MUHAMMAD ISMAIL NIZAMI and others vs JAVED IQBAL and another

' KHILJI ARIF HUSSAIN, J.---The petitioners impugns the judgment passed by a learned Single Judge in Chambers of High Court of Sindh at Karachi, whereby the learned Judge while remanding the case directed that the possession of the shop in question be handed over to respondent within 15 days either by the petitioners themselves and/or whoever is in possession of the demised shop through the petitioner and on their failure the Nazir of District Court (Central) Karachi with police aid put the respondent in possession.

2. Brief facts to decide the instant petition are that the petitioners are owner/landlord of the shop situated at ground floor of Plot No,85/5 Chota Maidan, Nazimabad, Karachi (hereinafter referred to as the property in question) and the said shop was let on to respondent firstly by their late father and after demise of their father the petitioners entered into tenancy agreement with respondent on 29th January, 2013. The petitioner alleged that the respondent under an agreement of tenancy was liable to pay rent and other utility charges which he failed to pay and that the respondent had executed an affidavit dated 7.1.2014 undertaking to pay the outstanding dues by January, 2015.

3. Learned counsel for the petitioners contended that on failure of the respondent to pay the rent and the utility charges the respondent left the shop and in these circumstances they occupied the same. On the other hand from the perusal of the record it appears that on the day petitioner took possession of the shop in question respondent filed a complaint with the concerned Police Station and after some time he filed an application under sections 3, 4, 7 and 8 of the Illegal Dispossession Act, 2005. The criminal complaint filed by the respondent was dismissed by the 3rd Additional Sessions Judge, through his order dated 14.02.2014 on the ground that he himself admitted while annexing the affidavit regarding dues of utility charges and request for extension of time to pay the same and that application was not maintainable as petitioners are owner of the shop in question.

That order was impugned by the respondents by filing the Criminal Revision before the High Court which was accepted through impugned judgment.

4. Learned counsel for the petitioners contended that the petitioners are owner of the property in question and since the respondent who was tenant failed to pay the rent and left the property unattended as such they occupied the same.

5. On the other hand learned ASC for the respondent contended that it is admitted fact that the respondent was tenant in the shop in question and he categorically stated that he was dispossessed by using force by the petitioners and on the basis of available record the learned High Court rightly remanded the matter to the learned Trial Court to decide it afresh by granting relief under section 7(1) of the Illegal Dispossession Act, 2005.

6. We have taken into consideration the contentions raised by the learned counsel for the parties and with their assistance perused the available record. We intentionally not making any detailed comments on the issues of the matter so remanded by the High Court, however, with regard the interim relief granted by the High Court in exercises of his power conferred on Court under section 7(1) of the Illegal Dispossession Act of 2005 to hand over possession of the shop to the respondent pending disposal of the Criminal complaint by ADJ, we have noted that in the impugned judgment learned High Court itself noted that certain goods, immovable articles of the respondents were lying in the shop occupied by the petitioners and same were handed over to them vide order dated 13.1.2014 which support the contention of respondent that petitioner illegally occupied the shop in question.

6(sic.) In this view of the matter the impugned judgment call for no interference and accordingly the petition is dismissed and leave refused.