2019 PLP 9 (CLCN)

ZULFIQAR AHMAD KHAN, J.

This Constitutional Petition is filed against the judgment dated, 29.04.2017, passed by the District Judge, Hyderabad, where F.R.A. No.26/2016, filed against the order dated 30.03.2016, rendered in Rent Application No.53/2014, filed by the respondent No.1 against the petitioners under section 15 of the Sindh Rented Premises Ordinance, 1979, was allowed and the aforementioned order passed by the Rent Controller was set aside.

2. Facts as narrated are that, the respondent No.1 filed ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979 stating therein that he is exclusive, lawful owner of demised shop bearing No.2 on ground floor Al-Fayyaz Plaza, bearing C.S. No.2219/3/2, Ward "D", area 11- 01 Sq. Yards commonly known as Rim Jhim Chappal Store, situated in Resham Bazar, Hyderabad on the basis of registered sale deed dated 10.03.2011 and such entry dated 21.03.2014 was kept in record of rights in the office of Mukhtiarkar City Hyderabad. The respondent No.1 after his purchase approached and requested the petitioner to pay rent of Rs. 30,000/- per month and to executed rent agreement, who kept him on hopes to pay the same. The respondent also learnt that the petitioner has sublet two front portions of the rented shop to petitioners Nos.2 and 3 without his consent and permission by receiving Rs. 4.00.000 (four hundred thousand rupees) as advance of such portion of demised shop and was also receiving rent at the rate of Rs.4000/- per month from them, therefore, he sent legal notice dated 26.03.2014 to the petitioner No.1 which was received by his son namely Faizan, while petitioners Nos.2 and 3 refused. Notices were issued for receiving the rent as well as seeking possession of demised shop No.2 along with two front portions required in good faith. It is further stated that after serving legal notice the respondent No.1 personally approached the petitioners at demised shop and requested them to pay monthly rent and hand over the possession of the demised shop but they issued him threats of dire consequences. As per respondent No.1, the petitioner No.1 committed wilful default in payment of monthly rent of Rs.30,000/- (thirty thousand rupees) from 10.03.2011 to 10.03.2014 for the period of 36 months amounting to Rs.10,80,000/- (ten hundred eighty thousand rupees) as arrears of hop No.2 and petitioners Nos. 2 and 3 committed wilful default in payment of monthly rent of Rs. 4,000/-each per month from 10.03.2011 to 10.03.2014 total amount of Rs.2,88,000/- as arrears of demised shop. Respondent No.1 claimed that he is running his small business of selling toys at Chotki Ghitti Hyderabad on Thiya/Hawker, therefore, he required the demised shop for his personal bona fide use in good faith. As there was no response from the petitioner, therefore he filed the rent application.

3. Petitioners filed their joint written objections, denied the title of the respondent No.1 over the demised shop so also relationship of landlord and tenant. They alleged the sale deed was fraudulent and outcome of collusive action with Hafiz Iftikhar to deprive the petitioner No.1 from his legal right who is original owner of Rim Jhim Chappal store since long. They denied to pay the rent of Rs. 30,000/- or keeping the respondent No.1 on false hopes to pay rent onto execute rent agreement. It is further stated that the shop No. 2 measuring about 421 Sq. ft. was with petitioner No.1 where he was doing business of Chappal in the name and title of "Rim Jhim Footwear shop. Subsequently, he purchased shop No. 2 in 1982 through agreement of sale and lastly registered sale deed was executed in favour of petitioner No.1 through registered deed No. 1421 dated 5.04.1995. According to him demised shop was situated on front side towards Resham Gali while building of Hafiz Iftikhar and Noor Muhammad Irfan was situated on back side of demised shop No.2, therefore, Hafiz Iftikhar and Noor Muhammad lrfan approached him and disclosed their intention to construct a shopping centre on their property, but as they had no way towards the main road of Resham Gali, as such, they in April, 1997 approached petitioner No.1, if he allowed them the area of Shop No.2 they shall pay Rs.37,00,0001- and further they shall give one shop at the same place with main gate towards main road of Resham Gali and will also give one Godown B-2 (Basement) for that they will charge Rs.20,000/- (twenty thousand rupees) as cost of construction. Per counsel, it was further agreed to sell shops B-1, B-15 on basement and shops Nos.10-G and 44-G on ground floor and one shop on mezzanine floor against the cost settled between the parties. The petitioner No.1 executed sale deed as per their suggestions in favour of their sister and they prepared sale agreement and subsequently power of attorney in favour of petitioner No.1. They also sent intimation about completion of shops and further payment on 14.11.1998 and subsequently drawn schedule of payment on 19.11.1998. They delivered possession of demised shop No.2 on ground floor and also B-1 and B-2 on basement. The petitioner No.1 made further payment in shape of cash and updated cheque for Rs. 476,000/- but they fraudulently arranged the sale of shop No.2 in favour of the respondent No.1 and other shops agreed to be sold to petitioner No.1, delivered possession to other persons instead of petitioner No.1. On receiving the notice of respondent No.1, the petitioners came to know about the fraud of above two persons which he replied on 07.04.2014 with request to settle the matter but they failed. The Petitioner No.1 already filed F.C. Suit No. 374/2014 against the respondent No.1 and both persons. There exists no relationship of landlord and tenant between the parties. The petitioners denied sub-letting of front portions and that petitioners Nos.2 and 3 are just salesmen of petitioner No.1. They also denied ground of personal bona fide need.

4. Learned Rent Controller after hearing the parties' counsel dismissed the rent application, which judgment was challenged by the respondent No.1 through F.R.A. No.26/2016, which was allowed by judgment dated 29.04.2017, which has been challenged by this petition.

5. Learned counsel for the petitioners contended that after purchase of the demised shop No.2 the Petitioner No.1 is owner of the same and there existed no relationship of landlord and tenant between the parties. He further argued that there is no misreading or non-reading in the order passed by the trial Court and the appellate Court judgment is to be set aside. The appellate Court has misread and misconceived the pleadings and the evidence of the parties on record that petitioner never remained tenant of Hafiz Iftikhar in shop in question, to the contrary sale deed Ex.14/A executed by Haifz Iftikhar in favour petitioner No.1 at page-4 para No.2 discloses that vacant physical possession of the property has been delivered to the vendee by the vendor by virtue thereof. He further contended that appellate Court has misapplied the principles of rent laws that "once a tenant is always a tenant" though nothing is on the record to show that petitioner remained tenant of Hafiz Iftikhar or respondent No.1 in Rim Jhim Footwear shop. Learned counsel while supporting the trial Court order submits that appellate Court by rendering the impugned judgment has, committed illegality, material irregularity and grave injustice, thus the impugned judgment is liable to be set aside.

6. Learned counsel for the respondent No.1 in his arguments submitted that the impugned order is perfect and passed while considering all the material aspects of the case while the trial Court had not appreciated properly the scope of section 15 of Sindh Rented Premises Ordinance, 1979. He has further contended that the petitioner No.1 at para No.2 of written objections filed at Ex-9 in the ejectment application stated that demised shop No.2 was with him on rent since 1971 but the learned Rent Controller failed to consider the above admission on behalf of Petitioner No.1 that initially the demised shop No.2 was obtained by him from previous owner and subsequently he has stated that the said shop was purchased by him through agreement of sale in the year 1982 and lastly registered sale deed No. 1421 dated 05.04.1995 was executed for shop No.2 measuring about 421 sq. ft. but actually no sale deed in respect of shop No.2 was executed as photostat copy of sale deed dated 05.04.1995 submitted with statement dated 11.11.2014 by Advocate for Petitioners before Rent Controller mentioned the property under sale "independent house bearing C.S. No.D-2219 measuring about 421 sq. ft. and nowhere in the sale deed dated 05.04.1995 demised shop No.2 under sale is mentioned and so also about the agreement of sale if, executed in 1982, therefore, the claim of petitioner No.1 regarding purchase of demised shop No. 2 is unfounded without any titled document and in this regard Suit No. 374/2014 is still pending. He has lastly, contended that the impugned judgment is well reasoned within the four corners of law and the same is required to be maintained. 7 Heard the learned counsel and reviewed the record.

8. A review of the trial Court's order shows that while deciding the F.R.A. the appellate Court was of the view that the ejectment application, points Nos.1 and 2 were answered in negative whereas points Nos.3 and 4 were not decided being infructuous. Therefore, following points were framed for determination in above appeal:- POINTS POINT NO.1: Whether there exists relationship of landlord and tenant between the respondent No.1 and respondent/opponent No.1? POINT NO.2: Whether Petitioner No.1 No.1 sublet two front portions of demised shop No.2, to Petitioners Nos.2 and 3 without consent and permission of the appellant/applicant? POINT NO.3: Whether Petitioners committed default in payment of rent of demised shop No.2? POINT NO.4: Whether demised Shop No.2 is required for personal bona fide use of the appellant/applicant? POINT NO.5: What should the order be?

9. The appellate Court decided the above points Nos.1, 2 and 3 in affirmative and point No. 4 in negative for the reasons that the respondent No. 1 alleged petitioner No.1 being tenant over the demised shop No. 2 and claiming himself to be the owner of the same on the basis of registered sale deed bearing No.1548 dated 10.03.2011 and mutation of record in his favour as per Extract From the Property Register Card dated 21.03.2014. The respondent No.1 in the ejectment application has alleged the demised premises being rented premises at para-2 wherein it was mentioned that after purchase, the petitioner No.1 requested the respondent/opponent No.1 to execute the rent agreement, but the same was not executed till filing of the ejectment application. The Respondent No. 1 examined his Attorney Muhammad Saleem Ansari by filing affidavit in evidence, who produced the Registered Sale Deed dated 07.03.2011 executed by previous owner Iftekhar Ansari in his favour and has also produced Extract from the Property Register Card at Ex-14/B as well as notice under section 18 of Sindh Rented Premises Ordinance to petitioner No.1, its reply and power of attorney. He has also examined previous owner Hafiz Iftikhar Ansari, who in his affidavit in evidence has stated that before selling the rented shop, petitioner No.1 Farooq Aqeel was his tenant and paying rent to him at the rate of Rs.30,000/- (Thirty thousand rupees) per month on the basis of oral tenancy agreement. He has specifically denied the blood relationship with the respondent Javeed Ahmed. Both attorney of respondent No.1 and previous owner Hafiz Iftikhar Ansari were cross-examined at length by the counsel for petitioners, but their evidence with regard to purchase of the demised shop No.2 bearing C.S. No. 2219/3/2 on ground floor, measuring 11-1 sq. yards, ward "D", situated at Resham Gali, Hyderabad through registered sale deed dated 10.03.2011 and mutation of same in favour of Respondent No.1 Javeed Ahmed remained consistent and corroborative whereas, the Petitioner No.1 claimed to be owner of demised shop No.2. The petitioner No.1 in rebuttal of the above evidence filed his affidavit in evidence wherein at para-5, he stated that he was not tenant of any person in the above shop which he was occupying in exchange of his shop measuring 421 Sq.ft. but the plea raised by petitioner No.1 that the respondent No.1 in collusion with Hafiz Iftikhar Ansari arranged the Sale Deed for the demised shop measuring 100 Sq.Ft. in his possession which he got from Hafiz Iftikhar in exchange of shop measuring 421 Sq.ft. and shop No. B-2, for which, he was to charge Rs.20,000/-(Twenty thousand rupees) cost of construction and Rs.8,00,000/- (Eight Lac rupees) which he got adjusted as earnest money for other five shops purchased from Hafiz Iftikhar and his brother in the said Shopping Mall and Hafiz Iftikhar gave him Rs.29,00,000/- (Twenty Nine Lac rupees) cash and he under instruction of Hafiz Iftikhar executed Sale Deed in favour of Mst. Safia sister of Hafiz Iftikhar and Noor Muhammad Ansari and they have not explained that how and in what capacity Hafiz Iftikhar executed the sale deed for the shop in question in his favour. The petitioner examined Hafiz Iftikhar Ansari from whom, questions put by the Counsel for respondent No.1 that it was agreed between Hafiz Iftikhar and petitioner Farooq Aqeel that in lieu of area of his shop viz 421 Sq.Ft, he will pay him cash of Rs.37,00,000/- (Thirty seven lac rupees) and so also give him one shop facing towards Resham Gali at the same place and one godown in basement bearing No.B/2 against payment of cost of construction to the tune of Rs.20,000/- (Twenty Thousand rupees) and so also out of said Rs.37,00,000/- (Thirty seven lac rupees) he paid Rs.29,00,000/-, to Petitioner No.1 in cash, but such suggestions were specifically denied by Hafiz Iftikhar during his cross-examination and in support of above defence plea raised by the petitioner No.1, no documentary or oral evidence led by him and during his cross-examination, petitioner No.1 has admitted that he has not produced original sale deed of such purchase in his evidence and has expressed his un awareness that the petitioner No.1 was present owner of the demised shop viz shop No.2. Learned appellate Court observed that respondent No.1 failed to mention in Rent Application that the Petitioner No.1 was tenant of previous owner PW-2 Hafiz Iftikhar, but in his evidence Attorney of Respondent No.1 alleged the Petitioner No.1 of Hafiz Iftikhar Ansari being beyond pleadings and the Rent Controller did not consider the same but he failed to take notice of the admission of Petitioner No.1 himself in his written objections that originally shop No.2 was with him on rent in the year, 1971 and learned Rent Controller ignored the admission on the part of Petitioner No.1 who initially entered into the demised shop being tenant but subsequently he purchased the said shop in the year 1982 through agreement of sale as stated at page-2 of written objections filed by petitioners before the Rent Controller. Neither the sale agreement executed in the year 1982 was produced nor, the Registered Sale Deed in pursuance of the said agreement of 1982 executed on 05.04.1995 mentions about the demised shop No.2 subject matter of Registered Deed No.1421 dated 05.04.1995 because the Photostat copy of said Sale Deed dated 05.04.1995 submitted by the counsel for the Petitioners on 11.11.2014 with statement before the Rent Controller mentioned "Independent House bearing C.S. No. B-2219 measuring 421-0 Sq.Ft." was the property under sale whereas the demised shop No. 2 bearing its C.S. No. 2219/3/2 in ward-"D" area 11-1 Sq. Yards a different property then the property under sale vide sale deed dated 05.04.1995 whereas the Petitioner No.1 further relied upon agreement to sale allegedly executed in April, 1987 by Hafiz Iftikhar but Photostat copy of the said agreement submitted by Petitioner No.1 with statement dated 11.11.2014 is admittedly an unsigned document having no validity in the eyes of law and nothing is available on record regarding admission by the Respondent No.1 before the Rent Controller, therefore, mere filing of Civil Suit by the Petitioner No.1 before Civil Court in respect of demised shop No.2 would be no ground to deny the relationship of landlord and the tenant unless the Petitioner No.1 succeed in obtaining such decree about the demised shop No.2 in his favour particularly when the Petitioner No.1 in this written statement himself admitted that he was on rent in the demised shop No.2 in the year 1971. It is well settled principle "once a tenant always a tenant". The petitioner No.1 in his written statement at Para-2 of page-2 stated as under:- "It may be clarified that originally the shop No.2 measuring about 421 Sq.Ft. was with opponent on rent since 1971 where opponent No.1 was doing the business of Chapal in the name and title of Rim Jhim Footwear shop. Subsequently, the opponent No.1 purchased the above shop in 1982 through Agreement of Sale and lastly registered Sale deed was executed in favour of opponent No.1 through registered Deed No.1421 dated 05.04.1995."

10. Also the petitioner No.1 in his written statement has admitted that originally the demised shop No.2 was with him on rent since 1971, but later on he purchased the same through Registered Sale Deed dated 05.04.1995 which does not mention the description of demised shop No.2 bearing C.S. No.2219/3/2 and such fact is to be proved before Civil Court where the suit filed by the Petitioner No.1 is still pending but since he has admitted that originally the demised shop No.2 was with him on rent since 1971, hence, until unless the suit filed by the Petitioner No.1 is finally decreed in his favour, he is a tenant over the demised shop No.2. Article 115, which is very relevant in the present circumstances of the case, reads as under:- "

115. Estoppel of tenant and of licensee of person in possession.

No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given."

11. It is well settled law that "Once a tenant always a tenant". The appellate Court was of the view that existence of tenancy initially at the time of occupation of the demised shop estopped the Petitioner No.1 from questioning the title of landlord. That the Petitioner No.1 claiming to be owner of the demised shop under Sale Deed dated 05.04.1995, which nowhere mention about the demised shop No.2 bearing C.S. No.2219/3/2 of Ward-D area 11-1 Sq.Yards, for which, suit filed by him is still pending, therefore, Petitioner No.1 since accepted to have entered into the possession of the demised premises as tenant cannot be allowed to challenge title of his landlord. The reliance in this regard is placed on 2015 YLR 647 (Shell Pakistan v. IVth Additional District Judge).

12. The appellate Court was also of the view that the Petitioner No.1 filed suit for declaration, specific performance of contract, cancellation of sale deed and permanent injunction being F.C. Suit No.374 of 2014 which is pending but mere on the ground of pendency of such suit tenant could not occupy the demised premises for an indefinite period and take premium of suit. The Rent Tribunals having limited power and have to decide the matters arising between tenants and landlords. Admittedly, the Respondent No.1 issued notice to the Petitioner No.1 after change of ownership and the same was also replied by denying the relationship on the grounds mentioned in the written objections and the claim of ownership by Petitioner No.1 was admittedly not yet established due to pendency of Civil Suit but the Petitioner No.1 sinc originally occupied the demised shop as tenant, hence the relationship of landlord and tenant existed between the Respondent No.1 and Petitioner No.1 whereas, the Rent Tribunal had no jurisdiction to decide intricate question of title "once a tenant was always a tenant". The reliance in this regard is placed upon 2016 MLD 1738 (Re-Jameel Ahmed Naaz v. Super Associates and 2 others). It was on these grounds that the appellate Court set aside the order dated 30.08.2016 passed by Vth Senior Civil Judge/Rent Controller, Hyderabad in R.A. No. 53/2014 (Re-Javeed Ahmed v. Muhammad Farooque Aqeel and two others) and allowed the aforementioned F.R.A. as prayed and while considering the old tenancy, the petitioner No.1 was allowed six months to vacate the demised premises of passing the above judgment. I do not see any error in this outcome.

13. Be that as it may, this Constitutional Petition in Rent proceedings has to critically pass through the test laid down by the judgment rendered by Honourable Supreme Court in the case of Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others (2001 SCMR 338) as well as in the cases reported as PLD 2018 SC 81, 2014 YLR 2331 and 2016 CLC 1850, which it fails.

14. A review of the judgment passed by the appellate Court shows that it is well reasoned, speaking and rendered after considering all material aspects of the case within the four corners and no illegality, patent error or material irregularity apparent on the surface, which requires interference of this Court in Constitutional Petition which has narrow scope and this Court could not have taken cognizance of under the Constitutional jurisdiction. Additionally it is a well-established legal position that judgments of the higher forum are to be given preference over the judgments of the lower forum.

15. In the given circumstances where no mandate is available in the Constitution to openly interfere with the rent proceedings, this petition is accordingly dismissed as being meritless along with pending application and the appellate Court's judgment is upheld. The petitioner No.1 is directed to vacate the demised shop within next 30 days from today. MQ/M-164/Sindh Petition dismissed.