IN THE HIGH COURT OF SINDH AT KARACHI

CP No.S-268 of 2011

1.      For orders on CMA No.1221/2011

2.      For Katcha Peshi

 

2-2-2012

Mr. Muhammad Saleem Mangrio, Advocate for Petitioner

Mr. Muhammad Rashid, Advocate for Respondent No.1

 

ORDER

AHMED ALI M. SHAIKH, J.-  Through these proceedings, the Petitioner has impugned the order dated 25-10-2011 passed by the learned 1st Additional District Judge, Karachi East, in First Rent Appeal No.102 of 2005, filed by the Respondent No.1 whereby he has allowed the Appeal, set-aside the impugned order dated 31-8-2005 and directed the Rent Controller to decide the Rent Case No.262 of 2004 after framing necessary issues, recording evidence and hearing the parties.

2.         Facts of the case are that Respondent No.1 filed Rent Case No.262 of 2004 seeking ejectment of the Petitioner on the ground that by virtue of sale deed dated 31-10-2002 he has purchased premises bearing No.71/2, Muslimabad Cooperative Housing Society, Karachi, from previous owner Mst. Ambreen Mehmood and the Petitioner since 11-11-2002 has not paid the agreed monthly rent. The Respondent after service filed written statement denying the relationship of landlord and tenant and claiming that instead of Mst. Ambreen Mehmood one Haji Abdul Razzaq was the real owner of the premises who in the year 2000 has allowed him to use a portion of the demised premises on payment of rent. However, on 31-8-2005 the Rent Controller, after hearing the parties, has dismissed an Application under Order I Rule 10 CPC filed by said Haji Abdur Razzaq. Ultimately on an application under Section 151 CPC read with Section 15 of the Sindh Rented Premises Ordinance, 1979, the Rent Controller dismissed the Ejectment Application and in Appeal the matter was remanded to the Rent Controller for decision as above.

3.         At the very outset, learned Counsel for the Petitioner has contended that neither the Respondent No.1 is owner of the premises in question nor there existed any relationship of landlord and tenant between Petitioner and Respondent No.1 as the premises belonged to one Haji Abdur Razzaq whom he was paying the monthly rent. On the other hand, learned Counsel for the Respondent No.1 has supported the impugned order and submitted that the same is based on settled principles of law and cannot be upset in these proceedings.

4.         Heard learned Counsel for the parties and perused the record. From the pleadings it appears that the Respondent No.1 has filed Rent Case No.262 of 2004 seeking ejectment of the Petitioner from premises in question on the ground of default. The Petitioner denied the relationship of landlord and tenant and upon an application filed by him, the ejectment application was dismissed by the Rent Controller, without bothering to frame issues, more particularly, in respect of relationship of landlord and tenant and recording evidence on the issues. Therefore, in law, the impugned order cannot be disturbed as the matter was simply remanded by the Appellate Court for decision by the Rent Controller after framing issues, recording evidence and hearing the parties.

5.         A perusal of the file also shows that on 24-4-2010, counsel for the Petitioner has filed a statement before the Appellate Court, which reads as under:-

“No relationship of landlord and tenant ever existed between the Appellant and the Respondent. In fact one Mr. Abdul Razzak the real owner of the plot of land bearing No.71, Muslimabad Cooperative Housing Society, Karachi, had rented out the premises in question to the Respondent. The Respondent used to pay monthly rent to the said Mr. Abdul Razzak who was his landlord. On 31st March, 2010, the Respondent has vacated the premises in question and has handed over its vacant peaceful possession to Mr. Abdul Razzak (the landlord/real owner). Under these circumstances, the above rent appeal has become infructuous, which is liable to be dismissed with no order as to costs.”

 

The learned Counsel for the Petitioner has also submitted that the Petitioner has already vacated the premises in question, as mentioned in the statement, therefore, his grievance is over and he cannot invoke the Extraordinary Constitutional Jurisdiction of this Court.

6.         For the foregoing reasons, I do not find any merit in the instant Petition wherein factual controversies have been raised, which cannot be resolved through these proceedings. Consequently, this Petition being devoid of merits is dismissed in limine alongwith the listed application.

                                                                                                                                    Judge