JUDGMENT SHEET
IN THE HIGH COURT OF SINDHKARACHI,
C.P.No. 28 of 2017
DATE JUDGMENT WITH SIGNATURE OF JUDGE
Petitioner : Maqbool Ahmed Siddiqui, through Mr. Qamar
Iqbal, Advocate
Respondent No.1 : Khaliq Iqbal Zuberi, through Mr. Syed Shahid
Mushtaq, Advocate
Respondent No. 2 to 4 : Vth Addl. District Judge & 2 others (Nemo)
Date of hearing& order : 08-03-2017
ORDER
ZAFAR AHMED RAJPUT.J:- The respondent No. 1/ applicant filed an ejectment application, under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as “the Ordinance, 1979”) being Rent Case No. 206 of 2014 against the petitioner /opponent, on the ground of default in payment of monthly rent, alleging therein that immovable property situated on Plot No. I-E, 9/1/ Nazimabad No.1, Karachiwas owned by late Masood Zuberi, which was let out by the deceased to petitioner, vide agreement dated 07.10.1968 on agreed rent of Rs. 600/= per month, which was periodically increased to Rs. 11,000/- per month. It has further been alleged that late Masood Zuberi was unmarried, he died on 08.03.1985; subsequently, Letter of Administration was issued by the District Judge, Karachi-Central in S.M.A. No. 32 of 2006 in favour of respondent No.1. It was the case of the respondent No.1 that the petitioner paidhim monthly rent up to March, 2009 and; thereafter, he committed default in payment of rent. The petitioner resisted the ejectment application by filing written statement wherein,admitting his induction in rented premises as tenant,he has pleaded that he had afterward purchased the demised premises from late Masood Zuberi under sale agreement executed on 25.10.1982. It has also been pleaded by the petitioner that he has already filed a Civil Suit No. 557/2014 for specific performance of contract, which is pending adjudication before the civil Court. However, he has admitted that the rent was being paid by him to respondent No.1, as it was got incorporated in the sale agreement that till the sale deed is registered, the opponent shall pay rent at the rate of Rs. 2,200/=, which was enhanced to Rs. 11,000/- per month. However, he has denied the status of respondent No.1 as owner of the demised premises.
2. The respondent No.1also filed an application under section 16(1) of the Ordinance, 1979 for depositingthe arrears of rent from April, 2009and onwards at the rate of Rs.11,000/- per month. The petitioner filed objections to the said application wherein he asserted that the respondent No.1 was neither owner nor transferee of the property in question and further claimed that neither rent was due nor any amount was payable. The learned Rent Controller after hearing the learned counsel for the parties allowed the said application, vide order dated 07.04.2016, directing the petitioner to deposit the arrears of rent at the rate of Rs. 11,000/- for the last three years amounting to Rs. 3,96,000/- within one month and continue to deposit future rent at the same rate on or before 15th of each calendar month. As the petitioner did not comply with the aforesaid tentative rent order, the respondent No. 1 filed an application under section 16(2) of Ordinance, 1979 for striking off the defence of the appellant, which was allowed by the learned Rent Controller, vide order dated 15.08.2016 with direction to the petitioner to hand over the vacant and peaceful possession of the demised premises to the respondent No. 1 within thirty (30) days from the date of order. Being aggrieved, the petitioner preferred Rent Appeal being No.92 of 2016 before the learned District Judge, Karachi-Central, which was heard and dismissed by the learned VIthAdditional District Judge, Karachi-Central, vide Judgment dated 30.11.2016.It is against that, the instant petition has been maintained by the petitioner.
3. Heard the learned counsel for the petitionerand respondent No.1 and perused the material available on record with their assistance.
4. The learned counsel for the petitioner has contended that the impugned orders passed by the learned Courts below are bad in law as the same have been passed without considering the fact that there exists no relationship of landlord and tenant between the parties, which are adversely affecting the petitioner’s rights,in the demised premise, whohad entered into a sale agreement with the predecessor-in-interest of the respondent No.1in respect of demised premises. He has further contended that the learned Courts below have erred in not considering the sale agreement dated 25.10.1982 in favor of petitioner.
5. On the other hand, learned counsel for the respondent No.1has fully supported the impugned Ordersand has maintained that the belated civil suit filed by the petitioner against the respondent No.1 for specific performance of contract has been dismissed by the learned 3rd Senior Civil Judge, Karachi-Central, vide judgment dated 18.02.2017.
6. It appears that the petitioner in his pleadings has not denied the fact of his occupation over the demised premises being tenant under tenancy agreement dated 07.10.1968 executed between lateMasood Zuberi, the paternal uncle of respondent No.1, and himbut he has asserted that subsequently he entered into a sale transaction with late Masood Zuberi in respect of demised premises, vide sale agreement dated 25.10.1982. As per the alleged sale agreement, the total sale consideration was agreed by the parties at Rs. 14,00,000/= and an amount of Rs. 4,00,000/- was paid to deceased Masood Zuberi by the petitioner as part payment, while balance amount i.e. Rs. 10,00,000/- was to be paid in installments within three years, with condition that if same was not paid within stipulated period, the agreement to sale would be treated as cancelled after 30 days of serving a notice by the vendor upon the vendee/ petitioner. It was also agreed that the vendee/petitioner shall pay Rs. 2,200/- per month till the full payment is paid to vendor. The petitioner has also not denied the increase of rent from Rs. 2,200/- to Rs. 11,000/- per month and its payment to respondent No.1 upto March, 2009. It is also an admitted position that the civil suit filed in the month of March,2014, after32 years of the alleged sale agreement, by the petitioner against the respondent No.1 for specific performance of contract has been dismissed by the learned 3rd Senior Civil Judge, Karachi-Central, vide judgment dated 18.02.2017.
7. The petitioner tenant cannot deny his relationship with respondent No.1/landlordon the basis of sale agreement, as the sale agreement confers no title on him. Even the alleged sale agreement does not authorize non-payment of monthly rent by him, which he admittedly paid up to March 2009 with increased rate, and thereafter,he stopped paying it to respondent No1. It is settled principle of law that till the time tenant is able to establish his claim for “specific performance” on the basis of alleged sale agreement, the landlord would continue to enjoy the status of being owner or landlord of the premises and the relationship between the parties till such time would be regulated by the terms of tenancy and the tenant cannot legitimately resist the maintainability of ejectment proceedings pending against him on the ground of execution of sale agreement. It is also settled proposition of law that once a person acknowledges himself to be a tenant of a landlord, the principle of estoppel as enunciated in Article 115 of Qanun-e-Shahadat Order, 1984 would come in to play, debarring such tenant to deny the title of his landlord. The reliance in this regard is placed on the case of Mst. Seema Begum v. Muhammad Ishaq and others(PLD 2009 SC 45).
8. The tenant continues to be the tenant even if he is bonafidely entered into an agreement of sale and if he has acquired any right under sale agreement that can be pressed by him even after vacating the premises once the order of ejectment is passed. It is by now a settled law that the plea of agreement of sale by the tenants cannot save him from the consequences of ejectment orders. In the case of Abdul Rasheed v. Maqbool Ahmed and others reported in 2011 SCMR 320, the Honourable Supreme Court has held that:-
“ It is settled law that where in a case of eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement where after he would be given easy access to the premises in case he prevails. In this regard reference can be made to Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst. Azeemun Nisar Begum V. Mst. Rabia Bibi (PLD 1991 SC 242), Muhammad Rafique V. Messrs Habib Bank Ltd (1994 SCMR 1012) and Mst. Bor Bibi v. Abdul Qadir (1996 SCMR 877). In so far as determination of the relationship of landlord and tenant is concerned, such enquiry by the Rent Controller is of a summary nature. Undoubtedly the premises were taken by the petitioner on rent from the respondent and according to the former he later on purchased the same which was denied by the latter. Consequently, the relationship in so far as the jurisdiction of the Rent Controller is concerned stood established because per settled law the question of title to the property could never be decided by the Rent Controller.
9. In the above prospective, I have examined the impugned orders and find that the same do not suffer from any legal infirmity, which do not requireany interference of this Court under its constitutional Jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Accordingly, the petition having no merit is dismissed, alongwith listed application.
JUDGE