2017 PLP 68 (YLRN)

MUHAMMAD IQBAL KALHORO, J.

Petitioner has preferred this petition against the judgment in F.R.A. No.306 of 2010 directed against the order dated 31.08.2010, passed by the learned VI-Rent Controller, Karachi East dismissing Rent Case No.388 of 2006 filed by him against the respondent.

2. Petitioner claims to be owner of Flat No.D-6, Apsara Apartment Block-14 Gulshan-e-Iqbal Karachi. He purchased said flat from its previous owner namely Shahzad Sharjeel through a sale agreement executed in December, 2005 and sale deed dated 28.04.2006. The petitioner before purchasing the said flat was residing on 4th floor of the same building, but because he got ill and was diagnosed to be suffering from bone cancer, he had to buy the flat on the ground floor as he was advised to not climb stairs. And after purchasing the said flat, he asked the opponent to vacate it but in vain. He served a notice in this regard on him but without any result, hence, he finally filed above stated rent application, which was dismissed. Appeal preferred against the same by him was also dismissed vide impugned judgment.

3. The claim of the opponent in his written reply to the rent case was that he had not committed any default in payment of rent, and after refusal to accept rent by the previous owner of the flat; he started depositing it in MRC No.277 of 2006. About status of the petitioner, he has stressed that since he failed to show any proof of his ownership of the said premises, there was no occasion to pay him rent or vacate the premises at his instance.

4. Mr. Abaad-ul-Husnain, learned counsel for the petitioner in his arguments referred to various documents including sale deed to establish ownership of the petitioner. Learned counsel also read out notices issued to the respondent in this regard to stress his point that he was fully aware of the sale of the said flat in favour of the petitioner, but mala fide he refused to vacate it. He also read out the impugned findings of the courts below, which, according to him, were not in accordance with the law as both the courts had observed that it was duty of the previous owner of the flat to first get possession of the said flat vacated from the opponent and hand it over to the petitioner. Learned counsel also referred to the findings of the trial court to the effect that the case of the petitioner was based on sale agreement, which, according to him, were factually incorrect as the petitioner had filed a copy of the sale deed along with ejectment application. In order to further support the case, learned counsel also referred to the notice dated 08.12.2005 sent to the opponent by the previous owner of the flat informing him about the sale of the said flat to the petitioner. Learned counsel relied upon the decisions reported in 2001 SCMR 678, 2011 SCMR 581, 2009 SCMR 893, 2000 SCMR 1782, 2006 SCMR 152 and 2006 SCMR 1501.

5. On the other hand, Mr. Iftikhar Javaid Qazi, learned counsel for the respondent No.1 argued that insofar as the ground of default against the opponent was concerned, it was not established through evidence. He stated that since June 2006, rent was paid to the previous owner and whereafter opponent started depositing rent in MRC No.277 of 2006. As regards to the ground of the petitioner that he was not able to climb up the stairs due to his illness, he urged that it was belied by his own admission in cross-examination to the effect that he was regularly appearing in the court situated on 3rd floor to attend his case and was also performing his duty. Stance of the learned counsel was that when a person was regularly climbing up 3 floors to attend his case, he cannot maintain ejectment application on the ground that he was not able to climb up 4 floors to reach his flat. His next contention was that the petitioner in his application had spoken about his personal need exclusively, but had not urged that the premises were also required for his family as well, hence after his death no such ground was available to his legal heirs, and if they are in need of the flat for personal use, they ought to file separate proceedings for it. Learned counsel in support of his arguments relied, upon the decisions reported, in 1994 MLD 1029, 1997 CLC 780, PLD 2008 Kar. 361, 2005 CLC 1696 and 2003 SCMR 1662.

6. I heard learned counsel for the parties, and have perused the material available on record, including the decisions cited at the bar. A recital of record reflects that previous owner of the demised premises namely Shahzad Sharjeel after selling the said flat had intimated the opponent of such sale through a letter dated 08.12.2005, and asked him to vacate it within one month's period. Factum of such sale was also published in daily newspaper 'Aman' dated 03.06.2006. And prior to it notice to this effect was also got published by the previous owner of the flat in daily newspaper 'Express' dated 08.05.2006. Whereafter, by a legal notice dated 29.05.2006, he again informed the opponent that he had sold out the flat to the petitioner and had also executed sale deed in his favour; therefore he should not thenceforth approach him in regard to any tendency matter of the said flat. His legal notice was replied by the opponent through his counsel on 05.06.2006 claiming that he himself had had some negotiation for purchase of the said flat with him and therefore he intended to challenge its selling out to someone else, and regarding payment of rent to the petitioner, he mentioned that it was subject to his furnishing a copy of sale deed. Record further reflects the continuous correspondence between the parties in this respect and the demand of the respondent to supply him a copy of sale deed first. This correspondence sufficiently establishes on the one hand the ownership of the petitioner and on the other conveying of such information to the respondent. In these circumstances insistence of the respondent to pay rent to the petitioner only after seeing the sale deed of the flat first speaks of but his ill-intentions to continue his possession. In law a tenant has no right to demand title documents from the landlord after he is conveyed of change of ownership through reliable source. For reliance case of Messrs Habib Bank Ltd. v. Sultan Ahmed and another reported in 2001 SCMR 678 can be referred to. The other aspect of the case of the respondent, which was highlighted by his counsel in his arguments, was that the sale agreement does not confer any title on the prospective buyer and he cannot insist for enforcement of his rights as landlord; it is factually incorrect. The rent application filed by the petitioner shows that he had appended with it a copy of the sale deed of the flat, which in no ambiguous word discloses his title over the said flat.

7. I have also examined the various documents submitted by the petitioner showing that he was suffering from bone cancer and was advised by the doctor to not climb up the stairs. It was one of the grounds on which the ejectment application was filed by him. In rebuttal whereof the case of the opponent is that the petitioner during pendency of the ejectment application used to climb up 3 floors to attend his case and also used to perform his duty, which entirely negated his case on the ground of his illness. I am of the view that any parity between two situations could hardly be drawn, the opponent in order to pursue his case had to reach the court situated on 3rd floor of the building, and it was beyond his volition to avoid it. If the court of learned Rent Controller was situated on the said floor, he could not help it. Learned counsel for the opponent during his arguments had insisted upon the point that as the petitioner had died during pendency of these proceedings and the case was exclusively based on his personal need, therefore after his death the proceedings were not maintainable and his legal heirs should file a separate application in this regard. I do not find myself persuaded by such proposition, if the applicant filed rent application, inter alia, on the ground of personal need, it would not be considered that his intention was to live alone there independent of his family, and thus after his death the case on such ground cannot be maintained by his legal heirs. And it is also worth mentioning that there is nothing on record to show that the petitioner had any other place to live on as owner except the flat in question and after him, I was informed, his family is still living on rent. Indeed the personal need of the legal heirs of the petitioner is established from this fact alone.

8. With respect to the ground of default, it may be observed that although the respondent started depositing rent of the said flat in MRC since June, 2006, but such act does not appear to be based on any bona fide consideration either. For, there is nothing to suggest any refusal by either previous owner or the petitioner to accept the rent from him to justify filing of the MRC. And it is also part of the record that the respondent in the said MRC had opposed the petitioner to withdraw the rent, and only in the year 2009, he gave partial no objection to him to withdraw. Such conduct on his part amounted to refusal to pay rent to the petitioner despite having knowledge of his ownership of the said flat. His act of depositing the rent in MRC from June, 2006, after he was communicated shifting of the ownership of the flat in favour of petitioner was meant to save himself from any prospective default on the one hand and on the other to continue his occupation of the flat in total disregard to the need of the petitioner.

9. I have read the impugned judgments; it is obvious that the evidence and the documents have not been properly appreciated. The courts below appear to have been swayed away by a wrong and skewed assumption of the facts and law and their findings are based on no material, and therefore need intereference by this Court. Cosnequently, I set side both the impugned judgments and allow the rent application filed by the petitioner. The opponent is directed to vacate the premises within fifteen (15) days of this order. ZC/J-8/Sindh Petition allowed.