ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Constitutional Petition No. S – 566 of 2019

Date	Order with Signature of Judge

For Direction :

For orders as to maintainability :

25.04.2019 : Mr. Jawad Hayder Rizvi, advocate for the petitioner.

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Rent Case No.762/2017 was filed by the petitioner for eviction of respondent No.3 on the ground of default in payment of rent. It was the case of the petitioner that he was the lawful owner of commercial premises bearing Office No.4, measuring 2,184 sq. ft., situated on the first floor of the building known as ‘Hassan Chambers’, constructed on Plot No.DC-7, Block 7, Kehkashan, Clifton, Karachi (‘subject property’), and respondent No.3 was his tenant in respect thereof by virtue of a registered lease agreement dated 12.08.2006. Vide impugned order dated 24.04.2018, the eviction application filed by the petitioner was dismissed by the learned Rent Controller on the ground that relationship of landlord and tenant does not exist between the parties as the petitioner was not the owner / landlord of the subject property. It was held by the learned Rent Controller that after the gift of the subject property in favour of his sister, the petitioner had ceased to be the owner thereof. First Rent Appeal No.160/2018 filed by the petitioner against dismissal of his eviction application was dismissed by the learned appellate Court vide impugned order dated 16.02.2019 by upholding the findings of the learned Rent Controller.

2. Record shows that a general power-of-attorney (page 259) in respect of the subject property was executed by the petitioner in favour of his parents which was duly registered on 17.06.2014, whereby he authorized his parents / attorneys, jointly or severally, to exercise the powers conferred to them in relation to the subject property. Record further shows that on the basis of the said registered general power-of-attorney, the petitioner’s mother executed a declaration and confirmation of oral gift (page 287) in respect of the subject property in favour of her daughter / petitioner’s sister, which was also registered on 28.08.2015. Both the above mentioned registered documents were discussed in his order by the learned Rent Controller while holding that in view thereof the petitioner had ceased to be the owner / landlord of the subject property.

3. On the last date of hearing, learned counsel for the petitioner was directed to satisfy the Court regarding maintainability of this petition in view of the above. It is contended by him that though the above registered general power of attorney in respect of the subject property was executed by the petitioner, the same was cancelled by him on 09.05.2015 by executing a ‘Revocation of Power of Attorney’ (page 277) ; the gift made in pursuance of the said general power of attorney, after its revocation, was void ; in any event, the petitioner was not aware of the gift as it was executed by his mother and when it came to his knowledge, he immediately filed Suit No.2508/2017 (page 309) at the original side of this Court, inter alia, for its cancellation, which is subjudice ; and, the petitioner’s sister / donee and his parents / attorneys have also filed Suit No.1989/2017 (page 357) at the original side of this Court, inter alia, for declaration that the revocation of the above general power of attorney by the petitioner is illegal, the gift in favour of the donee is valid and legal, and the donee is the lawful owner of the subject property, which Suit is also subjudice. Learned counsel submits that since the gift executed on behalf of the petitioner is under challenge and the dispute is subjudice at the original side of this Court, the learned Rent Controller ought not to have dismissed his eviction application and the same should have been decided on merits.

4. The admitted position that has emerged from the above is that a registered general power-of-attorney in respect of the subject property was executed by the petitioner in favour of his parents authorizing them, jointly or severally, to exercise the powers stipulated therein in relation to the subject property ; on the basis of the said registered general power-of-attorney, the petitioner’s mother executed a registered gift in respect of the subject property in favour of her daughter / petitioner’s sister ; and, the said registered gift is still in the field. It may be noted that though the registered gift executed by his mother has been challenged by the petitioner, the execution of the said gift by the mother is not disputed by him. The said registered gift has been challenged by the petitioner on the ground that the same was executed by his attorney after revocation of the power-of-attorney. It may be observed that the ‘Revocation of Power of Attorney’ purportedly executed by the petitioner is an unregistered document and is attested only by a Notary Public. Thus, the petitioner has sought cancellation of a registered document on the basis of an unregistered document which is not permissible in law.

5. In view of the above, pendency of the above Suits does not help the petitioner in any way nor can the same improve his case. Admittedly, the registered gift of the subject property is still intact ; meaning thereby that for all legal intent and purposes the donee is the rightful and lawful owner of the subject property. Therefore, both the learned Courts below were right in concluding that the eviction application filed by the petitioner was not maintainable as he was not the owner / landlord of the subject property, and such conclusion was drawn on the basis of the position / material that was available before the learned Courts. Accordingly, concurrent findings of both the learned Courts below do not require any interference by this Court. It may be observed that if the petitioner succeeds in getting the registered gift cancelled in accordance with law, he will be at liberty to exercise his rights in respect of the subject property as the owner / landlord thereof, but not as long as the above registered gift is subsisting.

6. In view of the above discussion, the petition and listed applications are dismissed in limine with no order as to costs.

J U D G E