2016 PLP 358 (MLD)

SALAHUDDIN PANHWAR, J.

Petitioner Muhammad Yaseen, through instant petition, has sought declaration that following order (s) be declared as having been passed without lawful authority:-- order dated 14.01.2010 (closing side of petitioner/opponent in R.A.No.84/2008), order dated 19.4.2010 (allowing Rent Appln.No.84/2008), order dated 16.02.2012 (dismissing application under section 12(2), filed by petitioner in Rent Ex.Appl.No.16/2010 of Rent Appln.No.84/2006), order dated 25.7.2012(whereby execution Appln.No.16/2010 was allowed) passed by the 3rd Senior Civil Judge and Rent Controller, Hyderabad; AND order dated 22.10.2012( passed by the 3rd Addl. District Judge, Hyderabad whereby P.R.A.No.43/2012, filed by present petitioner.

2. Relevant facts are that Respondents/applicants filed an application under section 15 of S.R.P. Ordinance against the petitioner/ opponent whereby seeking his ejectment from premises in question i.e. a shop bearing C.S. No.A/1360, Prince Ali Road, Hyderabad on ground of personal need. It was pleaded that premises was rented out by paternal uncle of applicants/respondents namely Umer Daraz who used to collect the rent but after his demise rent was being collected by Muhammad Tahir and Nizamuddin which continued till July, 2006 and rate was enchanccd to Rs.1000/- per month but since August, 2006 petitioner/ opponent failed to pay rent. The premises was claimed by respondents/ applicants for their personal bona fide need. The respondents/applicants sent notice to opponent/petitioner dated 06.9.2006 which was replied but premises was not vacated. The respondents/applicants, in such background, claimed the petitioner/opponent liable to be evicted hence filed the application under section 15 of Sindh Rented Premises Ordinance with following prayers:-- (a) Direct the opponent to handover the vacant, physical possession of rented premises (running under the name and style of Arif and co.) and CS No.A/1360 situated at Prince Ali Ropad, Hyderabad to the applicants/applicant No. 01 for personal bona fide use; (b) Direct the opponent to pay/tender monthly rent from August 2006 to October 2006 at the rate of Rs.1000/- per month and future rent in the same manner: c) Cost of the application be saddled upon the opponent; d) Any other relief which this Honourable Court deems fit, just and proper may also be awarded in favour of the applicant;

3. In response to notice (s), the petitioner/opponent caused his appearance and filed his written reply/objection denying ownership of respondents/applicants and existence of relationship of landlord and tenant. He, however, admitted that shop was rented out by Umer Daraz and he was paying rent to Umer Daraz and after his death Nizamuddin and Muhammad Tahir were receiving the same. Subsequently, they avoided to receive the rent upon which he sent the same through money order which, too, was refused so he started depositing the rent in office of Rent Controller vide R.A.No.71/2006. He also claimed that rent sent second time through money order was received by Nizamuddin on 05.10.2006.

4. During pendency, an application under section 16(1) of S.R.P Ordinance was made which was allowed vide order dated 21.4.2007 and petitioner started depositing the rent. The respondent/applicant No.1 filed his affidavit-in-evidence and thereafter, side was closed.

5. On the other hand petitioner/opponent filed his affidavit-in-evidence, but did not appear so his side was closed vide order dated 14.01.2010. It is, however, claimed by petitioner that vide order dated 08.4.2009 the matter was adjourned sine die but without notice to petitioner/opponent the learned Rent Controller closed his evidence side.

6. The record, however, shows that the learned Rent Controller framed the following points for determination:- (1) Whether there is relationship of landlord and tenant between the parties? (2) Whether opponent has committed willful defaulter in payment of rent from August, 2006 and onward? (3) Whether the premises in question is required by the applicant No.1 for his personal bonafide use for starting his own business? (4) What should the order be? (5) Whether the demised shops are required by the applicant for her personal bona fide use? (6) What should the order be? After conclusion of proceedings, the learned Rent Controller tried the matter and allowed the rent application of the respondents/applicants.

7. It is further pleaded in this petition that respondents/applicants filed Execution Application No.16/2010 and notice whereof was served upon petitioner/opponent. He, petitioner/opponent, appeared; filed his objections so also made an application under Order IX, Rule 13, C.P.C. also an application under section 5 of Limitation Act. The petitioner/ opponent also filed an application under section 12(2), C.P.C. against such application(s) the respondent/applicant No.3 filed objections. However, at the end of the day the application under section 12(2), C.P.C., filed by petitioner/opponent was dismissed and vide order dated 27.7.2012 the execution application was allowed.

8. The petitioner/opponent filed the F.R.A.No.43/2012 before the learned District Judge, Hyderabad which was made over to the court of learned 2nd Additional District Judge, Hyderabad who dismissed the same vide order dated 22.10.2012.

9. Learned counsel for the petitioner, inter alia, contended that since the very order of closing the evidence side of the petitioner/ opponent was illegal, void ab initio hence series of order (s), including passed in Rent appeal, are nullity in eyes of the law. He claimed to be not on notice regarding revival of rent proceedings hence claimed his absence to be justified. In support of his contentions he has placed reliance on the case laws, reported as 2011 CLC 1389 and 1997 CLC 1126.

10. Conversely, learned counsel for the respondents/applicants contended that the instant petition is not maintainable as the petitioner/ respondent did not resort to proper legal remedies at proper time hence cannot legally challenged number of legal orders through instant petition.

11. After careful consideration of the contentions raised by the counsel for the respective parties and scanning the available record, it is manifest that the present petitioner/tenant through instant petition has sought a declaration towards legality of number of orders of two different forum (s). The petitioner has claimed that after placing of rent matter 'adjourned sine die' he was not served with notice hence order of closing evidence of petitioner and all subsequent order (s) are nullity in eyes of law.

12. The perusal of the diaries shows that on 08.4.2009 matter was adjourned sine die however on 28.5.2009, on filing of an application under section 151, C.P.C., matter was again brought on regular file and date of hearing was fixed as 29.5.2009. On 29.5.2009, an application under section 16(i) of S.R.P.Or., was filed and notice was ordered to petitioner/opponent which continued upto next two dates of hearing. The diary dated 20.8.2009 shows appearance of advocates for both parties. After such date of hearing the matter, per diaries, was adjourned ten (10) times and most of occasions the 'parties advocates were present'. Such diaries are supposed to have been maintained by the Judge which, perhaps, be written by Reader hence weight is attached to the case diaries with regard to proceedings. The petitioner has not alleged any mala fide or a motive of such a consideration which could be believed to have made the 'reader or Judge' to constantly maintain an incorrect fact in diaries of ten hearings. The mistake may happen for a single date but not in diaries of ten (10) dates of hearing, therefore, such plea of the petitioner appears to be not sustainable particularly when no personal grievance against 'reader or judge' is established least alleged.

13. The record further shows that the petitioner availed all available remedies i.e. filing of an application under Order IX or XIII, C.P.C. so also an application under section 12(2), C.P.C. and even contested the execution proceedings including a plea of not occupying the property mentioned in rent proceedings as 'premises'. On failure of his all such legally available remedies he preferred Rent appeal which was also dismissed. The petitioner has not been sticking with legal objections but pressing the closing of his evidence side.

14. Albeit, it is already discussed that weight is attached to the fact, mentioned in the diaries, let's assume that petitioner would have been given an opportunity of leading his evidence. Even in that case he was not permitted legally to go beyond the plea (s), taken in his written reply/objection. The examination thereof shows that the petitioner had taken the plea that there existed no relationship of landlord and tenant and that he was not occupying the premises, so mentioned in the rent application i.e. shop No.A/1360, Prince Ali Road, Hyderabad. He, however, had admitted in his written reply/objection that:-- It is however submitted that shop No.A/1302 Prince Ali Road Hyderabad was let out by Umer Daraz son of Haji Abdul Ghani by Rent Agreement dated 5.8.1982. Opponent was paying the rent of the shop No.A/1302. The rent so paid by the opponent was being received by Late Umer Daraz, and after his death, by Nizamuddin and Muhammad Tahir. But subsequently they avoided to receive, the rent, which was sent by money order which too was refused, whereafter the opponent has started depositing the rent of shop No.A/1302 in the office of Rent Controller in R.A. No.71/2006. However, the rent sent second time by money order has been received by Nizamuddin on 05.10.2006. From above it is quite clear and evident that petitioner/opponent admits that he was tenant of shop No.A/1302 which was mistakenly mentioned in rent application as A/1360. Thus this plea was properly appreciated by the Rent Controller. The operative part whereof shall make this point rather clear. '....it is also admitted fact that the opponent has sent the rent through money order and so also deposited the rent in the court in name of applicant No.1 in R.A. No.71/2006 under section 10(3) of Sindh Rented Premises Ordinance and thereafter he is depositing rent in the name of applicant in this rent application on order under section 16(1) of SRPO, 1979, therefore, relationship of landlord and tenant exists in between applicants and opponent.

15. It is germane to state that one who receives the rent does fall within meaning of the 'landlord' and once the tenant admits paying rent to one he, subsequently, cannot take an exception thereto. I am strengthened in my such view with judgment of Honourable Supreme Court, reported as 2011 SCMR 589 wherein it is held that:-- "Admission of the tenant to receipt of notice and payment of rent through money order is sufficient to constitute relationship of landlord and tenant"

16. The learned Rent Controller did not hold the petitioner as 'defaulter' however, allowed the rent application on the ground of 'personal bona fide need'. As regard, the ground of 'personal bona fide need', the settled principle of law is that:-- Here it may also be observed that the selection of business is the sole prerogative of the landlord so also choice of rented shop, if having more than one, and therefore no restriction can be imposed upon the landlord/appellant on the pretext of restoration of his clearing and forwarding license during the pendency of rent case. For seeking eviction of a tenant from the rented shop, the only requirement of law is the proof of his bona fide need by the landlord, which stands discharged the moment he appears in the witness box and makes such statement on Oath or in the form of an affidavit-in-evidence as prescribed by law, if it remains un-shattered in cross examination and un-rebutted in the evidence adduced by the opposite party. The reliance can safely be placed on the judgment of honourable Supreme Court of Pakistan passed in the case of "Shakeel Ahmed and another v. Muhammad Tarique Farogh and others" (2010 SCMR 1925). An owner/landlord has absolute right to enjoy his/her property as per his/her wishes.

17. It is also settled principle of law that landlord has the absolute right to acquire and deal with his property in the manner best suited to him/her, and a tenant has no right to disentitle the landlord of his/her valuable right to acquire, deal and possession his/her property, which right is guaranteed by Article 23 of the Constitution (2009 YLR 1052). Since the claim of the respondent No.1/applicant for personal bona fide need has not been disproved by the petitioner/tenant hence both the Courts below committed no illegality in responding to this point as 'proved'.

18. As regard the mistake of property number i.e. A/1360 in place of A/1302 it would suffice to say that a legitimate and legal right cannot be knocked out on such technical ground as the Court enjoys power to allow such a clerical error while exercising jurisdiction under section 152, C.P.C. In this case, however, site inspection was got done by the Commissioner who reported as:-- According to sketch and measurement, taken by the City surveyor, the Shop in question/dispute is constructed on two City Survey Nos.1302 and 1360. The J.D. is in occupation in the said shop'

19. Thus, status of the premises in question also remained no more disputed. The petitioner has failed in pointing out any illegality in the order (s) of both the courts below. Accordingly, the petition is hereby dismissed. ZC/M-206/Sindh Petition dismissed.