2020 PLP 29 (CLCN)

MUHAMMAD SALEEM JESSAR, J.

By this single judgment, I propose to dispose of abovesaid four constitutional petitions as in all the petitions, factual as well as legal aspects of the cases are almost same, besides the property involved in all the cases is also one and the same.

2. By means of these four petitions, four judgments passed in F.R.As Nos. 22, 23, 24 and 25 of 2015 filed by the petitioners herein have-been assailed whereby the FRAs were dismissed and the ejectment orders dated 01.08.2015 passed by learned Rent Controller/Vth Senior Civil Judge, Hyderabad in Rent Applications Nos.323/2012 and 324/2012 against the petitioners were upheld.

3. Concisely, the facts of the case are that respondent No.1 herein, Mst. Shahida Ghazal filed ejectment applications against the petitioners Shafiq-ud-Din and Muhammad in the year 2012, on the ground of default and personal bona fide use under section 15 of Sindh Rented Premises Ordinance, 1979 in the Court of 2nd Senior Civil Judge/Rent Controller, Hyderabad, praying for eviction of the opponents from the demised shops Nos.1 and 2 respectively. It was alleged that she had purchased the property consisting of House No. B/1285/2 as well as two shops on ground floor situated at Advani Lane, Hyderabad through registered sale deed dated 15.01,2004 whereby her name was mutated in the record of rights in City Survey Office Hyderabad. According to respondent No.1 applicant, the previous owner namely, Zahooruddin had constructed two shops on the ground floor of said property which are in occupation of the two opponents/petitioners and rent agreements were executed between previous owner and opponents on 01.10.1989 and rent was fixed at the rate of Rs.1100/- per month therefore, opponents are liable to pay monthly rent at the rate of Rs.1100/- to her from the date of registration of sale deed. It was further alleged that respondent No.1 had sent legal notice to the opponents through her previous counsel on 15-03-2004 wherein it was intimated to the opponents that respondent No.1 had purchased the property consisting of House No. B/1285/2, and aforesaid two shops on ground floor, situated at Advani Lane, Hyderabad. She also asked the opponents to make payment of monthly rent since January, 2004 to March, 2004 and vacate the said shops by handing over their vacant physical possession to her on the ground that shops in question were required by her for personal bona fide use of her husband who was jobless. It was claimed that prior to this application, respondent No.1 had filed ejectment application on 13-04-2004 in the Court of 3rd Senior Civil Judge/Rent Controller, Hyderabad against the opponents in which the opponents had filed written objections admitting the tenancy therefore, the opponents are liable to pay rent to her at the rate of Rs.1100/- per month from the date of registration of sale deed. She further claimed that she filed application under section 16(1) of SRPO, 1979 which was allowed and opponents were directed to deposit monthly rent in Court from January, 2004 and an amount of Rs.40,700/- was deposited by each opponent out of which respondent No.1 withdrew amounts of monthly rent outstanding against the opponents from March, 2004 to July, 2006 total amounting to Rs.31,900/- each and remaining amount of Rs.7700/- each was lying deposited in the Court. It was further alleged by respondent No.1 that during pendency of said rent applications, the opponents created dispute regarding ownership of property in collusion with Evacuee Trust Property Department, with the result the said department filed petition under sections 8 and 10 of the Evacuee Trust Property Act before Chairman, Evacuee Trust Property Board, Lahore against her previous owner Zahooruddin and consequently, PTD of Zahooruddin was cancelled subsequent to the alienation in favour of respondent No.1. It was further alleged that due to cancellation of allotment by Chairman, Evacuee Trust Property Board, the ejectment applications earlier filed by her were withdrawn with permission to file fresh one after clearance of her title. It was also alleged that after litigation before Evacuee Authorities and Appellate Forum, her title was cleared thereafter-instant rent applications were filed by her.

4. After service of notices, opponents filed Written Reply wherein they raised legal objection against maintainability of rent applications denying relationship of landlady and tenant between the parties. They also denied the claim of the applicant/respondent No.1 in respect of default as well as her personal bona fide need. It was further stated that respondent No.1 was in possession of House No. B/1285/2 alleged to have been purchased from one Zahooruddin in a deceitful manner, therefore, Chairman Evacuee Trust Property, Lahore cancelled his allotment and the house in her possession was lawfully notified and declared as E.T.P, vide notification No. 3433 dated 25-07-2006. It was further stated that as per notice received from Assistant Admin E.T.P dated 17-03-2008, rent and arrears from 1960 till date were demanded from the opponents, which were duly paid and rent agreements were also executed in their favour. According to opponents, they used to pay the rent to E.T.P. which is landlord of the property in question and respondent No.1 has failed to clear her title. They submitted that previously respondent No.1 through her husband had filed R.A. No. 32 of 2004 in the Court of 3rd Senior Civil Judge/Rent Controller which was withdrawn on 12.04.2007 thus the present rent applications are hit by the principle of Res judicata, thus liable to be dismissed. It was further stated that opponents had filed First Class Suit No. 07 of 2012 (Haji Muhammad and Shafiquddin v. Assistant Admn. E.T.P. and others), in which respondent No.1 was a party and in which judgment and decree dated 26.05.2012 was passed but same was not challenged before the higher forum by respondent No.1. The opponents further submitted that they are paying rent since 1960 to E.T.P, but respondent No.1 has never filed any suit for cancellation of rent agreements, nor filed any suit for declaration of her title against E.T.P. Lastly, prayer was made for dismissal of ejectment applications.

5. During the pendency of rent applications, an application under Order I, Rule 10, C.P.C. was moved by Intervener Evacuee Trust Property through its Assistant Administrator @ Hyderabad. The ETPB are petitioners in C.Ps. Nos. S-87 and S-88 of 2016. The said application was allowed by learned Rent Controller vide order dated 08.10.2013 and thereafter amended title was filed thereby joining ETP as Opponent No.2. The opponent No.2/ETP also filed written objections whereby they challenged the maintainability of the rent applications. Ownership of previous owner Zahooruddin, so also respondent Mst. Shahida Ghazal was also called in question. It was further alleged that she was not competent to file. Revision petition before Federal Secretary to the Government of Pakistan, Ministry of Minorities (Minorities Division), Islamabad against the judgment of Chairman of E.T.P.B. It was further stated that the alleged sale deed executed in between Zahooruddin and respondent No.1 was only in respect of the house and not the two shops as claimed by respondent No.1 in the rent applications. The remaining submissions made by respondent No.1 in the rent applications were also denied stating that respondent No.1 was not entitled to claim rent of the shops in question from the opponents, Shafiq-ud-Din and Muhammad as such rent was being received by ETP. Lastly, they prayed for dismissal of the rent applications.

6. After formulating the points for determination, recording the evidence of the parties and hearing advocates for the parties, learned Rent Controller allowed the ejectment applications vide Orders dated 01.08.2015, which was challenged by the petitioners in aforesaid First Rent Appeals which were also dismissed by the Appellate Court vide, impugned judgments, hence these constitutional petitions.

7. Mr. Muhammad Sulleman Unar, learned counsel for the Petitioners Shafiq-ud-Din and Muhammad submitted that no doubt the Petitioners have entered into agreement with regard to tenancy of the demised premises; however, in the year 2006 the title of the landlady was cancelled by Evacuee Trust Property Board, therefore, Respondent/landlady ceased to be the landlady; hence the petitioners stopped paying rent to her. He next submitted that learned Rent Controller was not competent to decide the ejectment applications; particularly when they had raised issue with regard to title of the landlady and same was pending adjudication and unless the said issue is decided. Rent Controller should have refrained to decide the rent application moved by Respondent/landlady. He further submitted that earlier petition being C.P. D-1812/2016 filed by Petitioner Muhammad before this Court has already been decided on 26.06.2019, which was announced on 02.07.2019 and the petitioners have challenged the same before honourable Supreme Court of Pakistan through CPLA No 450-K of 2019. In support of his contention, he placed copy of memo of said CPLA, which is taken on record. He further submitted that unless the issue of title is decided, learned Rent controller as well as appellate Court is not competent to decide the application of the landlady. In support of his contentions, he placed reliance upon the cases of Zawar Hussain v. Mst. Shamsunnisa and another (1992 CLC 2293) and Yousif v. Fatah Muhammad and others (1994 CLC 114) and prayed that instant petitions may be allowed by setting aside the impugned orders/judgments, passed by Courts below. 8. -Mr. Atta Hussain Gaddi Pathan, learned counsel for Petitioners, in C.Ps. Nos.S-87 and S-88 of 2016 and for Respondent No.2 in C.Ps. Nos. S-23 and S-24 of 2016 viz. Evacuee Trust Property Board (ETPB) adopted the arguments advanced by Mr. Unar.

9. On the other hand, Mr. Babar Bohio, advocate for Respondent No.1/landlady, Mst. Shahida Ghazal, in all four petitions submitted that relationship of landlady and tenant between the parties has not been denied at all by petitioners Shafiq-ud-Din and Muhammad. As far as question of title is concerned the petitioners being tenants have no right to. challenge the title of the landlady. He next submitted that there is no illegality or infirmity in the impugned orders passed by the Courts below, therefore, petitions merit no consideration and prayed for dismissal of the petitions. In support of his contentions, he placed reliance on the cases of Muhammad Saleem v. Messrs Symphony (Pvt.) Ltd. through Salim Motiwala and 2 others (2007 YLR 420), Najma Sultana through Attorney v. Anjuman Jamiat-ur-Akhwan through Attorney and 4 others (2017 YLR 164), Muhammad Anis v. Muhammad Yahya Sultan and others (2011 SCMR 589), Fayazuddin through Legal Heirs v. Liaquat Ali through Legal Heirs and 2 others (2018 CLC Note 101), Saifuddin and another v. Senior Civil Judge/Rent Controller-VIII, Karachi (South) and 7 others (2007 SCMR 128) and Zahida Khan v. Mrs. Gulnaz Qureshi through Attorney and another (PLD 2011 Karachi 6).

10. In rebuttal, Mr. Unar focused upon point No.3 decided by the Rent Controller (page-133 of C.P. No. S-No.23 of 2016) and submitted that it is the reply to arguments advanced by counsel for landlady. Moreover, Petitioners have rightly invoked jurisdiction of this Court.

11. Again in rebuttal, Mr. Bohio referred last para of the Rent Application No. 324/2012 (page-137 of C.P. No. S-23/2016) and referred the evidence of opponent No. 2 dated 02.02.2015 and submitted that no case for interference is made out. He prayed for dismissal of the petitions.

12. It appears that the main stress of the learned counsel for the petitioners is upon the issue of relationship of landlady and tenants between the petitioners and respondent No.1. According to him, consequent upon cancellation of title of previous owner Zahooruddin by Evacuee Trust Property Board in the Year 2006, from whom respondent No.1 claims to have purchased the property in question, she ceased to be the landlady/owner of the property in question, therefore the petitioners were not liable to pay the rents of the shops in their possession to respondent No.1. It may be specifically pointed out that the petitioners Shafiq-ud-Din and Muhammad have not denied their status to be the tenants in the shops in question and they have also admitted that previously they had been paying rent to the Previous owner namely Zahooruddin. In fact, the stand taken by them in their pleadings, so also in the arguments advanced by their counsel, is that consequent upon cancellation of title of the previous owner of property in question namely, Zahooruddin by ETPB in 2006, he seized to be the owner of the property in question and consequently respondent No.1, Mst. Shahida Ghazal who claims to have purchased the property from the said Zahooruddin, also does not have any title in the property in question and, therefore, there is no relationship of landlady and tenants between the parties.

13. In order to decide this point, it seems to be appropriate to mention here the background of the case concerning the title/ownership of the property in question. In fact, the property in question i.e. house bearing C.S. No. B/1285, Ward "B", Advani Lane, Hyderabad was originally transferred to one Zahooruddin son of Nooruddin from the Settlement and Rehabilitation Department, Hyderabad on the basis of his C.S. Form No. HDR-I-3664 dated 12-10-1959, P.T.O. No. DSC-I-A/402 dated 27-12-1959. After making full payment of the transfer price upon verified claim of the said Zahooruddin, P.T.D. No. 9530 dated 15-01-1964 was issued in his favour. Thereafter, Zahooruddin being a tenant of Evacuee Trust Property Board, Hyderabad in respect of property viz. house No.B-1285/2 situated in Advani Lane, Hyderabad as per record of Evacuee Trust Property Board, he was, issued a demand notice for depositing rent for 51 months which was challenged by him before Deputy Settlement Commissioner Judicial, Hyderabad who vide order dated 21.6.1965 held that he was the owner of the property in question until the status of the property is determined otherwise by the competent court. Thereafter, he moved a reference before the Chairman ETPB in the year 1987. However, vide order dated 05.5.2006 the Chairman ETPB cancelled the alleged PTD and possession was restored to the department. However, prior to cancellation of PTD Respondent No.8, Zahooruddin had sold out property. in question to respondent No.2, Mst. Shahida Ghazal through Registered Sale Deed No.126 dated 15-01-2004 and her name had also been mutated in the record of rights in the City Survey Department, Hyderabad vide C.S. Extract No.299 dated 22-01-2004. However, she received a notice dated 22.12.2005 issued by the Administrator Evacuee Trust Property, Hyderabad informing her that the matter is fixed on 30-12-2005 before Chairman ETPB for deciding the status of the said property and cancellation of P.T.D. In the circumstances, she filed her written reply -dated 09-01-2006 along with relevant documents. However, Chairman ETPB vide his order dated 05.5.2006 decided the matter in favour of the department and cancelled the P.T.D. issued in favour of Zahooruddin, so also subsequent alienations of the said property in favour of respondent No.1, Mst. Shahida Ghazal. She preferred Revision Application against the aforesaid order before the Federal Secretary, Ministry of Minorities Affairs, Government of Pakistan, Islamabad. The Federal Secretary, after hearing the parties, remanded the matter to the Chairman, ETPB for determination of the status of the property, who after hearing the parties vide his order dated 03.02.2007 declared that property bearing No. C.S. No.8/1285 is the evacuee trust property and cancelled the P.T.D. Respondent No.1, Mst. Shahida Ghazal, again preferred revision.. application before the Federal Secretary. After hearing the parties, Additional Secretary Incharge vide his order dated 11.07.2009 allowed the revision application and held that the case was fit for validation under section 10 of the Act, 1975.. Accordingly P.T.D. was validated and the order passed by the Chairman was modified to such extent. Thereafter, Petitioner Muhammad in C.P. No.S-24 of 2016, challenged the said revisional order as well as order dated 21.07,2006 whereby revision petition was admitted and status quo was ordered to be maintained, by filing C.P. D-1812 of 2012. The said petition was heard by a Division Bench of this Court comprising; myself and my learned brother, Khadim Hussain Tunio, J., and was dismissed by judgment dated 26.06.2019, copy whereof is also available on the files of instant petitions. It would be advantageous to reproduce relevant portions from the said judgment as the same have direct effect on the issue of the relationship of landlady and tenants between the parties involved in these petitions. "It is noteworthy that all such proceedings were between EPTB and Zabooruddin in whose favour PTD was issued and his successor in interest viz. respondent No.9, Mst. Shahida Ghazal and at no point of time the petitioners were parties in such proceedings. Even they did not move any application for impleading them as a party in such proceedings therefore it can safely be held that they were totally strangers to the said proceedings. It is a matter of record that revisional order passed in favour of respondent No. 9 has not been challenged by EPTB at any stage, thus the same attained finality. So far as present petitioners are concerned, as stated above, they were totally strangers to those proceedings which gave rise to the filing of instant constitutional petition as such they have no locus standi to file the petition challenging the revisional order passed in favour of respondent No.9 and against EPTB. It is a well settled principle of law that a stranger to the proceedings cannot be termed as an 'aggrieved person' and he has no locus standi to challenge the order passed in such proceedings." "Even otherwise, without prejudice to the incompetency of the petitioners to file instant petition, as, stated above, the petition also suffers from laches, inasmuch as; impugned orders were passed on 22.7.2006 and 11.07.2009 respectively whereas the petition was filed on 28.7.2016, as such there is delay of about ten years in respect of order dated 21.7.2006 and the delay of about seven years in respect of order dated 11.7.2009 for which no plausible explanation has been offered. Following the dictum laid down in the aforesaid decisions of the Superior Courts and keeping in view the conduct of the petitioners, it can safely be held that instant constitutional petition also suffers from laches and is liable to be dismissed on this score also." "Even otherwise, as stated above, the department kept mum for 29 years to challenge the Transfer Order/PTD issued in favour of Zahooruddin which disentitles it to seek cancellation of PTD, besides the department also did not challenge the revisional order, thus the same attained finality." "In view of above legal and factual position, we are of the considered view that instant petition is not maintainable. Accordingly, C.P. No. D-1812 of 2016 is hereby dismissed being not maintainable and also having no merits."

14. Needless to emphasize that consequent upon grant of Revision Application of respondent No.1, Mst. Shahida Ghazala, by Additional Secretary Incharge vide his order dated 11.07.2009 thereby holding that the case was fit for validation under section 10 of the Act, 1975 and accordingly validating the P.T.D., title of Zahooruddin being owner of the property in question was restored and ultimately respondent No.1, Mst. Shahida Ghazal, having purchased the property from Zahooruddin also became lawful owner of the property in question. It is also noteworthy that the rent applications in the instant case were filed by respondent No. 1 against the petitioners/tenants in year 2012 i.e. after passing of the order by Additional Secretary. In charge in Revision Application, as such at the time of filing of the rent applications she was equipped with the said order, thus was a lawful owner of the property in question because the said order was not challenged either by the private petitioners or by ETPB and it is only in the year 2015 i.e. after a period of about six years that the said revisional order was challenged before this Court by petitioner Muhammad by means of filing C.P. No. D-1812/2016 which has also been dismissed by a Division Bench of this Court as stated above. In this view of the matter, it can safely be held that there did and does exist relationship of landlady and tenants between respondent No.1, Mst. Shahida Ghazal and the petitioners Shafiq-ud-din and Muhammad.

15. Now adverting to the issue of default, it seems that learned Rent Controller has properly dealt with the said issue and has given sound reasons for his findings. Similarly, the appellate Court has also rightly upheld such findings. It would be advantageous to reproduce hereunder the relevant portion from the order of the Rent Controller on this issue: "The opponent No.1 has denied default on the ground that landlady is not owner of the disputed shop though in written objections, at the same time has admitted the appellant to be in possession of the house No.B/1285/2 purchased from said Zahooruddin claiming it to be in deceipt in full (sic) owner, but further stated that opponent No. 1 used to pay the rent to the opponent No. 2 on the ground that applicant failed to clear her ownership, however, the opponent No.1 in his written objections has admitted the filing of their ejectment application of the applicant in the year, 2004 and withdrawal thereof. R&Ps of R.A. No.57 of 2004 shows that opponent No.1 himself admitted her as his landlady in para-4 of his application under section 10(3) of S.R.P.O., 1979 filed before the Court of IIIrd Senior Civil Judge/Rent Controller, Hyderabad and vide order dated 29.05.2004 he was required to deposit monthly rent of Rs.1100 per month in accordance with his pleading. However, instead of compliance with such order, the opponent No.1 has been depositing Rs.450/- with the Nazir of this Court since 2013 as per report of Nazir. The opponent No.1 has not brought on record any evidence about compliance of such order of Court his tender of rent to the tune of Rs.1100/- to the present applicant by any means. It is not forth coming from record and evidence as to how he had been depositing rent of Rs.450/- under such L.P. number On the other hand, it is claim of the applicant that opponent No.1 has failed to pay her rent since April, 2007 per para-7 of affidavit in evidence of the applicant. The opponent No.1 ought to have been depositing Rs.1100/- per month as ordered by the Court and admitted by him to be monthly rent, therefore, tender of Rs.450/- paid by him in Court vide rent application No.21 of 2011 cannot be termed as due discharge of liability of paying admitted the rent of Rs.1100/- per month and thus can not absolve her of his responsibility. Consequently, the default on the part of opponent No.1 stands established. However, the opponent No.1 may proceed to recover the rent of opponent No.2 through appropriate proceedings but those payments also can not rescue him of default. So also the applicant shall be at liberty to file suit for difference of arrear of rent per law from the opponent No.2 and may withdraw rent so paid in Court."

16. I am in full agreement with the above findings. I have also gone through the contents of First Appeals and that of instant constitutional petitions and find the petitioners have laid their stress only on the point that there is no relationship of landlady and tenants between the parties and have not touched the point of default in payment of rent at all. Even the perusal of Grounds of instant petition would reveal that those are verbatim copy of the Grounds taken in the First Rent Appeals.

17. Needless to emphasize, that jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is extra-ordinary in nature which is aimed at proper dispensation of justice and to avoid abuse of the process of law. Constitutional jurisdiction is a discretionary jurisdiction which is meant to foster justice and to remedy the wrong. More particularly, concurrent findings of the two courts below in rent proceedings cannot be interfered with by this Court in exercise of its constitutional jurisdiction. In the case of Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan Karachi and 2 others reported in PLD 2005 Karachi 554, while discussing the scope of the Constitutional Petition in respect of rent matters it was held that the jurisdiction of this court under Article 199 of the Constitution is extra-ordinary in nature which is aimed at proper dispensation of justice and to avoid abuse of the process of law. Therefore, normally such jurisdiction is not, to be exercised by the High Court to interfere with the discretionary orders of the subordinate Courts, where jurisdiction has been conferred upon it by some special statutes.

18. In the case of Hafiz Shafatullah v. Mst. Shamim Jahan and another (PLD 2004 Karachi 502), it was observed that it has been held that by conferring only one right of appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 the legislature in its wisdom seemed to have tried to shorten the span of litigation in rent cases and in such circumstances interference by this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution in judicial Order passed by the Tribunal of competent jurisdiction, merely on the ground that another view of the matter was also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of statute.

19. The upshot of above discussion is that in view of above legal and factual position. I am of the considered view that instant petitions being devoid of merits are liable to be dismissed. Accordingly, the petitions are hereby dismissed along with all pending Misc. Application with no orders as to costs. Office is directed to place copy of judgment in all connected files petitions. ZC/S-14/Sindh Petitions dismisse