IN THE HIGH COURT OF SINDH, KARACHI

Present :

Mr. Justice Fahim Ahmed Siddiqui

Const. Petition No. S - 1822 of 2016

Muhammad Farid Qureshi and another……..………………....….Petitioners

Versus

VIIth Rent Controller South Karachi and 02 others……….......Respondents

Date of Hearing:- 13.02.2017

Mr. Muhammad Riaz, advocate for the petitioner

Mr. Fazl-ur-Rehman, advocate for respondent No.3

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: By filing the instant petition, the petitioners have challenged the concurrent findings of two forums below i.e. learned Rent Controller-VII, Karachi South and learned Additional District Judge-V, Karachi South in respect of rented premises viz. Shop No. 6, situated in Al-Ahmed Centre, Magazine Lines, Preedy Quarters, Karachi.

2. It is the case of petitioners that initially they were tenant but later on, they have purchased the aforesaid premises from its previous landlady Mst. Samina Naseem, who executed a sublease in their favour. In the year 2014, the respondent No. 3 approached to the petitioners and demanded to vacate the subject shop by saying that they had purchased the entire property from the previous owner. The petitioners refused to accept her as owner by claiming their own title on the property in question. The respondent No. 3 filed a rent case which was decided in her favour. The petitioners assailed the verdict of learned Rent Controller before the learned Appellate Court which was also decided in favour of the respondent No. 3, hence this petition was filed.

3. The learned counsel for the petitioners argued at length. According to him, the learned Rent Controller unjustifiably dismissed the application of previous landlady filed under Order I Rule 10 for joining the rent proceedings. He submitted that the previous landlady had already executed sublease in favour of the petitioners, as such they are owners of the premises in question. According to him, the petitioners have denied the relationship of landlord and tenant and this fact was not appreciated by the learned rent controller as well as the learned appellate court and they did not take notice of the sublease executed in favour of the petitioners. According to him, the previous landlady has sold out the property to the respondent No. 3 but subsequently she re-purchased the shop in question and sale agreement was executed and then she executed sublease in favour of the petitioners. In response to a query, he submitted that the suit was filed by the previous landlady against the new owner but the trial court rejected her plaint under Order VII Rule 11 CPC. He disclosed that the petitioners had already filed a suit against the present and previous owners, which is pending. According to him, during pendency of the suit ownership is disputed as such the petitioners cannot be evicted. He took reliance from 2013 CLC 1179.

4. In contrast to above, the learned counsel for the respondent No.3 submitted that the property was purchased by the respondent No.3 from the previous owner and after payment of full and final consideration, sale-deed was executed in favour of the respondent No.3. According to him, when the respondent No.3 intimated the petitioners about change of ownership, they got registered sublease in their favour in collusion with the previous landlady. He pointed out that on 23-12-2013, the sale-deed was executed in favour of respondent No.3 while the date of sublease is 20-5-2014. He contended that after execution of sale deed, the previous landlady had nothing to do with the property in question and any instrument executed by her in respect of whole or part of the property is not legal. He submitted that the plaint of the suit filed by previous landlady was rejected on the same ground. He further submitted that on account of double entry, the Sub-Registrar concerned impounded the sublease. In the end, he submitted that the findings of learned Rent Controller and learn Additional District Judge are correct and based on proper appreciation of evidence. He took reliance from 2000 CLC 1841, 2010 SCMR 1925 and 2015 CLC 310.

5. I have given anxious consideration to the arguments advanced and scrutinized the available record in the light of the arguments of learned members of the bar. I am also enlightened from the case-laws cited from both sides. It is an admitted position that the previous landlady has sold out the building wherein the shop in question is situated to the respondent No.3. The sale-deed was executed for the entire property without deletion of any portion or apartment of the same. After execution of the sale-deed in favour of the respondent No.3, the previous landlady has executed a sublease in favour of the petitioners. The said sublease has already been impounded by the authorities concerned. No doubt, a strong presumption of genuineness is attached to a registered document but this legal theory does not apply to the case of petitioners. The reason is obvious; the presumption of genuineness is not attached to a document which has already been impounded by the registering authorities on the ground of grave defect in the same. An impounded document cannot be considered as a registered document as such on the basis of such document, no claim of ownership is sustainable. Besides, there is another aspect that the title of the property can only be transferred by a person who himself has a clean title over the property. In the present case, after execution of sale deed in favour of the respondent, the previous owner had no title or authority on the demise premises, therefore, she could not execute a sublease in favour of the petitioners.

6. As far as contention of the learned counsel regarding re-purchase of the property in question by their previous landlady is concerned, the same will not be helpful for the petitioners. The anecdote of repurchasing of the shop in question already vanished into thin air because of rejection of plaint of suit filed by the previous owner of the property. It is also contended on behalf of the petitioners that they have filed a civil suit which is pending trial. The contention of learned counsel for the petitioners is that pendency of civil suit is a concrete fact of denial of relationship of landlord and tenant. I am of the opinion that this argument is not helpful for the petitioners according to law laid down in the judgment reported as Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064). It is now a settled law that merely pendency of the suit does not change the status of a tenant and as long as his status remains as tenant, he will be dealt with accordingly. On the pretext of pendency of a suit, a tenant cannot claim his right of continuity of possession on the premises. In this respect, I fortify my view from the case reported as Barkat Masih v. Manzoor Ahmed (deceased) through L.Rs. (2006 SCMR 10680), in which their lordships held as:

“Even otherwise it is settled principle of law that if a tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in-question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree is passed in his favour then he can enforce the same according to law with all its consequences.”

7. The learned counsel for the petitioners cited case of this Court reported as Hakim Mairajuddin through LRs v. Abdul Rasheed and 2 others (2013 CLC 1179) but the same is not helpful for the petitioners as the same is on different footing. In the case of Hakim Mairajuddin (supra), the title of the alleged landlord was under thick clouds because the property was said to be evacuee property and neither belongs to the landlord or his predecessor in interest. As far as the case laws cited by the learned counsel for the respondent No.3 are concerned, the same are close to the facts and circumstances of the case in hand.

8. Contemplating the above facts and circumstances, I am of the considered view that petitioners have failed to point out any material illegality and irregularity committed by the learned appellate Court as well as learned Rent Controller. As the concurrent findings of both forums are within the four corners of law, therefore, same do not deserve for any interference, hence maintained. Consequently, the instant Constitution Petition being devoid of any legal substance stands dismissed.

9. The above are the reasons of my short order dated 13.02.2017.

J U D G E