Order Sheet
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Constitution Petition No.S-13 of 2008
(Abdul Ghafoor and others v/s. Mst. Sakina and others)
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Date of Hearing |
ORDER WITH SIGNATURE OF JUDGE |
For hearing of main case.
Petitioners: Through Mr. Ghulam Dastaghir A. Shahani, Advocate
Respondents: Through Mr. Muhammad Ashique Dhamraho, Advocate
Mr. Abdul Waris Bhutto, Assistant Advocate General, Sindh.
Date of hearing : 02.05.2025.
Date of Decision : 12.05.2025.
O R D E R
Nisar Ahmed Bhanbhro, J.- Through the instant Petition, Petitioner has challenged order dated 03.10.2007, passed by the Court of Learned 1st Additional District Judge Jacobabad (Appellate Court) in Rent Appeal No 03 of 2005 “Re Abdul Ghafoor Versus Rasool Bux and another,” whereby Rent Appeal filed by Petitioners was dismissed and Order dated 06.04.2000 passed by the Court of Learned 1st Senior Civil Judge & Rent Controller Jacobabad (Rent Controller) in Rent Application No 12 of 1998 “Re-Abdul Ghafoor Versus Rasool Bux and another,” dismissing the rent application of Petitioner was maintained. The Petitioner through instant Petition has claimed following relief:
“In view of above submissions and discussions it is prayed that this Honourable Court may graciously be pleased to declare that the impugned order dated 03.10.2007 passed by the learned 1stAdditional District Judge, Jacobabad and order dated 06.04.2000, passed by the learned 1stSenior Civil Judge and Rent Controller, Jacobabad are illegal, unlawful, ultra wires, wrong, defective, void, without legal justification, without jurisdiction and without lawful authority and are not sustainable in law and in facts and be further pleased to set aside both the impugned orders dated 03.10.2007 and 06.04.2000 passed by the learned lower Courts below and costs of the petition may kindly be awarded to the petitioners though out the case and any other relief deemed fit and proper in circumstances of the case may be granted to the petitioners to which the petitioners are found entitled.”
2. The facts of the case in brief are that the Petitioner/Applicant filed rent application under section 15 of Sindh Rented Premises Ordinance 1979 (SRPO) before Rent Controller against Respondent/Opponent Rasool Bux S/O Miran Bux Vanjara (husband of Respondent No.1 and father of respondents No.2 to 7), being Rent Application No.12 of 1998 titled “Abdul Ghafoor Versus Rasool Bux,” stating therein that Petitioner/Applicant is owner of the demised premises/shop bearing city survey No.170/1, Ward No.2, Sarafa Bazaar, Jacobabad, which was rented out to Opponent/Respondent over a rent of Rs.2000/- per month. Respondent / Opponent failed to pay monthly rent of demised premises with effect from 01.09.1994 till filing of the rent application, as such committed willful and deliberate default in payment of rent. Petitioner/Applicant required the demised premises in good faith for personal use, for business purpose of his son. Petitioner/Applicant through his Counsel served a legal notice dated 21.04.1997 by registered post/AD calling upon the Respondent/Opponent Rasool Bux Vanjara to pay all the arrears of rent, to vacate the demised premises and hand over its possession to the Petitioner/Applicant as the same was required in good faith for personal use. Opponent / Respondent replied the legal notice, denied therein the ownership and relationship of Petitioner with himas that of tenant. Petitioner/Applicant being compelled filed rent application and prayed that Respondent/Opponent Rasool Bux may be directed to hand over the vacant possession of demised premises/shop bearing city survey No.170/1 ward No.2, Sarafa Bazaar, Jacobabad and pay arrears of rent.
3. That after service of summons, Respondent/Opponent Rasool Bux appeared before Learned Rent Controller, filed his written reply on 05.12.1998 raising preliminary objection of maintainability of rent application on the ground that earlier rent application filed by Petitioner/ Applicant was dismissed vide order dated 02.05.1998 on the same and identical grounds, there did not exist any relationship of landlord and tenant between the parties, the instant rent application was filed with ulterior motives to usurp the property of Muhammad Bux (Respondents No.8 to 13) bearing city survey No.169 Ward No.2 Jacobabad and the property in question is the staircase of city survey No.169 ward No.2, Jacobabad which belonged to Mohammed Bux and it did not belong to Petitioner/Applicants, nor it is the property bearing city survey No.170/1, Ward No.2, Jacobabad, he further stated that original owner Mohammed Bux had challenged the claim of ownership of Petitioner/Applicant by way of filing FC suit No.5/1997 titled Muhammad Bux and others Versus Abdul Ghafoor and others in the Court of Learned 1st Senior Civil Judge, Jacobabad and finally prayed for the dismissal of rent application.
4. That on 21.05.1999 Mohammed Bux filed an application under section 20 of SRPO read with Order-1 Rule 10 CPC praying therein for joining him as party to rent application in the array of opponents to defend the above rent application, which application was allowed and Petitioner/Applicant was directed to file amended rent application vide order dated 08.06.1999. Petitioner/Applicant filed amended rent application by making Mohammed Bux as Opponent No.2 who filed written reply on 24.09.1999 wherein he supported contentions of opponent No.1 (Rasool Bux), he claimed that demised premises were part of City Survey No 169 which was owned by him and a staircase was built over that portion to connect first floor of shop with ground floor. He had leased out some portion of staircase to Rasool Bux for business purposes. The Rent Application was misconceived, thus liable to be dismissed.
5. Out of the divergent pleadings of Parties, Learned Rent Controller framed five points for determination.In support of respective claims, petitioners/applicants examined Haji Allah Wasayo Pathan, witnesses Sultan Ahmed, Haji Ghous Bux and Zulfiqar Ahmed, official witnesses Allah Bux and Manzoor Hussain. All the petitioner’s/applicant’s witnesses including their attorney were cross examined by the opponent’s/respondent’s counsel except the witness Haji Ghous Bux who was not cross examined. The opponents examined Rasool Bux Vanjara and Muhammad Bux Vanjara and closed the side for evidence.
6. Learned Rent Controller after hearing arguments of parties through respective Learned Counsels, dismissed rent application vide order dated 06.04.2000. The Petitioner/Applicant preferred rent appeal under section 21 of SRPO before this Court being rent appeal No.7 of year 2000. As a result of amendments in SRPO, the District Courts were conferred the appellate jurisdiction, therefore, the rent appeal was transferred to theCourt of Learned District Judge Jacobabad, who assigned the same to the Appellate Court for disposal in accordance with law. It is pertinent to mention here that opponent No.1/predecessor in interest of Respondents No.1 to 7 namely Rasool Bux died his natural death during pendency of the rent appeal, hence respondents No.1 to 7 were impleaded as party being legal heirs of late Rasool Bux Vanjara. The rent appeal No.7 of 2000 was re-numbered as rent appeal No.3 of 2005. That after hearing the arguments of Learned Counsel for parties, Appellate Court dismissed the rent appeal vide order dated 03-10-2007 and maintained the order of Rent Controller, hence this Constitutional Petition.
7. Mr. Ghulam Dastagir Shahani Learned Counsel for the Petitioner submitted that there existed a relationship of Landlord and Tenant between the parties, but the Courts below failed to appreciate the same. He contended that Petitioner being Landlord gave the demised premises toTenant/ Respondent Mohammed Bux under oral acknowledgment as a result of trust, which was broken, he contended that written rent agreement was not mandatory. He contended that Opponent filed a civil suit before the same Court, wherein survey of the demised premises was ordered and survey report established that demised premises were owned by Petitioners. He contended that there was serious misreading and nonreading of the evidence by Courts below which required reappraisal by this Court. He contended that Petitioner established his relationship as that of Landlord with Respondents as that of Tenant but Courts below failed to appreciate the same. He prayed for allowing the Petition. He placed reliance on the case of Sikandar Sahai Versus Bhagwant Sahai reported in AIR (33) 1945 Oudh 33, Kasim and another Versus S. Rahim Shah (1990 SCMR 647), Feroz Ahmed Versus Mst Zehra Khatoon (1992 CLC 735), Ali Muhammad Khan versus Riazuddin Khan (PLD 1981 Karachi 170) and Mst Saeeda Fatima and another Versus Abdul Hamid and 04 others (PLD 1983 SC 258)
8. On the other hand; Mr. Muhammad Ashique Dhamraho Learned Counsel for the Respondents/Opponents contended that the petition is not maintainable. Petitioner/Applicants failed to establish his relationship of Landlord with the Respondent/Opponent. He contended that Petitioner/Applicants failed to produce any written rent agreement or payment of rent amount through oral and documentary evidence. Title of petitioner/Applicants respecting alleged demised premises was challenged before Civil Court and suit was decreed in favor of Respondents/Opponents, which decree remained unchallenged and attained finality. He contended that Courts below dismissed the rent application by proper appraisal of evidence, which did not require interference by this Court, he prayed for dismissal of Petition.
9. Learned Assistant Advocate General contends that the dispute between the parties was private in nature and government interest was not involved. However, the orders passed by this court would be complied with in letter and spirit.
10. Heard Parties through their Learned Counsel and examined record.
11. I have given due consideration to the contentions advanced at Bar and examined the record. Petitioner/Applicant filed rent application before Rent Controller asserting that he was owner of the demised premises/shop constructed over city survey No.170/1 and rented out the same to opponent Rasool Bux who defaulted in payment of rent from 01-09-1994. He, therefore, sent a legal notice through his counsel for payment of rental amount and vacating the shop, which was replied, wherein the relationship of tenant was denied. He filed rent application wherein again relationship was denied by the opponent. Based upon the pleadings of parties Learned Rent Controller framed 05 points for determination, wherein the point No.2 related to the determination of relationship between the parties. Petitioner/Applicant filed affidavit in evidence of Haji Allah Warayo, wherein he supported the contents of the application. In cross examination he admitted that the no rent deed was executed for disputed premises and all along Rasool Bux has not paid any rent. He denied the suggestion that the shop was constructed over city survey No.169 which belonged to Muhammad Bux. However, he admitted that Muhammad Bux and others had filed a suit disputing the title of shop before the court of law. Applicant/Petitioner also examined one Sultan Ahmed, in cross examination he admitted that they had not approached Rasool Bux for payment of rent. Applicant/Petitioner also examined Zulfiqar Ahmed and Allah Bux who produced abstract of survey number 170 and PT I form of property. Respondent/Opponent Rasool Bux examined himself and Muhammad Bux. Rasool Bux in his affidavit in evidence emphatically denied relationship of tenant and landlord and payment of any rent. Muhammad Bux in his affidavit in evidence deposed that Rasool Bux was his licensee, opponents were cross examined to the effect that Rasool Bux was Tenant but nothing came out supportive to Petitioner/ Applicant.
12. Scanning of the evidence adduced by the parties reflects that the opponent/respondent had not paid any rent to the Petitioner/ Applicant in respect of demised premises. The alleged default in payment of rent spanned over a period of four years and Petitioner/Applicant remained silent since 1994 till year 1998. He did not take any efforts to get the demised premises vacated, even he did not file a rent application with promptitude for the payment of rent, but filed rent application in the year 1999 without any supporting document on record viz; the written rent agreement or receipt of the payment of the rent. Petitioner/Applicant even did not examine any shop keeper from Sarafa Bazar where the demised premises are located, to establish that at any times he was under the ownership of shop and he rented out the same to the Respondent/opponent. There is even no denial to the fact that the demised premises are situated over a staircase which leads to the upper portion of the shop of Muhammad Bux and said Muhammad Bux undisputedly is the owner of adjacent property viz; city survey No.169. This aspect of the case also establishes the claim of the opponent that he was the licensee of said Muhammad Bux. The parties were already under litigation over title of the demised premises and rent court cannot determine the status of ownership of parties.
13. To avoid such eventualities as surfaced between the parties under this litigation, the law (SRPO) requires parties to enter into rental business through an agreement in writing, which in the instant case lacks. Even if the parties do not enter into a written rent agreement, then it was incumbent upon parties to get a written acknowledgement of monthly rent. Though Petitioner/Applicant claimed that he was paid rent for one month only but failed to furnish proof in that regard. Section 5 of the SRPO is relevant provision of law specifying the manner in which agreement between Landlord and Tenant be executed, section 5 reads as under:
5. Agreement between Landlord and Tenant--- (1) The agreement by which landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registered under any law for the time being in force, it shall be attested by, signed by, and sealed with the seal of the controller within whose jurisdiction the premises is situate or, any Civil Judge or First Class Magistrate.
(2) Where any Agreement by which a landlord lets out any premises to a tenant is compulsorily registerable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registerable, the original deed duly attested under subsection (1), shall be produced and accepted in proof of the relationship of the landlord and tenant.
Provided that nothing in this section shall affect any agreement between thelandlord and tenant immediately before coming into force of this Ordinance.
This provision of law envisages that rent agreement if registerable be registered otherwise it be acknowledged in writing and attested by concerned Rent Controller in whose jurisdiction the premises are situated or by the Magistrate. The law requires doing the things in a particular manner, this provision of law benefits both Landlord and Tenant and preserves their rights of ownership and tenancy and helps resolve any ambiguity. Though this provision of law is directory in nature and in no manner bans tenancy through oral agreement, but in case of any dispute between the parties it will require high standards of proof through oral evidence in absence of written rent agreement.
14. The word “shall” used in Section 5 though not mandatory but directory, as non-following of this provision does not entail penal consequences, but in case of denial of terms and conditions of oral agreement, the implementation gets complicated, therefore these provisions of by the passage of time and keeping in view the degradation of moral values of society, has become a mandatory provision of law, not only the rent agreement be in writing but should be registered, or signed before the Rent Controller or Magistrate, because reasons for non-registration of rental agreements are to avoid payment of tax, this tax evasion results in loss to national exchequer, therefore parties entering into rent agreement must get it registered. The Courts of Law where Rent Applications are filed when find that Rent Agreement is registerable and not registered, before proceeding further must ask the parties to submit proof as to the tax deductions in lieu of rent profits, as payable under Income Tax Ordinance 2000. Parties may be non-suited if they fail to furnish proof as to the tax deductions from rental proceeds.
15. Learned Single Bench of this Court, dealt this issue of letting out premises on rent through Oral Agreement in the case of Mst. Fatima Versus Mst. Hanifa reported in1986 C L C 1613 in following manner:
“Section 5 provides a manner for making the agreement and care' has been taken to avoid any doubt or ambiguity in execution of the tenancy agreement. It is well‑settled that any person can enter into agreement of tenancy orally as well. It is not prohibited under law. However it is also well‑recognised that as the tenancy creates a valuable right it is advisable and convenient that it should be in writing to avoid dispute regarding terms and existence of relationship of landlord and tenant between the parties. Therefore, section 5 is in the nature of procedural provision which requires the agreement to be executed in a particular form, but it does not nullify the agreement not made in this form. As observed in Khuda Yar's case P L D 1975 S C 678, the procedural provisions are "desired with a view to impart certainty, consistency, and uniformity to the administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fides". Section 5 was designed to complement section 6. This was necessary as under section 6 after expiry of agreed period of tenancy, the tenancy did not only cease to be valid but under section 15 (2)(1) was liable to be ejected. Therefore, in order to press in service the provisions of sections 6 and 15(2)(i) it was necessary that the agreement of tenancy should be executed as provided by section 5. In my view section 5 requires agreement of tenancy to be made in writing in a particular form which shall if produced in Court will be accepted without any further proof but it cannot be extended to mean that where the agreement of tenancy is in writing but not in the manner provided by section 5 the relationship of landlord and tenant shall not be created between the parties. Refer Mushtaq Ahmad v. Abdul Sattar 1984 M L D 1. It is a well‑settled principle of interpretation that all the provisions of a statute are to be construed harmoniously and to avoid conflict. If a strict interpretation as contended by the learned counsel for the respondent is given to section 5 then the tenancy created orally cannot J be treated as valid and will run counter to the provision of section 2 (j) which defines tenant and does exclude tenancy created by oral agreement. It is significant to note that in section 5(2) the production of certified copy of registered document and where it is not compulsorily registerable then the original deed, duly attested as provided by subsection (1) shall be produced and accepted in proof of relationship. If a strict view is taken and this provision is held mandatory then although an unregistered agreement in terms of section 5 (2) was executed, if it is lost it cannot be proved by producing its copy. The provisions of section 5 do not confer any substantive right. They are procedural in nature. If the agreement of tenancy in writing is not in terms of section 5 then neither it is invalidated nor the parties are debarred from proving the relationship of landlord and tenant by proceeding and proving such agreement or other admissible evidence as provided under law.”
16. Petitioner/Applicant lodged claim of ownership of the demised premises and lending the same on rent as owner. He was burdened to prove his claim through a solid and reliable evidence that he was Landlord of demised premises which he failed to discharge. The petitioner/Applicant claimed that demised premises (shop) was rented out on 01-09-1994, per his claim rent for one month only was paid to him but he remained silent until 27-08-1999, when the present rent application was filed. Though non-payment of rent is a recurring causefor invoking jurisdiction of Rent Controller under SRPO seeking eviction and payment of rent but inordinate delay in adopting a legal course attaches a presumption of truth in favor of the claim of other party that Petitioner / Applicant was not Landlord of demised premises. It is a settled notion of law that courts favor vigilant but not the indolent litigant. In the present matter opponent/Respondent denied the relationship of Petitioner/Applicant as Landlord on the contrary claimed that Mohammed Bux was owner and Landlord of demised premises. On filing of rent application Opponent Mohammed Bux appeared in Court filed application seeking his impleadment as party to the proceedings which was allowed. In his reply opponent Mohammed Bux claimed himself to be the owner of demised premises with a specific assertion that said premises were part of City Survey No 169 but not the City Survey No 170 as claimed by Petitioner/Applicant. The pleadings of parties created a confusion regarding the ownership of demised premises which could not be settled by Rent Controller and fell within the jurisdiction of Civil Court. In the said circumstances, it was incumbent upon Petitioner/Applicant to agitate his claim of ownership before Civil Court but he did not. Contrary opponents/Respondents filed suit seeking declaration of ownership of demised premises. Trial Court decreed the suit partly in favor of Opponents, Petitioner/Applicant did not challenge the decree of Trial Court by way of Appealwhich attained finality against him. The Courts below rightly resolved that title of the demised premises was under dispute and Court of Rent Controller was not the forum for adjudication of such claim.
17. Hnoorable Supreme Court of Pakistan in the case of Rehmatullah v. Muhammad Ali reported as 1983 SCMR 1983, has determined the principle in cases involving dispute over title and relationship of Landlord and tenant in the following manner:
"It has already been held that when the decision of the issue regarding relationship of landlord and tenant depends solely and not only incidentally on question of the ownership and title to the property and it will not be possible for the Controller to decide the case without deciding the basic question involved regarding title, then in such like case it would not be appropriate to evaluate the situation by observing that the decision on question of title was only tentative. It has also been observed that the requirement of the relevant law contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be to decide the issue against the landlord and advise him to first get his title established before seeking ejectment. The decision of main issue depends directly on the decision regarding title in the present case."
18. In support of his claim as to the ownership of demised premises, Petitioner brought on record an abstract from city survey office, and copy of P.T.I Form, needless to say that abstract of city survey office and P.T.I form in no manner created right or title in the property, the entries in PT I Register are maintained for fiscal and fiduciary purposes for collection of tax by the Excise Department. The existence of mutation entry in the Record of Excise Department in the name of Petitioner/Applicantwas of no benefit to him as under rent proceedings for payment of rent and eviction, it only required to establish status as of Landlord of the demised premises. In the given circumstances it is always advisable for the parties to approach a Court of competent jurisdiction to establish a clear title in their names to enable them to seek for eviction or possession, as the case may be. The Courts below rightly brushed aside reliance on the mutation entry, in absence of any evidence which could connect the parties in a relationship of rent. Presuming for the sake of arguments, that the Petitioner/Applicant was owner of the demised premises, it needs to be determined as to whether he had to invoke the jurisdiction of Rent Controller or other forum to seek eviction of opponents/ Respondentsfrom demised premises when they denied any such relationship. Petitioner/Applicant in his cross-examination admitted that Respondent/Opponent did not pay any rent at any stage to him, thus Petitioner/Applicant failed to bring on record any evidence to prove that the Respondent/Opponent was Tenant. Since it was Petitioner, who had invoked the jurisdiction of Rent Controller, it was obligatory upon him to prove the existence of relationship of Landlord and Tenant. Petitioner neither produced any independent witness, nor any shop keeper from Sarafa Bazar to support his claim, nor produced any rent receipt to show that such a relationship existed between the parties. Rent Controller assumes jurisdiction to pass an order for eviction, payment of rent against a tenant, it is essential to bring a case under section 15 of SRPO for the eviction to prove that the person whose eviction is sought is in occupation of the premises in his capacity as a tenant and none other. In case of failure, the Rent Controller would be justified to decline the rent application as the matter would fall outside the purview of SRPO. To secure the rights of owners, the law provides other remedies to seek redressal of grievance of an unlawful dispossession or a trespass, and retrieve the possession of immoveable property, which in such eventualities is a proper course to adopt.
19. The Case law relied upon by Learned Counsel for the Petitioner is on different premise and with utmost respect do not touch the controversy in hand, thus are distinguishable.
20. This court under its writ jurisdiction enjoys supervisory jurisdiction to set at naught the orders of the Courts below when a case involving misreading or nonreading of the evidence,or a case that the courts below acted in excess of jurisdiction vested in them or failed to exercise the jurisdiction vested in them is made out. Petitioners failed to demonstrate that the findings of the Court below suffered from any of the above illegalities or irregularities, were infirm, illegal, perverse requiring interference by this Court.
21. In view of what has been discussed herein above, the Court is of the considered opinion that the Courts below have correctly appreciated the evidence of parties in reaching the conclusion that controversy involved in the matter related to dispute of ownership and Petitioners failed to establish relationship of Landlord an essential aspect to seek vacation of demised premises. The case of the Petitioner fell outside the purview of provisions of SRPO 1979, thus rent application was not maintainable and the concurrent findings of Courts below in that regard were in accordance with the principles settled by the Apex Court and did not require interference by this Court under its supervisory writ jurisdiction. Consequently, this petition being devoid of merits is dismissed with no order as to the costs.
Judge
Asghar/P.A