2007 PLP 128 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

These connected petitions involving common question of law and facts, are proposed to be disposed of through this single judgment. Leave to appeal has been sought in these petitions under Article 185(3) of the Constitution against the judgment, dated 26-4-2004 passed by a learned Judge in Chamber of High Court of Sindh at Karachi in constitution petitions arising out of ejectment petitions filed by the private respondents against the petitioners under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called the Ordinance).

2. The petitioners in the above petitions, are in possession of the Flats, bearing Nos.3/2, 3rd Floor and 4/2 4th Floor, Kamal Manzil Opposite KMC Building, M.A. Jinnah Road, Karachi as tenants and respondents Nos.3 to 8, hereinafter called the landlords, seeking their eviction from the premises in their possession, filed separate ejectment petitions against them in the Court of Rent Controller, Karachi South, on the ground of default in payment of rent. The petitioners denied the relationship of landlord and tenant with the assertion that the premises in question were actually owned by one Arshad Hidayatullah and they in pursuance of the notice under section 18 of the Ordinance sent to them, have deposited rent in his name as per requirement of law. The ejectment petitions were allowed by the Rent Controller and the orders of the eviction of petitioners were further upheld by the learned Additional District Judge (South) Karachi in separate appeals filed by the petitioners vide judgment dated 20-12-2003. On dismissal of the writ petitions filed by the petitioners in the High Court against their eviction, they have preferred the present petitions.

3. Learned counsel for the petitioners, without acknowledging the existence of relationship of landlord and tenant between the parties admitted that initially the petitioners were inducted in the premises as tenants by the respondents later on their refusal to receive the rent, the petitioners tendered the rent through money orders but in the meanwhile on receipt of notice under section 18 of the Ordinance, sent by the real owner they deposited the rent in his name. The learned counsel agued that in the given situation, the non-payment of rent to the respondents would not be considered default in terms of section 15 of the Ordinance as without establishing the title, the respondents would not be entitled to receive the rent and consequently the order of the eviction of petitioners was passed without lawful authority. In nutshell, the contention of the learned counsel was that in consequence to the cancellation of the allotment of the property in the name of predecessor-in-interest of respondents by the Board of Revenue, Government of Sindh, they ceased to be the owner of the premises and having lost the status of landlord, would have no locus standi to maintain the ejectment petition. In the alternate, he asserted that the petitioners being under bona fide impression that respondents were no more landlords of the premises, deposited rent in the name of Arshad Hidayatullah and thus, in law they would not be treated as wilful defaulter to entail the penalty of ejectment.

4. The petitioners having admitted their induction in the premises in their possession as tenant by the respondent, have accepted the existence of relationship of landlord and tenant between them and the respondents, therefore, notwithstanding any defect in the title of the respondents, they would be estopped to deny the relationship of landlord and tenant at a subsequent stage on the ground that a third person having setup his title in the property, has sent them a notice under section 18 of the Ordinance. The ownership of the property is not an essential condition to create relationship of landlord and tenant rather a person without being owner of the property may acquire the status of landlord of the property, therefore, the defect in the title of landlord may not be as such a valid ground to deny his status as landlord of the property and thus, non-payment of rent for such reason may constitute a wilful default in terms of section 15 of the Ordinance which provides that if the tenancy between the parties is based on a written agreement, the tenant must pay rent of the premises in his possession within 15 days after expiry of period of payment of rent fixed in the agreement and in absence of any written agreement within 60 days after rent becomes due failing which tenant must face the consequence of ejectment. The petitioners by their conduct of denying the status of respondents as landlords of the premises on the pretext of defect in their title subsequent to their induction in the premises as tenant by the respondents, have disentitled themselves from seeking equitable relief in the ejectment petition. This may be seen that the petitioners having taken contradictory pleas at various stages in the proceedings have not only committed default in payment of rent but also disowned the respondents as landlord of the premises in their possession, knowingly that the order by virtue of which the allotment in the name of predecessor-in-interest of the respondents, was cancelled by the Board of Revenue, was under challenge before the High Court. The dispute regarding the title of the respondents being sub judice in the High Court, the petitioner who were initially inducted in the premises as tenant by the respondents neither were justified in asking them to establish their title to maintain their status as landlord of the property nor could deny the existence of relationship of landlord and tenant. This Court has repeatedly held that in such an eventuality, the tenant must face the penal consequence of ejectment and reference may be made to Muhammad Yousuf v. Asghar Hussain 1980 SCMR 886; Amanullh Khan v. Chotay Khan 1978 SCMR 14 and Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCMR

443. The learned counsel for the petitioners has not been able to point out any misreading or non-reading of evidence or any legal infirmity in the concurrent findings of the three Courts on a question of fact relating to the default in the payment of rent by the petitioners or regarding the existence of relationship of landlord and tenant between the parties.

5. In the light of foregoing discussion, we do not find any substance in this petition and the same is accordingly dismissed with costs. Leave refused. S.M.B./S-66/SC????????????????????????????????????????????????????????????????????????????????? Petition dismissed.