The tenancy is not operated under a written tenancy agreement and till filing of the rent application, the petitioners were paying rent regularly as such no case of default was made out until that time as such they did not plead the same in rent application. However, with an intention to malign the title of the respondent, they stopped payment of rent by taking the plea that they are owners as such now they are the defaulter, and the Court is fully empowered and justified to hold them, defaulters. He referred to paragraph 7 of his eviction application and paragraph 8 of the Reply of petitioners to his rent application and submitted that in response to their said admission, they took a plea that the then advocate had not followed the instructions and they intended to file an application against the said advocate in Bar Council. He submitted that they did not take any action against the said lawyer as such there is no proof with them that the advocate, engaged for a reply, has betrayed them. He contended that estoppel is very much available there and learned Rent Controller, as well as the appellate forum, has rightly taken notice of it. Regarding non-appearance of 'estoppel' in the pleadings, his response is that the respondent could not take it in pleadings as he firstly came to know about it through their reply to rent application. He stressed that the petitioners limited themselves to one point i.e. 'Relationship' as such there remained no option for them but to vacate the premises. Regarding the suit filed by the respondent, he submitted that suit No. 1134/2011 has been withdrawn as the question of ownership is decided in his favour and their suit for specific performance suffered the rejection of plaint up to the Hon’ble Supreme Court. He took reliance from 1986 CLC 1878, PLD 1988 Karachi 393, 1989 CLC 1467, NLR 1989 Civil 526, PLD 1999 Supreme Court 1101, 2005 SCMR 977, 2005 YLR 145, 2006 CLC 989, PLD 2006 Supreme Court 214, 2010 CLC 1941, 2011 SCMR 320, 2012 YLR 2892, 2013 YLR 2006,2014 CLC 151,2014 YLR 2727 & SBLR 2016 Sindh 433.

7. After hearing the submissions of the learned members of the Bar, I have scrutinised all the material placed before me in the light of valuable arguments submitted before me. The Sindh Rented Premises Ordinance 1979 is a special and beneficial law which has provided only one forum of appeal but in case of some illegality and irregularity floating at the surface of record, this Court may interfere under constitutional jurisdiction. Usually, in rent cases factual aspects of proceedings seldom open in const. petitions. However, legal questions may be raised and addressed under the constitutional jurisdiction regarding rent matters. In the instant case, two important questions have been raised. One pertains to the operation of estoppel against the petitioners from an admission which has subsequently taken back and the other is regarding finding of default when no ground of default is taken by the respondent.

8. The learned counsel for the petitioners emphasised that the admission by the petitioners in response to a legal notice was without their instructions as such that portion of the reply has already been withdrawn. According to him, after withdrawal of the said portion of their reply, it has no binding effect upon the petitioners. In his opinion, an admission does not constitute a conclusive proof and after withdrawal it cannot be used against the petitioners therefore no question of estoppel arises against the petitioners. In this respect, he took reliance on some case laws of superior courts. Before entering into further discussion, I think it proper to refer to the definition of 'Estoppel'. According to Black Law Dictionary, estoppel means:

“A bar or impediment raised by the law, which precludes a man from alleging or from denying a certain fact or state of facts, in consequence of his previous allegation or denial or conduct or admission Wake up, or in consequence of a final adjudication of the matter in a court of law.”

http://thelawdictionary.org/estoppel/

Estoppel is beautifully defined in Article 114, which is reproduced as under:

“114. Estoppel. When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

From the above definition of estoppel, it is clear that the intention is necessary. In the present case, the petitioners forcefully alleged that they did not instruct their lawyer regarding the admission in his reply. The petitioners brought on record the legal notice issued to them, in which respondent levelled allegations of subletting and encroachment of the back portion of the shop against them. After their reply, the Respondent remained silent for an extended period, and the reason might be that they would be satisfied with the response given by the lawyer of the petitioners. Meaning thereby that it was the act of the petitioners that had consoled them regarding the tenancy and perhaps about the encroachment. Now the question arises, whether the respondent would remain silent for a couple of years if the petitioners denied their ownership in their reply? Obviously not. It means that it was the response of the petitioners, which at least satisfied them regarding their title. In this way, it can be said that the act of petitioners fulfills the requirement of Article 114 of Qanoon-e-Shahadat Order.

9. Regarding admission in the reply of the legal notice, the petitioner states in para-2 of the memo of the petition as under:

“In regard to the reply dated 21-02-2008 to the legal notice dated 16-02-2008, it was stated that after receiving the legal notice from the respondent No. 3, the petitioner No. 1 had told the advocate to deny the relationship of landlord and tenant for the reasons stated hereinabove but through mistakes the said advocate admitted the relationship of landlord and tenant.”

In the above, the underlines are mine. During arguments, the learned counsel for the petitioners contended that the ‘portion’ of the reply of legal notice, about the admission of tenancy, was withdrawn. I have gone through the said legal notice, and my opinion is that after withdrawing the acceptance of tenancy there remains nothing. From top to bottom in the said reply of legal notice, the 'Pearl of Admission of Tenancy' are scattered, and it is not possible that it was a slip of the pen of an advocate. If their lawyer was responsible for some professional dishonesty or misconduct, then it was obligatory for the petitioners to take action against him before the appropriate forum. Without doing anything in this respect, only words of the petitioners regarding the denial of such unambiguous and unqualified admission is not sufficient.

10. In the course of arguments, the learned counsel for the petitioners has taken reliance from the case of Pakistan Development Corporation Ltd (PLD 1960 Karachi 885) and submitted that an admission is not conclusive proof. The ratio of the said case law is that if there is an explanation of an admission than the same is not a conclusive proof and doctrine of estoppel will not operate for such an admission. In the case of Pakistan Development Corporation Ltd (supra), manager of the defendant bank wrote a letter to plaintiff for payment of an amount of about Rs.58,000/- after adjustment. After adjustment, nothing left for payment, therefore, an explanation was made by the defendant and the same was accepted by the Court. However, in the instant case, there is no such justification or excuse for the admission described above especially when the petitioners have not taken any legal course against their said advocate. It has also come on record during the examination that the then counsel for petitioners has provided a copy of the reply to the petitioners. In such a situation, if the petitioners recanted immediately then there may be a case in their favour. In fact, they withdrew from their earlier statement in their WS, and the same is also without a reasonable explanation. The learned counsel for the petitioner relied on teaming numbers of case laws having similarity as to the case of Pakistan Development Corporation Ltd (supra), as such the same are distinguishable to the facts of this case. In the backdrop of above, I am of the considered view that there is a clear-cut and unambiguous admission of tenancy in the reply dated 21-02-2008 by the advocate of the petitioners to the legal notice dated 16-02-2008 on behalf of the respondent.

11. Regarding the relationship of landlord and tenant, another aspect requires consideration. It is the case of petitioners that their predecessor has purchased the shop in question and annexed open space, back into the year 1993. Allegedly, the agreement of sale between the parties was oral, and even the father of the petitioner did not obtain a receipt of the payment of consideration. Neither their father nor the petitioners tried to get executed a conveyance deed or any documentation regarding the said property and remained slumbering deep. Even after issuance of legal notice by the respondent in 2008, they did not attempt to assert in respect of their claim over the shop in question. They awoke from their deep sleep, after filing the rent proceedings by the respondent. They filed a suit for a specific performance, which suffered a fate of rejection of the plaint and the order of the trial court upheld up to the Hon’ble Supreme Court. As such, they remained unsuccessful to dispute the relationship up to the Hon’ble Supreme Court.

12. Another aspect of the instant case is important. As I have observed above, that there is an unambiguous admission of tenancy by the petitioners in their reply of the legal notice. This reply comes in the way of the petitioners for denial of tenancy according to Article 115 of Qanoon-e-Shahadat Order. It is the reason that there remained no impediment for learned Rent Controller to declare that the relationship between the petitioners and respondent is that of tenant and landlord. In the presence of such a robust and convincing documentary evidence, not only the findings of the learned Rent Controller but also the learned Appellate Court regarding the existence of the relationship of landlord and tenant are fully justified.

13. The learned counsel submitted that the learned Appellate Court has given a verdict regarding non-pleaded default, which is not lawful. He contended that if the respondent did not take the ground of default in pleadings and there is no prayer on this account, then no relief could be granted. In this respect, he took reliance from the case reported as Muhammad Yousuf v. Muhammad Hassan (PLJ 1980 Lahore 207), and Abdul Rasheed v. Muhammad Akhter (1980 CLC 1141). On the other hand, the contention of learned counsel for the respondent is that the default has taken place after filing of rent case as after rent case they stop payment of rent. According to him, this fact has come on the record as such an order for ejectment can be passed on this score also. It is an admitted position that in the rent application there was no allegation of default as such, there was no prayer of eviction on account of default. It is not deniable that at least after the institution of rent case, the petitioners did not pay or deposit the rent. It is also a fact that they did not deposit rent in the court even under protest. They might do so to substantiate their claim of ownership. In such a situation, not only technically but also actually a default has taken place, and a court can take judicial notice of the same especially when the tenant wilfully denied the relationship and his denial could not sustain under the law. In a case reported as Muhammad Anwar v. Mst. Nafeesa Begum (PLD 1981 Karachi 85) this Court has held as under:

"The upshot of the above discussion is that the Courts below were justified in ordering the eviction of appellant after having found that the' appellant's denial to the title of the respondent and his refusal to the liability of paying rent to the respondent, was wrong and illegal. "

This Court has also taken a similar view in the case reported as Khursheedullah v. Mrs. Qamar Jahan (NLR 1989 Civil 526) in which while examining the question of the relationship and non-payment of rent, Mr. Justice (as he then was) Qaiser Ahmed Hamidi speaks as under:

"The benefits and protection of the beneficial legislation in the form of Sindh Rented Premises Ordinance, 1979, can be extended only to the person who discharges his own obligation as a tenant, namely, by payment of rent to his landlady. The respondent, who was not obliged to send copy of gift deed to the appellant along with the notice, did so to avoid any possible dispute. The appellant, however, disputed the title, although he had reason to believe that she had a valid title"

It is further held in the case of Khursheedullah (supra), as under:

"The appellant who has all along disputed the relationship of landlady and tenant is thus an undesirable tenant for this denial of the title of the landlady by the tenant it is by itself sufficient to order his eviction straightaway."

It is not out of place to point out that the cases of Muhammad Yousuf v. Muhammad Hassan (PLJ 1980 Lahore 207) and Abdul Rasheed v. Muhammad Akhtar (1980 CLC 1141) cited by learned counsel for the petitioners are those in which relationship was not denied as such the same do not proceed to the facts and circumstances of the case in hand.

14. The last but not the least is the conduct of the petitioners, which is sufficient to disentitle them for any relief. They have nothing in their hands to establish themselves as the owner of the property, and without any justification remained spitefully critical in respect of the relationship of landlord and tenant. Their status as a tenant is established and they tried to malign the title of the respondent over the property in question in which they could not succeed up to the Apex Court. In such a situation, I have no hesitation to say that the conduct of petitioners demands that they are liable to the eviction being an improper tenant. In this respect reliance, may be taken from the case reported as Ghulam Samdani v. Abdul Hameed (1992 SCMR 1170), in which it is held as under:

"It is by now well settled that if a tenant denies the relationship of landlord and tenant, he is liable to eviction straightaway without recording of evidence on the other allegations of default, damage to property and personal need."

15. In view of what has been discussed above, I have come to a compelling conclusion that the finding of two forum bellow regarding the relationship is not tenable in all respect and the conclusion of appellate forum regarding personal need is also not suffering from any defect. Besides on account of the conduct of the petitioners they are also liable to ejectment. In these circumstances, the instant petition is dismissed with no order as to cost.

J U D G E