2013 PLP 854 (YLR)

HABIB-UR-RAHMAN SHAIKH, J.

Through this Const. Petition, petitioners have challenged orders dated 11-2-2010 and dated 13-11-2010, passed by IIIrd Rent Controller, Karachi (Central) and judgment dated 14-10-2011, passed by IVth Addl. District Judge, Karachi (Central), hereinafter referred to as the "impugned orders" and "impugned judgment").

2. Briefly facts of the case are that petitioner No.2 earlier filed Const. Petition bearing No.D-1834 of 2008 in this Court on 11-9-2008 against respondent No.3 and others with the prayer to restrain respondents from taking over possession of House bearing No.II-H/21, measuring 216 square yards, situated in Nazimabad, Karachi, (hereinafter referred to as the "premises in question") from the petitioners. On 12-9-2008 when the matter was taken up in Court and while issuing notice to the respondents it was ordered that status quo be maintained by the parties subject to deposit of a sum of Rs.100,000 by the petitioner No.2 with the Nazir of this Court. In compliance of the said order, petitioner No.2 deposited the said sum with the Nazir of this Court. Thereafter, respondent No.3 appeared in the matter and filed his reply/objections denying all averments made in the said petition. On 25-2-2009 when again the matter was taken up in Court learned counsel for respondents as well as learned Addl. Advocate-General Sindh put their appearance and stated that "no action shall be taken against the petitioner against the provisions of law, which may be needed to be taken against him, shall be strictly in accordance with law". As such the petition was disposed of on the statements respectively made by learned counsel for the respondents.

3. Later on, respondent No.3 filed Rent Case No.47 of 2009 in the Court of IIIrd Sr. Civil Judge and Rent Controller, Karachi (Central) against the petitioners under section 15(2)(II)(III)(A)(C), 15(2)(VI) of Sindh Rented Premises Ordinance, 1979 (hereinafter called as "Ordinance, 1979") with the following prayers:-- (i) Direct the opponents to clear/pay the due arrears of rent from the month of _________________ to uptil now, in respect of the rented in 10 sq.yd portion, situated at House No.21, admeasuring 224, Row No.3, Block-3 (3-H-3/21), Sub-Block-H, Nazimabad, Karachi, to the applicant. (ii) To direct the opponents to pay the monthly rent of 100 sq. yards portion under reference regularly till the handing over the possession of the said rent aforementioned property premises to the applicant. (iii) Direct the opponents or any persons behalf of the opponent who is in possession of the said rented portion premises to hand over peaceful and vacant possession of the said rented House No.21, admeasuring 224, Row No.3, Block-3 (3-H-3/21) Sub-Block-H, Nazimabad, Karachi, to the applicant. (iv) Any other order/relief which this honourable Court deem fit and proper under the above circumstances may also be granted/passed.

4. It is averred by respondent No.3 in the aforesaid application that the petitioners were living in one portion admeasuring 100 square yards, consisting of one kitchen, one washroom with WC, three rooms, in the premises in question as sub-lettee whereas the remaining portions were in occupation of respondent No.3. According to respondent No.3, he informed the petitioners orally and in writing after taking peaceful possession of the premises in question as it was mandatory requirement under Ordinance, 1979 but the respondent No.3 did not receive any reply from the petitioners. The petitioners continuously avoided to pay arrears of rent since June, 2009 at the rate of Rs.575 per month. It was further averred that the petitioners sub-letted the premises in question without prior permission of respondent No.3. The petitioners were also wilfully defaulters as the payments of arrears of rent have not been made from the year 1978 till filing of the said application, hence ejectment application was filed by respondent No.3 with the afore-quoted prayers against the petitioners.

5. The petitioners in response to the rent case filed their written statement vehemently rebutting averments of respondent No.3 and submitted that the premises in question was let-out to one Mst. Sitara Jabeen, the elder sister of petitioner No.2 by Muhammad Ilyas, the owner of the premises in question and after acquisition of premises in dispute the family of Mst. Sitara Jabeen comprising of father, mother, brothers and sisters, including petitioners inducted therein. They were regularly paying rent to the said Muhammad Ilyas. They paid rent upto the year 1984 to Muhammad Ilyas but thereafter he did not appear to collect rent, however, possession of the premises in question was with the petitioners and were living in it. In the meanwhile father and mother petitioner No.2 died and Mst. Sitara Jabeen also left the premises in question. It is also alleged in the written statement that initially the premises in question was taken on rent by the father of petitioner No.2 but rent agreement was executed in favour of Mst. Sitara Jabeen and after her departure petitioner No.2 is occupying the premises in question being tenant of Muhammad Ilyas and it was presumed that Muhammad Ilyas expired and none of his legal heirs/ relatives came forward to demand/collect rent. However, on 10-5-2007, petitioners received a notice from Naib Nazim of the area concerned, sent on behalf of Shakeelur Rehman, which was replied by petitioners. Subsequently, on 1-9-2008, another notice was given and the petitioners were directed to vacate the premises in question. The petitioners apprehending their eviction filed the above referred Const. Petition in this Court, which was disposed of in the referred terms.

6. During pendency of the rent case in the trial Court, on an application under section 151, C.P.C., title documents of the premises in question were sent for verification purposes and the concerned departments reported that the Conveyance Deed dated 9-6-2008, produced by respondent No.3 in the rent case, was genuine, as such plea raised by respondent No.3 in such proceedings that he had purchased the premises in question on 9-6-2008 was considered as true and correct. Accordingly, the said application was allowed by directing the petitioners to deposit arrears of rent within thirty days and deposit future rent on or before 13th of each English Calendar month.

7. The petitioners failed to comply with the said order and respondent No.3 having no other recourse filed application under section 16(2) of Ordinance, 1979 in the trial Court for striking off defence of the petitioners and delivery of vacant peaceful physical possession of the premises in question to respondent No.3. After hearing both the parties' counsel at length, learned trial Court allowed the application vide order dated 13-11-2010 and struck off defence of petitioners with direction to hand-over vacant physical possession of the premises in question to respondent No.3 within thirty days.

8. Being aggrieved with the order dated 13-11-2010, passed by learned trial Court, petitioners filed First Rent Appeal No.236 of 2010 in the Court of learned IVth Addl. District Judge, Karachi (Central). The learned appellate Court after hearing both the parties' counsel at length was pleased to dismiss the appeal with the observation that the order dated 11-2-2010 and order dated 11-11-2010 do not require any interference and directed the petitioners to vacate the premises in question and deliver vacant peaceful possession of the premises in question to respondent No.3, hence the instant petition.

9. Learned counsel for petitioners contended that the petitioners were regularly delivering rent in respect of premises in question to Muhammad Ilyas, the original owner and paid the same upto 2-9-1984 but thereafter none came forward to receive the same and it was presumed by the petitioners that Muhammad Ilyas expired issueless. He has further contended that the plea taken by respondent No.3 that one Muhammad Sabir was the son of deceased Muhammad Ilyas is doubtful as the deceased Muhammad Ilyas never divulged to the petitioners that he has any issue. That the alleged mutation was effected in the name of Muhammad Sabir without first obtaining Letter of Administration from competent Court. That the relinquishment deed and mutation effected in favour of Muhammad Sabir are fabricated and forged and he had never approached to the petitioners for claiming rent of the premises in question. He further contended that Muhammad Sabir was aware that the premises in question, therefore, he created fraudulent facts and got executed conveyance deed in his favour, even mutation also did not effect in his favour. He has further contended that the plea taken by respondent No.3 that he was in possession of the premises in question was baseless as he never enjoyed possession of the same. Lastly, he has contended that the findings of both the Courts below are based on misreading and non-reading of law and facts and mechanically dismissed the appeal of the petitioners.

10. To support his contentions, learned counsel for petitioners has relied upon the following case-law:-- (i) TARIQ ALI SHEIKH v. KHALID NAWAZ (1998 CLC 460); (ii) DAD MUHAMMAD v. MUHAMMAD HAYAT (1996 CLC 1705); (iii) MUHAMMAD SIDDIQ v. KHURRAM GULRAIZ (1998 MLD 624); (iv) MOBIN FATIMA v. MUHAMMAD YAMIN (PLD 2006 SC 214) and (v) MUHAMMAD SIDDIQUE v. FAZAL HUSSAIN QURESHI (PLD 1996 Lahore 252)

11. Adversely, learned counsel for respondent No.3 argued that the petition in hand is not maintainable as both the Courts have rightly passed the impugned orders and impugned judgment and there was no error in reading of the material placed before both the Courts below at the time of deciding the case on merit. He further argued that the original owner Muhammad Ilyas died on 18-9-1984 and left behind his widow namely Mst. Shahjahan and son namely Muhammad Sabir. After the death of deceased Muhammad Ilyas, his widow Mst. Shahjahan released her share in the premises in question in favour of her son Muhammad Sabir through a registered Deed of Relinquishment dated 26-12-1987, as such Muhammad Sabir, become the absolute owner of the premises in question and necessary mutation was also effected in his favour. Subsequently, on 25-4-2005 the said Muhammad Sabir sold-out the premises in question to one Sohail Zaman Khan by a registered Sale Deed, who, on 26-5-2005 sold the premises in question to one Matloob Ahmed son of Syed Maqbool Ahmed Chishti by virtue of registered Conveyance Deed and mutation in favour of Matloob Ahmed was also effected in the record of rights. In the year 2008, the said Matloob Ahmed, sold the premises in question through a registered Conveyance Deed dated 9-6-2008 to Rao Abdul Saeed son of Ch. Abdul Rasheed, respondent No.3 in these proceedings. He has further argued that respondent No.3 time and again approached the petitioners for demanding rent but the petitioners kept respondent No.3 on false promises and neither paid rent to respondent No.3 nor deposited the same in any Court having jurisdiction, therefore, become legally defaulters as well as illegal occupants of the premises in question. Learned counsel has further argued that respondent No.3 tried to amicably settle the matter with the petitioners through Reconciliatory Committee of Area (UC-11, Abbasi Shaheed, Liaquatabad Town, Karachi) but his attempts were failed. In support of his submissions, learned counsel for respondent No.3 has cited the cases of BASHIR AHMED v. ROOTS SCHOOL NETWORK (2011 SCMR 290), ARSHAD KAMAL KHAN v. SAEEDA KHALID KAMAL KHAN (1993 SCMR 1360) and FAIZANUL HAQ v. MUHAMMAD NADIM (1999 CLC 1233).

12. Heard learned counsel for petitioners as well as learned counsel for respondent No.3 and have carefully examined the material available on record with their assistance.

13. The respondent No.3 is owner of the premises in question and he purchased the same vide registered Sale-Deed dated 9-6-2008, whereafter he, through concerned Union Council, sent a notice dated 29-8-2008 to the petitioners for vacation of the premises in question, however, petitioners had filed Constitutional Petition No.D-1834 of 2008 before this Court in which status quo order was passed subject to deposit of security amount of Rs.100,000 with the Nazir of this Court. Thereafter, respondent No.3 filed ejectment application, which was strenuously contested by the petitioners and they filed their written statement/objections alleging therein that respondent No.3 was not owner of the premises in question and on fraudulent and forged sale-deed respondent No.3 claims himself to be the owner of premises in question. The record further reveals that the trial Court forwarded the registered Sale Deed, executed in favour of respondent No.3, for verification purposes through concerned department and it appears from the report of the department concerned that the said Sale-Deed was found to be genuine one as such learned trial Court passed the order on application under section 16(2) of Ordinance, 1979 with direction to hand over vacant peaceful physical possession of the premises in question to respondent No.3 within thirty days as the petitioners have not complied with the earlier order passed by the trial Court on application under section 16(1) of Ordinance, 1979, in which the learned trial Court directed the petitioners to deposit the total amount of Rs.11,500 for the period from January, 2008 to January, 2010, at the monthly rate of Rs.575 within thirty days. It is further revealed from the record that even though the petitioners have denied their relationship with respondent No.3 of tenants and landlord but they also deposited the amount of rent in the trial Court and during arguments also learned counsel for petitioners on query replied that when an order has been passed by the trial Court to deposit the amount of rent at the rate of Rs.575 per month the petitioners have deposited the amount of rents for two months, which reveals from the receipts that the petitioners deposited the amount of rents for two months twice. As per learned counsel's contention that the petitioners have already deposited the amount of Rs.100,000 in compliance of order of this Court passed in Constitutional Petition No.1834 of 2008 and the trial Court could adjust the same from the same amount instead of striking off defence of the petitioners means he was not in a position to deny about relationship of tenants and landlord between the parties before this Court or before the trial Court. Simply stating that he is denying relationship of tenants and landlord without any concrete proof is not sufficient even though the trial Court on the denial of the petitioners verified the registered Sale Deed, executed in favour of respondent No.3, as stated above. Then the impugned order has been passed by the trial Court by striking off petitioners defence. This Court has no power to decide the factual controversy in the writ jurisdiction but only have powers to decide the legal point that what was the illegality, misreading and non-reading of the evidence has been committed by the trial Court or appellate Court in their order or judgment.

14. It would be advantageous to reproduce the relevant portion of the case of BASHIR AHMED (supra) wherein the Hon'ble Supreme Court made the following observation:-- " Additionally, even if we were to form a different opinion on the subject, it would not be appropriate for us, while exercising jurisdiction under Article 185(3) of the Constitution, to reappraise the circumstances of the case and to substitute our own opinion in place of the well considered views expressed respectively by the learned Rent Controller and the appellate Court. For the same reasons, we find that the order passed by the learned Rent Controller under section 16(2) of the SRPO and affirmed by the learned appellate Court was neither fanciful nor arbitrary. ..

9. We do not need to cite any precedent in support of the well-settled legal proposition that while exercising Constitutional jurisdic-tion under Article 199, the High Court will not make factual determinations or interfere in orders passed by competent Courts vested with statutory powers in the exercise of their functions, unless there is a jurisdictional error or other legal infirmity such as arbitrariness etc. in the orders assailed before the High Court. For this reason, we find that the learned Constitutional Bench in the High Court did not have a valid justification for setting aside the orders of the learned Rent Controller and the appellate Court, respectively."

15. In the case of FAIZANUL HAQ (ibid) my learned brother Dr. Ghous Muhammad, J., as he then was, held as under:-- ".....Ss. 15(2)(ii) & 16(1)(2)

Default in payment of rent

Non-copliance of tentative rent order

Striking off defence of tenant

Rent Controller passed tentative rent order whereby tenant was ordered to deposit arrears of rent upto specified date and to deposit monthly rent, but tenant had failed to comply with said order

Effect--Relationship of landlord and tenant between parties having been established, defence of tenant was rightly struck off and ejectment of tenant was rightly ordered for non-compliance of tentative rent order."

16. The learned counsel appearing on behalf of petitioners has failed to pinpoint any illegality, infirmity, misreading and/or non-reading in the impugned orders and impugned judgment of both the Courts below. The case-law cited by learned counsel for petitioners are distinguishable from the facts and circumstances of the present case.

17. In view of the above facts and circumstances, I am of the humble view that the petitioners have failed to make out their case for interference of the concurrent findings of both the Courts below. Consequently, the petition is dismissed along with pending applications with direction to the petitioners to deliver vacant peaceful possession of the premises in question to respondent No.3, as earlier directed by both the Courts below. SAK/Z-20/K Petition dismissed.