2012 PLP 2469 (YLR)

SALMAN HAMID, J.

At page 239 is a Sale Agreement stated to have been executed in July, 2002 between respondent No.2 and brother of the petitioner (Sale Agreement) in respect of Bungalow No..R-107, Sunley Bungalows, Survey No.53, 55, Deh Morning, situated at Sector 34-A, KDA Scheme No.33, Karachi (Demised Premises). On the strength of this Sale Agreement, it seems that the petitioner claims himself to be an owner of the Demised Premises and did not make payment of rent and asserted that the instalments those were paid under Sale Agreement were manifestation of the fact that Demised Premises were given into the ownership of the petitioner which had been paid upto 2004 amounting to Rs.1,100,

000. As against this assertion/claim of the petitioner, respondent preferred Rent Case No.11 of 2008 (Rent Case) against the petitioner on the grounds of personal bona fide need and default in payment of monthly rent of the Demised Premises from February, 2006 up to the date of filing of Rent Case which was decided by IInd Rent Controller, Malir, Karachi (Rent Controller) in favour of the respondent, on both grounds by ordering ejectment of the petitioner from the Demised Premises in terms of Order dated 30-10-2010 (Order). Aggrieved by Order of the Rent Controller First Rent Appeal No.15 of 2010 (FRA) was filed which too was dismissed by the IInd Additional District Judge, Malir, Karachi (II-ADJ) in terms of impugned judgment dated 27-10-2011, upholding the findings of the Rent Controller on the ground of default and personal bona fide need. It was contended by the learned counsel for the petitioner that the findings of the Rent Controller and of II-ADJ on the ground of default and personal bona fide need were incorrect and a result of non-reading and misreading of evidence. It was again asserted by the learned counsel for the petitioner that the petitioner was never a tenant and occupied Demised Premises in the capacity of owner thereof and therefore, question of payment of rent to the respondent never arose and the personal bona fide need, under the circumstances, was also out of question.

2. It may be noted that mere agreement to sell does not confer title in favour of a person. It is an admitted position that as of day the petitioner at best has in his hands only agreement to sell and nothing else and therefore merely on the basis of such Agreement to sell petitioner could have not absolved himself from the responsibility of making payment of rent of the Demised Premises. Therefore, default was patent. Even otherwise according to the petitioner's own showing Suit No.69 of 2008 was filed by him against the respondents in or about February, 2008 for specific performance of the above agreement to sell dated January, 2002 which suit was dismissed for non-prosecution on 20th September, 2008. It was further contended that after dismissal of the above Suit application under Order IX, Rule 9, C.P.C. was filed which too was dismissed on the ground of limitation where after again fresh Suit No.225 of 2011 was filed which is pending adjudication before IInd Senior Civil Judge, Malir. No interim order is operating in favour of the petitioner in the fresh Suit. It may be noted that even Suit that was preferred by the petitioner prima facie was beyond the period of limitation as stipulated under Articles 113 and 120 of the Limitation Act. Be that as it may, the fact would remain that till date the petitioner has not been able to establish himself as owner of the Demised Premises and in the circumstances, he was required, under law to make payment of the rent which admittedly he has not paid since January, 2002 on the basis of Agreement to Sell and according to respondents Nos. 1 and 2 since February, 2006 but enjoying fruits of the Demised Premises.

3. Above being the position, decisions taken by the courts below require no interference and nothing was brought on record to show that the two decisions of the courts below suffer from any illegality or that such were outcome of misreading and non-reading of evidence. This petition is meritless and is hereby dismissed in limini however with no order as to costs. KMZ/T-1/K Petition dismissed.