IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No. S-271 of 2008
Bilal
Versus
Syed Imran Ahmed & another
BEFORE:
Justice Azizullah M. Memon
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Date of Hearing: |
10.11.2008
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Petitioner: |
Through Mr. Muhammad Asif Qureshi Advocate.
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Respondent No.1: |
Through Mr. Ghulam Ali Khokhar Advocate.
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Azizullah M. Memon, J:- This Constitution Petition is filed by the petitioner through his attorney Muhammad Amin against the impugned order dated 15.5.2008 passed by learned V-Senior Civil Judge Karachi South in Rent Case No.1155/2005 (Syed Imran Ahmed versus Bilal), whereby the petitioner/tenant stands directed to deposit the arrears of amount of the rent tentatively; relevant observations of the learned Rent Controller are as under:-
"The contention of opponent is that there is no relationship of landlord and tenant between the parties. Learned counsel for the opponent contended that there is an agreement of sale in respect of demised shop such civil suit is pending for decision. The contention of the opponent is that the shop is purchased by one Muhammad Amin. They could not produce any agreement of sale. However, this rent case is completed and mature for final argument. The counsel for the opponent is voiding from final argument.
Under these circumstances I am of the considered view that the applicant cannot be deprived from the rent of the demised shop. In reported case of Jawaid Durrani vs. Shah Anwar and another (1999 MLD 2907). My Lord Mr. Justice Sarmad Jalal Osmany, was pleased to opine that:
"Plea raised by tenant was that there existed an agreement to sell between the tenant and the landlord for the demised premises---Tenant had also produced receipts of rent for the disputed period---Landlord had denied both the receipt of rent as well as alleged sale of the property to the tenant, thus, facts of the case were totally disputed. ---Rent Controller in the tentative rent order did not allow landlord to withdraw disputed amount of rent from Court---Rent Controller had the discretion to determine as to what type of summary inquiry would have been made---Where the facts of the case were totally disputed and the order was passed by the Rent Controller, after giving a fair hearing to both the sides, in a judicious manner, no exception could be made to the same---Order for deposit of tentative rent was rightly passed by Rent Controller in circumstances."
Under these circumstances and following findings of the above reported case and without touching merits or demerits of the case which might effect either of the parties. To protect the right of applicant I direct the opponent to deposit the arrears of rent with effect from January 2004 TO April 2008 (52 months) at the rate of Rs.15000/- per month amounting to Rs.780,000/- within 45 days and future monthly rent on or before 10th of every succeeding calendar month. As the relationship of landlord and tenant is disputed by the parties and to protect the right of opponent, the applicant is not allowed to withdraw the rent. The application is disposed of with no order as to costs"
2. Learned counsel for the petitioner has cited the cases of Wali Muhammad v. M. Sharif Bhatti (NLR 1992 Civil 392) and Kohitex Pvt. Ltd. v. Muhammad Mukhtar (NLR 1995 Civil 134) wherein it has been held that a writ petition will always be maintainable against an order, which is passed against the settled principles of law.
3. Learned counsel for the petitioner has stated at the bar that due to inadvertence the document of Power of Attorney, which was executed by the petitioner Bilal in favour of his attorney Muhammad Amin, could not be filed with the memo of this petition, whereas the same has been prayed by him to be taken on the record, having been so produced by him. Same is taken on the record.
4. The facts, giving rise to the filing of present petition, are that the respondent Syed Imran Ahmed claims himself to be the owner of the premises constructed on Sub-Plot No.31/4 and 6, Survey Sheet No.PR-2, Preedy Quarters Building, known as Shahjehan Centre, Abdullah Haroon Road, Karachi, and that the petitioner is his tenant therein at the rate of Rs.15,000/- per month with effect from August, 2003. The respondent filed Rent Case No.1155 of 2005 in the Court of Rent Controller stating therein that the petitioner, being his tenant, committed default in payment of monthly rent w.e.f. 2004 till filing of the said ejectment case and, therefore, prayed for his ejectment from the said premises.
5. The petitioner filed his written statement denying the respondent as owner of the said premises and also denying to be his tenant therein and, according to him, the said property was agreed by the respondent to be sold out to him for consideration amount of Rs.13,00,000/- by means of an unregistered sale deed and also received amount of Rs.100,000/- as earnest money towards such transaction, which was executed by the father of the respondent on 20.5.2003 and that subsequent to the same, the respondent declined to execute the sale deed and to get the same registered and, therefore, the petitioner filed a suit for specific performance of the contract, which is still pending before the competent Court of civil jurisdiction.
6. Learned Rent Controller recorded the evidence of the parties in the said ejectment case and learned counsel appearing for both the parties have admitted at the bar that the parties have already produced all their respective evidence and that the ejectment case is now pending only for the purpose of hearing of final arguments, to be followed by the decision on the merits of the ejectment application itself.
7. Learned counsel for the parties, having been heard, they have relied upon the case law, for and against, on the points involved in this case.
8. Learned counsel for the respondent has mostly placed reliance on the unreported case decided by Hon'ble Supreme Court of Pakistan on 31.7.2008 bearing Civil Appeals No.842 and 843 of 2006 (Mst. Seema Begum v. Muhammad Ishaq & others), relevant observations of the same are contained in Para No.4 and onwards, which read as under:-
"4. We have considered the submissions of learned counsel for the appellant and respondent No.1. Admittedly appellant is owner of properties in question and respondent is in possession of the same since 1982. The respondent had taken the plea that appellant had agreed to sell suit property in his favour and he is in possession as owner not as tenant. But the case of appellant is that respondent is her tenant and agreement to sell dated 13.10.1983 is a forged/fabricated document. The respondent stated that he had already filed suit for "specific performance" of contract on the basis of said agreement. However, learned counsel for the appellant submitted that the suit brought by the respondent had been dismissed on 2.8.2006 due to non-prosecution and non-appearance of plaintiff and the same has not been restored so far. The respondent who is present in Court in person states that he had filed application for restoration of his suit which is still pending. From the record, it is established that as per plea of the respondent, he had purchased the property through agreement to sell of property in dispute, which was executed on 13.10.1980 and he had filed a suit for specific performance of agreement on 29.04.2002, after expiry of period of limitation as provided in Article 113 of the Limitation Act and that too, when the appellant intended to file the ejectment petition. The respondent, in fact, slept over his right for such a long period of about 20/22 years and remained in a state of dormancy. Even otherwise, mere pendency of civil suit in court cannot defeat, prima facie, established title for purpose of rent cases under the Rent Restriction Ordinance. The genuineness or otherwise of alleged agreement and its consequential effect would be independently determined by the civil court. It is settled law that till the time tenant was 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 or landlord of the premises and the relationship between the parties till such time would be regulated by the terms of tenancy and the tenant cannot legitimately resist the maintainability of ejectment proceedings pending against him on the ground of sale agreement. This argument is strengthened by the dictum laid down in the cases of Haji Jumma Khan v. Haji Zarin Khan (PLD 1999 SC 1101), Iqbal & 6 others v. Mst. Rabia Bibi & another (PLD 1991 SC 242), Waheed Ullah v. Rehana Nasim (2004 SCMR 1568) and Muhammad Nazir v. Saeed Subhani (2002 SCMR 1540). So in the circumstances of the case, we find that claim of respondent is baseless. It is also settled proposition of law that once a person acknowledges himself to be a tenant of a landlord, the principle of estoppel as enunciated in Article 115 of Qanun-e-Shahadat Order would come into play, debarring such tenant to deny the title of his landlord. Reference can usefully be made to the cases of Habib Khan v. Haji Haroon-ur-Rashid (1989 CLC 783) and Nazir Ahmad v. Mst. Sardar Bibi & others (1989 SCMR 913). The impugned order shows that learned High Court has not adverted to this aspect of the case and decided the same arbitrarily. As such the impugned order being without backing of authority of law is liable to be set aside.
5. The sale agreement did not confer any title on the tenant unless the same was determined by the court of competent jurisdiction. Reliance in this context can be placed on the case of Mst. Bor Bibi & others v. Abdul Qadir and others (1996 SCMR 877). Such agreement (agreement to sell) would not authorize non-payment of rent by tenant from the date of entering into the agreement. Reference may be made to the case of Haji Jan Muhammad v. Ghulam Ghous and 2 others (1976 SCMR 141) and Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan (PLD 1986 Karachi 74).
6. It is pertinent to note that according to impugned order notices were issued to respondent (present appellant) but she did not appear. No ex-parte, proceedings were initiated against her and instead of admitting the petitions to regular hearing, the same were allowed on the same day.
7. The most important aspect of the case is that respondent Muhammad Ishaq had challenged the interim order passed by learned Rent Controller in the Constitution Petition. As such the same was not maintainable and impugned order is liable to be set aside on this score alone.
8. For what has been discussed above we are of the considered opinion that order passed by Rent Controller is just and proper. The impugned order is not sustainable in the eyes of law. So these appeals are accepted and the impugned order passed by the High Court is accordingly set aside and that of the Rent Controller restored. No order as to costs."
8. The observations recorded by Hon'ble Supreme Court in the said unreported judgment of its Para 5 are indicative of the fact that the person in possession of the premises, involved in the case before Hon'ble Supreme Court, was admittedly tenant at the first instance, who, at a later stage, allegedly agreed to purchased the tenanted premises.
9. In Afzal Ahmad Qureshi v. Mursaleen (2001 SCMR 1434) Hon'ble Supreme Court of Pakistan was pleased to record observations that in the absence of relationship of landlord and tenant between the parties, the question of disputed title or ownership of the property is to be determined by a competent civil Court and such controversy do not fall within the jurisdictional domain of the Rent Controller. Relevant observations appear at Para 4 of the said reported case, which read as under:-
"4. We have carefully examined the contention as agitated by the petitioner and also perused the order of learned Rent Controller and the judgment impugned. We have thoroughly gone through the entire evidence. It transpires from the scrutiny of record that the respondent has seriously contested the title and ownership of property which, according to him, belonged to one Nafisa Begum and Shahid Iqbal was neither competent nor authorized for its sale or transfer from whom it was allegedly purchased by the petitioner. It is also the case of respondent that neither any tenancy agreement was executed between the parties nor he had ever paid rent to the petitioner and as such the petitioner could not be termed as landlord as defined in section 2(f) of the Sindh Rented Premises Ordinance, 1979. In our considered opinion the evidence as led by the petitioner and discussed by the learned appellate Court cannot be considered sufficient to establish title or ownership of the property in dispute. In such view of the matter it has rightly been held that the question of title/ownership be got determined prior to seeking ejectment of the respondent. In absence of relationship of landlord and tenant between the parties the question of disputed title or ownership of the property in dispute is to be determined by a competent Civil Court as such controversies do not fall within the jurisdictional domain of the learned Rent Controller. It is well-settled by now that "the issue whether relationship of landlord and tenant exists between the parties is one of jurisdiction and should be determined first, in case its answer be in negative the Court loses scission over lis and must stay his hands forthwith". PLD 1961 Lah. 601 (DB). There is no cavil to the proposition that non-establishment of relationship of landlady and tenant as envisaged by the Ordinance will not attract the provisions of the Ordinance. In this regard we are fortified by the dictum laid down in 1971 SCMR 82. We are conscious of the fact that "ownership has nothing to do with the position of landlord and payment of rent by tenant and receipt thereof by landlord is sufficient to establish relationship of landlord and tenant between the parties", 1983 CLC 2808 but as mentioned hereinabove the petitioner failed to prove that rent was ever paid to him by the respondent. It hardly needs any elaboration that the requirement of the relevant law is that the learned Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not established his position as landlord beyond reasonable doubt. The petitioner has neither produced any tenancy agreement nor any evidence in writing showing that rent was being paid to him. No counter-foil of any receipt, any letter from tenant, any notice or any other document could be produced and in our considered opinion the oral version of landlord is not sufficient to hold that relationship of landlord and tenant existed between the parties. If any reference is needed 1983 CLC 613 can be referred. It may be pointed out that House Building Finance Corporation has no authority to confer ownership/ possession of property in dispute in favour of the petitioner as pressed time and again. No legal infirmity whatsoever has been observed and, accordingly, the petition being devoid of merits is dismissed. The suit regarding determination of title/ ownership, if filed be disposed of expeditiously being uninfluenced from the observations made by the appellate forum."
10. In the present case, as stated above, it is an admitted fact that both the parties have already produced all their respective evidence before the learned Rent Controller and only arguments are to be heard therein so as the same being decided on its merits.
11. Under such circumstances and in the light of the above stated reported case viz. 2001 SCMR 1434, it would be in the interest of justice to set aside the impugned order passed by learned Rent Controller thereby directing the tenant to deposit the arrears of the rent, and instead to hear the parties and to decide the rent case itself on its own merits.
12. The petitioner is hereby admitted as well as allowed. Impugned order is set aside with the direction as recorded hereinabove. Parties are directed to appear before the learned Rent Controller on the next date of hearing and the learned Rent Controller should hear the case without fail and in case of failure of any party to appear before the Rent Controller, the case shall be heard and decided on its merits irrespective of the absence/non-appearance of any of the parties.
Karachi. Judge
Dated: 10.11.2008