JUDGMENT SHEET

IN THE HIGH COURT OF SINDHKARACHI,

ConstitutionalPetition No.S-29of 2014

DATE                   JUDGMENT WITH SIGNATURE OF JUDGE

 

Petitioner                               :           Shabana Anjum, in person 

 

Respondent No.1                  :           Mst. Hajira Shazia Humayon, through

                                                            Mr. Hakim Ali, advocate 

 

Respondents No.2 to 5        :           III rd Rent Controller & 3 others, Nemo   

                                   

Date of order                         :           26-01-2017

Date of order                         :           26-01-2017

 

 

ORDER

 

                                   

ZAFAR AHMED RAJPUT.J:-        Through instant petition, the petitionerhas impugned theorder dated 09-04-2012passed by the learned III rd Rent Controller, Karachi-South in Rent Case No. 539 of 2011 (Ref. Mst. Hajira Shazia v. Muhammad Shahzad & others) and the order dated 06.01.2014 passed by the learned Vth Addl. District Judge, Karachi-South in F.R.A. No. 244 of 2013. 

 

2.         Brieflystated facts leading to this petition are that the respondent No.1 herein filed a rent ejectment application, under section 15 (2) (ii) & (iii) of the Sindh Rented Premises Ordinance, 1979 being Rent Case No.539 of 2011, stating therein that she wasthe owner/landlord in respect of Shop No.2, constructed on Plot No. B-2, 10/1, situated at Dr. Dawood Pota Road, Saddar, Karachi (hereinafter referred to as the “demised premises”) and the opponent No.1 (Muhammad Shahzad, the husband of present petitioner) was inducted as tenant in the demised premiseson a monthly rent of Rs. 400/- in the year 1998, who . It was the case of the respondent No.1 that the said opponent neglected and failed to pay the monthly rent to her since October, 2002 till the date of filing ejectment application. It was further case of the respondent No.1 that said opponent sub-let the demised premises, without her permission and consent to respondents No. 4 & 5 (opponents No. 2 &3). It was also case of the respondent No.1 that the opponent No.1 impaired the utility of the demised premises by erecting a wall in it to create another shop. After admitting the rent case, the learned rent Controller issued the notices to opponents through bailiff as well as registered A:D and finally through the daily NAWA-E-WAQT, dated 17.10.2011, but the opponents failed to appear before the Court; therefore, the matter proceeded ex-parte, and upon filing of affidavit in ex-parte proof by the respondent No.1, the learned Rent Controller, vide order dated 09.04.2012 allowed the rent application directing the opponents to hand over the vacant possession of the demised premises to respondent No.1 within 60 days from the date of order. Being aggrieved, the petitioner, who is the wife of opponent No.1 preferred First Rent Appeal No. 244 of 2013 before the learned District Judge, Karachi-South, which was heard and dismissed by the learned VthAdditional District Judge, Karachi-South, vide order dated 06.01.2014 holding the same not maintainable as the petitioner had already availed remedy under section 12 (2) C.P.C. It was; thereafter, the petitioner has maintained this petition.

 

3.         Heard the petitioneras well as learned counsel for the respondent No.1 and perused the material available on record.

 

4.         The petitioner has contended that herhusband is confined in jail of Kirman, Iran; however, no default has been committed in payment of rent as the same is being deposited by her in MRC. She has further contended that actually the demised shop was purchased by her husband in the sum of Rs. 10,00,000/-  and the entire building on the plot was constructed by her husband. She has however, admitted that no suit for declaration or specific performance of contract has been filed either by her husband or by her in respect of demised premises and the possession of the demised premises has been handed over to respondent No.1 under Court’s order, passed in execution application. 

 

5.         Conversely, the learned counsel for the respondent No.1 has maintained that against the order dated 09.04.2012, passed by the learned Rent Controller, the petitioner besides filing F.R.A., also  maintained an application under section 12 (2) of C.P.C., which was also dismissed by the learned Rent Controller in non-prosecution, vide order dated 16.08.2013. He has also maintained that the petitioner cannot resist the ejectment proceedings on the ground of prospective owner after admitting relationship of land lord and tenant between the parties.

 

6.         It appears that the petitioner at the one hand admits the relationship of landlord and tenant between her husband andrespondent No.1by saying that the rent is being deposited in MRC and on the other hand she claims that her husband had purchased the demised premises.The self-contradictory statements of petitioner aresufficient to establish the fact that she had infact taken unsustainable defence to protract the ejectment proceedings initiated by the respondent No.1 on the grounds of default in payment of monthly rent, subletting and impairing the utility of demised premises.

 

7.         Even otherwise, atenant cannot deny his relationship with landlordon the basis of any sale transaction. It is settled law that till the time tenant is able to establish his claim for “specific performance” on the basis of alleged sale transaction, 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 entering into a sale transaction. 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. Further,if the tenant has acquired any right under any sale transaction 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. Accordingly,the petition having no merit is dismissed alongwith listed application.

 

            Above are the reasons of my short order dated 26.01.2017.

 

                                                                       

JUDGE