Judgment Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. S – 55 of 2014

Petitioners           :     Chuadary Muhammad Saleem,

Chuadary Muhammad Siddique,

Chuadary Muhammad Hanif,

Chuadary Muhammad Zaheer,

Chuadary Muhammad Waheed

and Naveed Saleem, through

Mr. Farhan Zia Abrar Advocate.

Respondent No.1 : V^th  Additional District Judge, Karachi South.

Respondent No.2 : Azhar Ali through Mr. Muhammad Rafi Kamboh

Advocate.

            Dates of hearing  :   03.10.2018, 09.10.2018, 17.10.2018, 15.01.2019

and 22.01.2019.

J U D G M E N T

NADEEM AKHTAR, J. – Rent Case No.984/2011 was filed by the petitioners against respondent No.2 for his eviction from residential building consisting of ground plus one floor, constructed on Plot No.62, Final No.43, Sheet No.M.A.C. II, and Plot No.62-A, new No.224-A, Sheet No.M.A.C.II, Mahmoodabad Gate Karachi, (‘demised premises’). The above rent case was filed by the petitioners against respondent No.2 on the grounds of default and personal bonafide need. In October 2011, the petitioners filed an application under Section 16(1) of the Sindh Rented Premises Ordinance, 1979, (‘the Ordinance’) praying that respondent No.2 be directed to deposit an amount of Rs.828,000.00 in Court towards arrears of rent for the period 01.08.2009 to 30.10.2011. Vide order dated 16.10.2012, the above application was allowed by the learned Rent Controller as prayed, by directing respondent No.2 to deposit arrears of rent for the above period within thirty (30) days. As respondent No.2 had failed to comply with the above order, an application under Section 16(2) of the Ordinance was filed by the petitioners which was allowed by the learned Rent Controller vide order dated 27.02.2013 whereby defence of respondent No.2 was struck off and he was directed to handover vacant and peaceful possession of the demised premises to the petitioners within thirty (30) days. Against the above order, First Rent Appeal No.74/2013 was filed by respondent No.2 which was allowed by the learned appellate Court vide impugned order dated 29.10.2013 whereby both the above orders passed by the learned Rent Controller under Sections 16(1) and 16(2) of the Ordinance were set aside and the matter was remanded to the learned Rent Controller to decide the rent case on merits.

2.         In the impugned order, it was observed by the learned appellate Court that in his written statement respondent No.2 had denied the relationship of landlord and tenant as well as execution of any tenancy agreement between the parties, and that respondent No.2 was in possession of the demised premises prior to the date of the alleged tenancy agreement filed and relied upon by the petitioners. In view of the above observations, it was held by the learned appellate Court that unless the issue of relationship of landlord and tenant was established, tentative rent order could not be passed by the learned Rent Controller by directing respondent No.2 to deposit arrears or future rent, and accordingly the appeal filed by respondent No.2 was allowed in the above terms through the impugned order.

3.         It may be noted that Suit No.13/2012 was filed by respondent No.2 against the petitioners for specific performance of an agreement of sale in respect of the demised premises. In his said Suit, it was alleged by respondent No.2 that the demised premises were purchased by him from one Mst. Farman Bibi, the mother and predecessor-in-interest of the petitioners, but she did not perform her agreed part of the contract nor did her legal heirs (the present petitioners) transfer the demised premises in his favour. The petitioners / defendants filed an application in the above Suit for rejection of the plaint under Order VII Rule 11 CPC which was allowed by the learned trial Court vide order dated 17.10.2014 whereby the plaint was rejected on the grounds that the Suit was barred by limitation and also under Sections 21 and 28 of the Specific Relief Act, 1877. It is an admitted position that the above order of rejection of the plaint of his Suit claiming title of the demised premises was not challenged by respondent No.2, and thus the same attained finality long ago.

4.         I have heard learned counsel for the parties at length and with their assistance have also examined the material available on record. It has been frankly conceded on behalf of respondent No.2 that he has not paid or deposited rent for any period, as claimed by the petitioners and/or as ordered by the learned Rent Controller, or otherwise ; the demised premises are still in the names of the petitioners ; the same were never transferred in his name ; plaint of the Suit filed by him seeking specific performance of alleged agreement for sale in respect of the demised premises was rejected ; and, he did not prefer any appeal against such rejection despite the fact that he was claiming ownership of the demised premises and had denied relationship of landlord and tenant. In view of the above admitted position, finding of the learned appellate Court that unless the issue of relationship of landlord and tenant was established, tentative rent order could not be passed against respondent No.2 directing him to deposit arrears or future rent, is contrary to the law laid down by the Hon’ble Supreme Court, which is briefly discussed below :

I.          In Haji Jumma Khan V/S Haji Zarin  Khan, PLD 1999 SC 1101, it was held, inter alia, by the Hon’ble Supreme Court that till the time that the 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 and landlord of the premises, and till such time the relationship between the parties would be regulated by the terms of the tenancy ; genuineness or otherwise of alleged sale agreement and its consequential effect will be independently determined by the Civil Court ; and, ejectment proceedings could not be resisted by taking shelter under Section 53-A of the Transfer of Property Act.

II.         In Kassim and another V/S S. Rahim Shah, 1990 SCMR 647, the Hon’ble Supreme Court was pleased to hold that till such time the Civil Court passes a decree against the landlord in a Suit for specific performance, landlord was entitled to recover rent.

III.        In Muhammad Iqbal Haider and another V/S V^th Rent Controller/Senior Civil Judge, Karachi Central and others, 2009 SCMR 1396, it was held, inter alia, by the Hon’ble Supreme Court that Article 115 of the Qanun-e-Shahadat lays down that during the continuance of the tenancy, no tenant of immovable property shall be permitted to deny the title of his landlord ; once a person was prima facie shown to be inducted as a tenant of the demised premises, he could not claim any exemption from payment of rent on account of institution of Suits for specific performance and cancellation of sale deed ; the relationship of landlord and tenant is not severed even if the execution of an agreement to sell is admitted ; and, institution of two Civil Suits by the tenant one for specific performance of the agreement and the other for cancellation of sale deed in favour of the landlord, per se would not be sufficient to refuse compliance of an order passed by the Rent Controller under Section 16(1) of SRPO pending final determination.

IV.       In Syed Imran Ahmed V/S Bilal and another, PLD 2009 SC 546, it was held,  inter alia, that a sale agreement in favour of a tenant does not itself create any interest or even a charge on the property in dispute ; and, till such time that a person suing for ownership of property obtains a decree for specific performance in his favour, he cannot be heard to deny the title of the landlord or to deprive the landlord of any benefits accruing to him or arising out of the said property.

V.        In Abdul Rasheed V/S Mqbool Ahmed and others, 2011 SCMR 320,it was held, inter alia, by the Hon’ble Supreme Court that it is settled law that where in a case filed for eviction of the tenant by the landlord, the tenant takes up a position that he had purchased the property and hence is no more a tenant then he has to vacate the premises and file a Suit for specific performance of the sale agreement and if he succeeds, he would be given easy access to the premises ; and, relationship between the parties for purposes of jurisdiction of Rent Controller stood established and by passing tentative rent order, the Rent Controller had carried out summary exercise by deciding such relationship. The order passed by the Rent Controller was maintained by the Hon’ble Supreme Court.

5.         It would be seen that it has been consistently held by the Hon’ble Supreme Court that if the tenant asserts that he is no more a tenant as he had purchased the property, even then he has to vacate the property and file a Suit for specific performance of the sale agreement, and he would be entitled to possession of the property in accordance with law only if he succeeds in his Suit. It is also well-settled that till such time the Civil Court passes a decree against the landlord in a Suit for specific performance, landlord would be entitled to recover rent. In the present case, it is an admitted position that plaint of the Suit filed by respondent No.2 seeking specific performance of the alleged sale of demised premises in his favour, was rejected, and as he did not challenge the order of rejection of his plaint, the order attained finality long ago. This means that he made an attempt to establish his alleged right and title in respect of the demised premises, but failed in such attempt. It also means that after having failed in his aforesaid attempt, he has no other or further remedy in law to claim or enforce his alleged right or title in respect of the demised premises. Therefore, the orders passed by the learned Rent Controller for deposit of rent and then for striking off the defence of respondent No.2 due to non-compliance of the said order by him, were in accord with the law laid down by the Hon’ble Supreme Court.

6.         In view of the legal position discussed above, the impugned order passed by the learned appellate Court, being not sustainable in law, cannot be allowed to remain in the field. Accordingly, the impugned order is hereby set aside. Respondent No.2, who is in possession of the demised premises and is enjoying the same for the last more than 17 years admittedly without paying any rent or consideration to the petitioners, is directed to hand over physical, vacant and peaceful possession of the demised premises to the petitioners without fail within thirty (30) days, failing which writ of possession be issued by the learned Executing Court with or without police aid, as the case may be, without notice to respondent No.2.

7.         Foregoing are the reasons of the short order passed by me on 22.01.2019 whereby this petition was allowed in the above terms with no order as to costs.

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                                                                                                                   J U D G E