2017 PLP 2012 (MLD)

ZAFAR AHMED RAJPUT, J.

This Constitutional petition is directed against the judgment dated 14-09-2012 whereby dismissing the Rent Appeal No.11/2012, the learned District Judge, Hyderabad maintained the order dated 30.01.2012 thereby the learned IIIrd learned Rent Controller, Hyderabad by allowing Rent Application No.21/2011 (Re: Muhammad Saleem v. Aftab Ahmed) filed by the respondent No.3, directed the petitioner to handover vacant possession of the demised shop to the respondents No.3, within 60 days.

2. Briefly stated facts leading to this petition are that the respondent No.3/applicant filed Rent Application No.21/2011, under section 15 of the Sindh Rented Premises Ordinance, 1979 alleging therein that he and his brothers are co-owners of six shops and five cabins, situated in Roshan Market, Resham Gali, Hyderabad. Out of which, shop No. 2 was let out to petitioner/opponent on 01-09-1995 at monthly rent of Rs. 1,000/- per month with security deposit of Rs.15,000/-, such rent agreement was executed between the parties. At present the petitioner/ opponent is paying rent of the shop at the rate of Rs.6,500/- per month. It is further stated that the petitioner/opponent is defaulter for payment of monthly rent since October, 2010. It is also stated that the respondent No.3/applicant wants to settle his son, namely, Iftikhar Ahmed in an independent business for that he has sufficient business experience and funds. Respondent No.3/applicant; therefore, filed the rent application for ejectment of the petitioner/opponent on the ground of default as well as on personal bona fide need.

3. The petitioner/opponent filed his written objections wherein denying the claim of the respondents No.3/applicant, he has claimed that he is not defaulter in the payment of monthly rent as the opponent No.3/applicant and his brothers have sold out the shop in question to him in the sum of Rs.38,00,000/-, out of which, he has already paid Rs. 15,00,000/- to the attorney of the respondent No.3/ applicant, namely, Muhammad Saeed on 30-09-2010 at the time of execution of sale agreement and he is ready to pay balance amount to respondent No.3/ applicant as per schedule of payment mentioned in the said sale agreement. He has also stated that no cause of action has accrued to respondent No.3/applicant to file rent application.

4. After recording evidence and hearing the learned counsel for the respective parties, the learned IIIrd Rent Controller, Hyderabad allowed the Rent Application, vide Order dated 30-01-2012 by deciding following points for determination in favour of respondent No.3/applicant and directed the opponent/petitioner to hand over the vacate and peaceful possession of the demised shop to respondent No.3/applicant within 60 days from the date of Order. i. Whether there exists relationship between applicant and opponent as landlord and tenant? ii. Whether the opponent has committed willful default in payment of rent of demised shop? iii. Whether the demised premises is required by the applicant for personal bona fide need? iv. What should order be?

5. Against the said order, the petitioner/opponent preferred Rent Appeal being No.11/2012 before learned District Judge. Hyderabad, which was dismissed vide Judgment dated 14-09-2012. The petitioner has challenged the concurrent findings through this petition.

6. Heard the learned counsel for the parties and perused the material available on record.

7. The learned counsel for the petitioner has contended that the impugned order and judgment passed by the learned Courts below are unreasonable as there exists no relationship of landlord and tenant between the parties and therefore, the same are against the law, justice and equity; which are adversely effecting the right of petitioner, who has already entered into sale transaction in respect of the demised shop and paid Rs. 15,00,000/- as part payment to respondent No.3. He has further contended that the learned Courts below has erred in not relying the documents filed by the petitioner and factum of pendency of suit for specific performance of contract between the parties in Civil Court.

8. Per contra, the learned counsel for the respondent No.3 supporting the impugned order and judgment passed by the Courts below has contended that the rent application was filed on 14-05-2011; notice issued on 13-05-2011 was served upon petitioner on 19-05-2011 and thereafter he filed suit for specific performance of contract on 24-08-2011 to make a ground.

9. It appears that the petitioner has not denied the fact of his occupation over the demised shop being tenant and payment of monthly rent up to September 2010. However, he has asserted that after entering in to a sale transaction on 30-09-2010 with the attorney of the respondent No.3, namely, Muhammad Saeed, no relationship of land lord and tenant exists between the respondent No.3 and him. Muhammad Saeed, who is brother and co-owner of demised shop has filed his Affidavit-in-Evidence at Ex: 9 wherein he has categorically stated that the agreement of sale, receipt and undertaking are forged documents, manipulated by the petitioner to save his skin from ejectment from the shop. In cross-examination he has again denied the execution of sale agreement and his signature on it.

10. A tenant cannot deny his relationship with landlord on the basis of sale agreement; execution thereof has been denied by the landlord. It is settled law that till the time tenant is 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 execution of sale agreement. 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, 1984 would come in to play, debarring such tenant to deny the title of his landlord. The reliance in this regard is placed on the case of Mst. Seema Begum v. Muhammad Ishaq and others reported in PLD 2009 SC 45.

11. The tenant continues to be the tenant even if he is bonafidely entered into an agreement of sale and if he has acquired any right under sale agreement that can be pressed by him even after vacating the premises once the order of ejectment passed. It is by now a settled law that the plea of agreement of sale by the tenants cannot save him from the consequences of ejectment orders. In the case of Abdul Rasheed v. Maqbool Ahmed and others reported in 2011 SCMR 320, the Honourable Supreme Court has held that:-- "It is settled law that where in a case filed of eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement where after he would be given easy access to the premises in case he prevails. In this regard reference can be made to Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst. Azeemun Nisar Begum v. Mst. Rabia Bibi (PLD 1991 SC 242), Muhammad Rafique v. Messrs Habib Bank Ltd (1994 SCMR 1012) and Mst. Bor Bibi v. Abdul Qadir (1996 SCMR 877). In so far as determination of the relationship of landlord and tenant is concerned, such enquiry by the Rent Controller is of a summary nature. Undoubtedly the premises were taken by the petitioner on rent from the respondent and according to the former he later on purchased the same which was denied by the latter. Consequently, the relationship in so far as the jurisdiction of the Rent Controller is concerned stood established because per settled law the question of title to the property could never be decided by the Rent Controller."

12. On the basis of dictum laid in aforementioned case-law, I without a second thought hold that the petitioner cannot legitimately resist maintainability of ejectment proceedings against him on the ground of Sale Agreement. Suffice it to observe that gaminess or otherwise of such agreement and its consequential effect will be independently determined by the Civil Court. However, in the instant case I am satisfied that the issue regarding relationship, default and personal bona fide requirement of respondent No.3/landlord has been correctly decided by the Courts below. There does not appear any defect or legal infirmity with regard to conclusions drawn in the impugned order and judgment. Accordingly, the petition having no merit is dismissed with no order as to costs. The petitioner is directed to vacate the demised shop within 30 days from today and in case of his default the Executing Court may issue writ of possession with police aid without further notice to the petitioner.

13. By my short order dated 24.10.2014; the instant Constitutional Petition was dismissed and above are the reasons for the said order. HBT/A-6/Sindh Petition dismissed.