Mst. SEEMA BEGUM vs MUHAMMAD ISHAQ and others

' SYED SAKHI HUSSAIN BUKHARI, J.---We propose to dispose of above appeals by this common judgment as both arise out of the same order. These appeals through leave of this Court are directed against the order dated 28-2-2006 passed by the High Court of Sindh, at Karachi, whereby Writ Petitions No.S-2 and 3 of 2006 filed by Muhammad Ishaq, respondent No.1 were accepted.

2. Relevant facts for the disposal of these appeals are to the effect that Mst. Seema Begum- petitioner, filed an ejectment petition under section 15 of the Sindh Rented Premises Ordinance, 1979 against Muhammad Ishaq, respondent No.1 , stating therein that respondent was in possession of disputed properties as tenant, he, had failed to pay the regular monthly rent at the rate of Rs, 1000/ per month and also defaulted in payment of maintenance charges and other taxes. The respondent contested the application by filing reply to the same denying the averments of the petition taking specific stand that he had purchased disputed property from appellant through an agreement to sell, therefore, relationship of landlord and tenant did not exist between the parties and application brought by the appellant was not maintainable. The case of appellant is that respondent No.1 was in possession of the disputed property since 13-10-1982 as her tenant.

While the respondent denied the existence of tenancy on the basis that she (appellant) agreed to sell suit property in his favour and in this regard an agreement to sell had been executed, therefore, application was not maintainable. During pendency of said application the appellant filed petition under section 16(1) of the Sindh Rented Premises Ordinance, 1979 for issuance of direction to respondent to deposit arrears of the rent and to pay future rent. After hearing the parties, learned Rent Controller accepted the petition brought by appellant and directed the respondent to deposit arrears of rent at the rate of Rs,1,000 per month from January 2000 to December 2005 and also to pay future rent at the same rate before 10th of each month vide order dated 23-12-2005. The respondent filed Writ Petition No.S-2 and 3 of 2006 there against which were allowed vide impugned order, out of which these appeals have arisen.

3. We have heard the arguments of learned counsel for the appellant as well as respondent No,1 and perused the record. As mentioned above Mst. Seema Begum, appellant had filed application under section 15 of the Sindh Rented Premises Ordinance, 1979 against respondent No,1 asserting therein that the respondent No,1 is in possession of disputed property since 13-10-1982 as her tenant and defaulted in payment of monthly rent. However, the respondent stated in his reply that appellant agreed to sell the disputed property in his favour vide agreement dated 13-10-1982, he has filed a civil suit for "specific performance" of the agreement in respect of the agreement of the said property in the civil Court hence, relationship of landlord and tenant between the parties did not exist, therefore, he was not bound to pay rent to the appellant and order passed by learned Rent Controller was illegal.

4. We have considered the submissions of learned counsel for the appellant and respondent No,1.

Admittedly appellant is owner of properties in question and respondent is in possession of the same since 1982. The respondent had taken the plea that appellant had agreed to sell suit property in his favour and he is in possession as owner not as tenant. But the case of appellant is that respondent is her tenant and agreement to sell dated 13-10-1983 is a forged/fabricated document.

The respondent stated that he had already filed suit for "specific performance" of contract on the basis of said agreement. However, learned counsel for the appellant submitted that the suit brought by the respondent had been dismissed on 2-8-2006 due to non-prosecution and non- appearance of plaintiff and the same has not been restored so far. The respondent who is present in Court in person states that he had filed application for restoration of his suit which is still pending. From the record, it is established that as per plea of the respondent, he had purchased the property through agreement to sell of property in dispute, which was executed on 13-10-1980 and he had filed a suit for specific performance of agreement on 29-4-2002, after expiry of period of limitation as provided in Article 113 of the Limitation Act and that too, when the appellant intended to file the ejectment petition. The respondent, in fact, slept over his right for such a long period of about 20/22 years and remained in a state of dormancy. Even otherwise, mere pendency of civil suit in Court cannot defeat, prima facie, established title for purpose of rent cases under the Rent Restriction Ordinance. The genuineness or otherwise of alleged agreement and its consequential effect would be independently determined by the civil Court. It is settled law that till the time tenant was able to establish his claim for "specific performance" on A 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 sale agreement. This argument is strengthened by the dictum laid down in the cases of Haji Jumma Khan v. Haji Zarin Khan (PLD 1999 SC 1101), Iqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242), Waheed Ullah v. Rehana Nasim (2004 SCMR 1568) and Muhammad Nazir v. Saeed Subhani (2002 SCMR 1540). So in the circumstances of the case, we find that claim of respondent is baseless. 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 B 115 of Qanun-e-Shahadat Order would come into play, debarring such tenant to deny the title of his landlord. Reference can usefully be made to the cases of Habib Khan v. Haji Haroon- ur-Rashid (1989 CLC 783) and Nazir Ahmad v. Mst. Sardar Bibi and others (1989 SCMR 913). The impugned order shows that learned High Court has not adverted to this aspect of the case and decided the same arbitrarily. As such the impugned order being without backing of authority of law is liable to be set aside.

5. The sale agreement did not confer any title on the tenant unless the same was determined by the Court of competent jurisdiction. Reliance in this context can be placed on the case of Mst. Bor Bibi and others v. Abdul Qadir and others (1996 SCMR 877). Such agreement (Agreement to sell) would not authorize non-payment of rent by tenant from the date of entering into the agreement.

Reference may be made to the case of Haji Jan Muhammad v. Ghulam Ghous and 2 others (1976 SCMR 14) and Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan (PLD 1986 Karachi 74).

6. It is pertinent to note that according to impugned order notices were issued to respondent (present appellant) but she did not appear. No ex parte, proceedings were initiated against her and instead of admitting the petitions to regular hearing, the same were allowed on the same day.

7. The most important aspect of the case is that respondent Muhammad Ishaq had challenged the interim order passed by learned Rent Controller in the Constitution Petition. As such the same was not maintainable and impugned order is liable to be set aside on this score alone.

8. For what has been discussed above we are of the considered opinion that order passed by Rent Controller is just and proper. The impugned order is not sustainable in the eyes of law. So these appeals are accepted and the impugned order passed by the High Court is accordingly set aside and that of the Rent Controller restored. No order as to costs.