IN THE HIGH COURT OF SINDH, KARACHI
C.P. NO. S-1990 of 2016
Petitioner : Mr. Tanveer Hussain, Advocate s/O Zaheer Hussain Muslim, Adult, tenant of Office No. 316, 3rd Floor, Uni Shooping Centre, Abullah Haroon Road Karachi; in person.
V E R S U S
Respondents No.1 & 2: (1) VIIIth Additional District Judge, Karachi and (2) VIIth Senior Civil Judge and Rent Controller; formal party.
Respondent No.3: Ms. Naheed Najam d/O Muhammad Najmul Hassan, Muslim, Adult, R/o House No.A-329 Block H, North Nazimabad, Karachi; in person.
Date of hearing: 07.12.2016.
Date of order: 09.01.2017.
ORDER
Khadim Hussain Tunio, J: - Through application U/O 39 R 1 & 2 CPC (C.M.A No. 9039 of 2016), the petitioner is seeking suspension of the operation of impugned Judgments dated 15.02.2016, passed by the learned 7th Rent Controller, Karachi South, whereby allowed rent application No. 327 of 2014 and Judgment dated 02.11.2016, passed by the appellate Court / learned 8th Additional District Judge, Karachi South dismissing F.R.A No. 67 of 2016, filed by the petitioner against the respondent No. 3.
2. Facts giving rise to this application are that respondent No. 3 / Land Lady filed rent application bearing No. 327 of 2014 against the petitioner / tenant for ejectment from demised premises, on the ground of default in payment of monthly rent at enhanced rate and on the ground of personal need. After holding service good of notices through Bailiff, Courier service, pasting and by way of publication in daily “Ummat” Karachi, upon the petitioner, the matter was adjourned for filing of written statement/objections. However, petitioner failed to file his written objections and he was debarred to file the same and the matter was ordered to be proceeded against him ex-parte. Land Lady/Applicant filed her affidavit-in-evidence in support of her application, wherein she stated that the petitioner/tenant failed to pay monthly rent agreed at the rate of Rs. 5500/- for the period commencing from 10.08.2012. She also produced renewed tenancy agreement dated 11.10.2013 in respect of office No. 216, 3rd floor Uni shopping Centre, Abdullah Haroon Road, Karachi, showing monthly rent of Rs. 6050, rent receipt showing the deposit of Rs.20000/-, 18 rent receipts of Rs.5500 per month with effect from 09.08.2011 to 10.12.2012 and 11 receipts of monthly rent of Rs.6050/- per month with effect from 05.01.2012 to 18.11.2013 and photo-stat copy of plaint along with annexure suit for permanent injunction filed against respondent No. 3 / Land Lady in the Court of 13th Civil Judge, Karachi South by petitioner / tenant. Thereafter, petitioner / tenant filed application under order 9 rule 13 C.P.C for setting aside ex-parte order dated 04.10.2014, which was dismissed for non-prosecution. Then petitioner / tenant also filed application under order 9 Rule 9 C.P.C, which too was dismissed for non-prosecution, vide order dated 29.05.2015; thereafter petitioner / tenant filed application under order 9 Rule 7 C.P.C and application u/s 5 of limitation Act. However, same were also dismissed vide order dated 25.01.2016, subsequently the rent application was allowed in favor of respondent No. 3 / Land Lady vide order dated 15.02.2016, on the ground of default in payment of enhanced rent and personal bona-fide need and the petitioner / tenant was directed to hand over the vacant possession of the premises in question to the respondent No.3 / Landlady within 45 days from the date of order. Being dissatisfied and aggrieved, the petitioner / tenant preferred appeal which was dismissed vide judgment dated 02-11-2016 and the same is impugned herein by way of instant constitutional petition. Along with the petition the petitioner has made instant application, which is being disposed of by way of this order.
3. Mr. Tanveer Hussain, applicant / tenant is an advocate by profession. He has submitted that he is in possession and enjoyment of the tenement in question under an agreement with the respondent No.3 since last five years; that the pursuant to the concurrent judgments of two Courts below, the respondent No.3 has filed Execution Application to have tenement in question vacated and in case she succeeds, the purpose of filing of the above petition will be frustrated on one hand and on other hand the petitioner will suffer irreparable loss and injury and that the balance of convenience in the given circumstances lies in his favor and he has also a prima-facie good case in support of the instant application. Alternatively, the petitioner prayed that four months’ time may be granted to him for vacating the tenement in question.
4. As against that Ms. Naheed Najam, advocate /respondent / landlady has vehemently opposed the instant application and has submitted that the petitioner / tenant is the willful defaulter in payment of enhanced rent; that the premises in question is required by her for personal bona-fide use and that neither the petitioner has presented a prima-facie case nor balance of convenience lies in his favor so also the petitioner shall suffer no loss if he, being a willful defaulter, would vacate the premises in pursuance of concurrent findings of two Courts below validly made as per law. Also she submitted that the petitioner had failed to participate in the rent proceedings before the Rent Controller, rather he continued to make irrelevant / unwanted applications to gain the time by dragging the proceedings too much to her detriment, and therefore, he deserves no leniency to grant the application in hand. She prays that same may be dismissed leaving the Execution Application made by her for decision on merit.
5. I have given due consideration to the oral submissions of parties and perused the record.
6. It appears that petitioner / tenant has committed willful default since December 2013 till date. Even during the course of his arguments, he has not made offer to pay arrears of rent or at least future period till he remain in tenement in question. In my view neither the petitioner / tenant has prima-facie good case for suspension of operation of impugned judgments nor balance of convenience lies in his favor as the Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. It is well settled principle of law that where one of three conditions i.e. prima-facie case, balance of convenience and irreparable loss, is missing no temporary injunction can be granted.
7. Keeping in view of the above discussion the application in-hand is hereby dismissed with no order as to costs.
8. Needless to mention here that whatever stated above is tentative in nature and will not cause prejudice to the case of either party at the time of hearing of C.P No.S-1990 of 2016, which the office is directed to fix preferably within 30 days as per roster.