JUDGMENT SHEET

IN THE HIGH COURT OF SINDHKARACHI,

                                                C.P.No. 258 of 2017                                                                                                                       

DATE                   JUDGMENT WITH SIGNATURE OF JUDGE

 

Petitioner:                              Muhammad Mueen, through Mr. Kalim-ul-Hasan Siddiqui, Advocate

 

Respondents:                        Muhammad Akram& others (Nemo)       

 

Date of hearing& order:      13-02-2017

 

 

ORDER

 

                                   

ZAFAR AHMED RAJPUT.J:-        Through instant petition, the petitioner/ opponent/tenant has impugned thejudgment dated 23-12-2016 whereby, dismissing the Rent Appeal No.04/2016, filed by the petitioner, the learned VIIth Additional District Judge, Karachi-East maintained the judgment dated 05.01.2016thereby the learned IIndlearned Rent Controller, Karachi-EastallowedRent Application No.45/2012(Re: Muhammad Akram v. Muhammad Mueen) filed by the respondent No.1/applicant/landlord.

 

2.         Brieflystated facts leading to this petition are that the respondent No.1/ applicantfiled a rent application under section 15 of the Sindh Rented Premises Ordinance, 1979 being Rent Case No.45/2012, alleging therein that he is co-owner and landlord of theFlatNo. B-203, 2/1-A, Welcome Centre, Shah Faisal Colony, Karachi(hereinafter referred to as the “demised premises”), which was rented out to petitioner by his father under tenancy agreement dated 26.03.2009 at the monthly rent of Rs. 6,000/- per month, thereafter, the said tenancy agreement was renewed on 10.04.2010 under the same rate of monthly rent, which petitioner paid up to January, 2011. It is the case of the respondent No.1 that on 01.02.2011his father expired and; thereafter, the petitioner intentionally and deliberately stopped payment of monthly rent though to this effect, the legal heirs of his deceased father have already obtained letter of administration from the competent Court of law and even the petitioner was served with a notice dated 14.12.2011 by the respondent No.1 intimating him about the death of his father and directing him to pay the outstanding monthly rent to him and to vacate the demised premises, as the same was required by him for his personal bona fide use, but petitioner lingered on the matter on one and other pretext and finally he refused to pay the rent amount to respondent No.1 and to vacate and hand over the vacant possession of the demised premises to him. 

 

3.         The petitioner/opponent filed his written statementwherein denying the claim of the respondents No.1/applicant, he has raised objections that the respondent No.1 has no cause of action to file the rent case against him as there exists no relationship of landlord and tenant between the parties.

 

4.         After recording evidence and hearing the learned counsel for the respective parties, the learned IInd learned Rent Controller, Karachi-East allowed the Rent Application, vide order dated 05-01-2016 by deciding following points for determination in favour of respondent No.1 and directing the petitioner to hand over the vacant and peaceful possession of the demised premises to respondent No.1 within 45 days from the date of order:-

i.          Whether the relationship of landlord and tenant exists between the parties?         

ii.         Whether the applicant requires the demised premises for his personal bona fide need?

iii.       Whether the opponent entered into an agreement with the father of applicant and paid Rs. 10,50,000/- as Pagri/good will.

iv.        Whether the opponent has committed default in payment of rent of the premises?

v.         What should the order be?

 

5.         Being aggrieved, the petitioner/opponent preferred Rent Appeal being No.04/2016 before learned District Judge, Karachi-East, which was heard and dismissed by the learned VIIth Additional District Judge, Karachi-East, vide Judgment dated 23-12-2016.It is against that concurrent findings of Courts below, the petitioner has maintained this petition.

 

6.         Heard the learned counsel for the petitioner and perused the material available on record.

 

7.         The learned counsel for the petitioner has contended that the impugned judgmentspassed by the learned Courts below are based on misreading of evidence, surmises and conjectures, as there exists no relationship of landlord and tenant between the parties and therefore, the same are against the law, justice and equity, which are adversely affecting the right of petitioner, who on09.06.2010 entered into tenancy agreement with the father of respondent No.1 in his life time in respect of demised premises and paid Rs. 10,50,000/- as pagri.  He has further contended that the learned Courts below haveerred in not relying the tenancy agreement dated 09.06.2010 filed by the petitioner. He has also contended that the demised premises is still mutated in the name of deceased father of the respondent No.1 and since the same has not been partitioned and mutated in the name of respondent No.1, the respondent No.1 has no legal right to maintain the ejectment proceedings against the petitioner specially when he has not been authorized by the other legal heirs of his deceased father to institute such proceedings against the petitioner. 

 

8.         It appears that the petitioner in his pleadings has not denied the fact of his occupation over the demised premises being tenant under tenancy agreements dated 26.03.2009 and 10.04.2010 executed between deceased father of respondent No.1 and petitioner but has asserted that now he is tenant by virtue of tenancy agreement dated 09.06.2010 whereby he obtained the demised premises on pagri/ good will and paid Rs. 10,50,000/- to the father of respondent No.1. but in his cross-examination he has changed his plea by saying that in the month of January, 2011 he paid an amount of Rs.10,50,000/- cash as part payment of the sale proceed of the flat, out of the total sale consideration of Rs.16,00,000/- and that the sale agreement was reduced in writing; the original thereof was kept by the applicant (respondent No.1) and photocopy was given to him, but he has not produced even the photocopy of the alleged sale agreement. He has also admitted that there was no witness of sale agreement and payment of Rs.10,50,000/-.  The self-contradictory statements of petitioner aresufficient to establish the fact that he has infact taken unsustainable defence to protract the ejectment proceedings initiated by the respondent No.1 on the grounds of default and personal bonafide use of the demised premises by the respondent No.1.

 

9.         Even otherwise, a tenant cannot deny his relationship with landlordon the basis of sale agreement; execution thereof hasnot been admitted by the landlord. It is settled 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 reported in PLD 2009 SC 45.

 

10.       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 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.

 

11.       As regards the second contention of learned counsel for the petitioner, suffice is to say it that any of the co-owners can maintain the ejectment proceedings on the ground of default in payment of monthly rent and personal bonafide need and for that he neither needs mutation of property on his name after the death of his father nor execution of any power of attorney on behalf of co-owners authorizing him for filing rent ejectment application against the tenant.

 

12.       On the basis of dictum laid down in aforementioned case-law, I without a second thought hold that the petitioner cannot legitimately resist maintainability of ejectment proceedings against him on the ground of sale agreement. Suffice it to observe that genuineness or otherwise of such agreement and its consequential effect will be independently determined by the Civil Court. However, in the instant case I am satisfied that the issue regarding relationship, default and personal bonafide requirement of respondent No.1/landlord has been correctly decided by the Courts below. There does not appear any defect or legal infirmity with regard to conclusions drawn in the impugned judgments. Accordingly, the petition having no merit is dismissed in limine alongwith listed applications. The petitioner is directed to vacate the demised premiseswithin 30 days from today and in case of his default the Executing Court may issue writ of possession with police aid without further notice to the petitioner.

 

                                                                                                                        JUDGE