BILAL Versus VITH A.D.J. (South), Karachi

ORDER

AHMED ALI M. SHAIKH, J.--- Through this constitutional petition, the petitioner has called in question the judgment dated 17-3-2011 passed by learned VI-Additional District Judge, Karachi South in F.R.A. No.194 of 2010 concurring with the order dated 12-3-2010 passed by learned V-Senior Civil Judge and Rent Controller, Karachi South in Rent Case No.1155 of 2005 directing the petitioner to vacate the premises in question within 60 days.

2. Facts giving rise to this petition are that the respondent No.2 filed an application under section 15(2)(ii) of Sindh Rented Premises Ordinance, 1979 seeking ejectment of the petitioner from the Shop bearing No.50, situated on Ground Floor, Shahjehan Centre on Plot No.G-19 of Plot No.31/4 and 6, Survey Sheet PR-2, Preedy Quarters, Abdullah Haroon Road, Karachi, on the ground of default.

3. The Petitioner being Opponent in the aforesaid proceedings defended the rent case inter alia on the ground that neither the respondent No.2 is landlord of the shop nor the petitioner is his tenant and there is no relationship of landlord and tenant between the parties and the demised premises has been purchased by his brother Muhammad Amin through the father of respondent No.2 namely Syed Raza Ahmed through Sale Agreement, but he refused to execute the sale-deed in favour of his brother, as such his brother has filed a suit for Specific Performance of Contract and Permanent Injunction against respondent No.2 in the Court of V-Senior Civil Judge, Karachi South.

4. During pendency of the aforesaid Rent Case, the learned Rent Controller on 15-5-2008 passed an order on application under section 16(1) of Sindh Rented Premises Ordinance, 1979, whereby petitioner was directed to deposit the arrears of unpaid rent as well as to pay the future monthly rent on or before 10th of every succeeding calendar month. The aforesaid order of the learned Rent Controller was challenged by the Petitioner before this Court through Constitutional petition No.S-271 of 2008 and subsequently the petition was allowed vide judgment dated 10-11-2008. Aggrieved by that judgment, the respondent No.2 approached the honourable Supreme Court and filed Civil Appeal No.2230 of 2008, which was allowed by order dated 9-6-2009 and consequently the impugned judgment dated 10-11-2008 passed in C.P. No.S-271 of 2008 was set aside and the order dated 15-5-2008 passed by the Rent Controller was restored. Though the order dated 15-5-2008 was restored by the apex Court, but the petitioner did not comply with the said order and did not deposit a single penny with regard to the rent arrears, ultimately on 12-3-2010 the Rent Controller passed order under section 16(2) of Sindh Rented Premises Ordinance, 1979, struck off the defence of the petitioner and he was directed to vacate the premises in question and hand over its peaceful and vacant possession to the landlord/respondent No.2 within a period of 60 days. The petitioner impugned the above order through F.R.A. No.194 of 2010, which was dismissed by the learned VI-Additional District Judge, Karachi South vide judgment dated 17-3-2011, hence the petitioner filed instant petition.

5. It is, inter alia, contended by the counsel for the petitioner that neither the respondent No.2 is the owner of the demised premises nor relationship of landlord and tenant exist between the parties. Per learned counsel, the premises, which is the subject-matter of these proceedings was purchased by his brother Muhammad Amin from the petitioner through his father and in this respect a Sale Agreement was reduced into writing, but the respondent No.2 refused to execute sale-deed, therefore, the brother of the petitioner filed Suit for Specific Performance of Contract and Permanent Injunction. It is contended that in absence of relationship of landlord and tenant between the parties the Rent Controller could not pass the orders under sections 16(1) and 16(2) of Sindh Rented Premises Ordinance, 1979 and the Rent Controller ought to have left that question till final decision of the rent application. It is further contended that two Courts below have passed the impugned judgment on technical grounds instead of merits and without providing proper opportunity to the petitioner. Lastly, the counsel for the petitioner urged with vehemence that the Rent Controller has passed the impugned orders in violation of judgment dated 10-11-2008 passed in C.P. No.271 of 2008. In support of his contention learned counsel relied upon the following case-laws:--

(i) Abdul Hameed v. Muhammad Jawed reported in 1999 MLD 3031, Karachi.

(ii) Muhammad Amin v. Zahida Begum reported in 1985 CLC 3018, Karachi

(iii) Hassan Mohiuddin v. Muhammad Hanif reported in 1985 CLC 1606, Karachi

(iv) Miskina Jan v. Rehmat Din reported in 1992 SCMR 1149.

6. On the other hand, counsel for respondent No.2 contended that the honourable Supreme Court has restored the order dated 15-5-2008 passed by the Rent Controller on application under section 16(1) of Sindh Rented Premises Ordinance, 1979, whereby petitioner was directed to deposit the arrears of unpaid rent as well as future monthly rent on or before 10th of each calendar month, but the petitioner intentionally and deliberately failed to deposit the same, hence the Rent Controller was justified to pass the impugned order whereby he struck off the defence of the petitioner and allowed the rent application. Counsel for respondent No.2 further contended that it is settled principle of law that in case of dispute of relationship of landlord and tenant between the parties, the tenant has to vacate the premises and hand over the same to the owner/landlord.

7. Heard learned counsel for the parties and perused the material available on record.

8. From the pleadings it appears that at the very outset the petitioner disputed the relationship of landlord and tenant and took specific plea that demised premises has been purchased by his brother Mohammad Amin from the respondent No.2 through his father Syed Raza Ahmed and such Sale Agreement was reduced into writing, but later on respondent No.2 did not execute the Sale-deed, therefore, his brother filed a suit for Specific Performance of Contract and Permanent Injunction. Record further reflects that during pendency of proceedings before the Rent Controller, the respondent No.2 moved an application under section 16(1) of Sindh Rented Premises Ordinance, 1979, which was allowed by the Rent Controller vide order dated 15-5-2008, whereby the petitioner was directed to deposit the arrears of rent and future monthly rent. The aforesaid order was assailed by the petitioner before this Court in C.P No.S-271 of 2008, which was allowed by order dated 10-11-2008, but ultimately the judgment passed by this Court in the aforesaid petition was set aside by the honourable Supreme Court in Civil Appeal No.2230 of 2008 and order dated 15-5-2008 passed by the Rent Controller was restored by order dated 9-6-2009.

9. It is pertinent to mention here that though the order dated 15-5-2008 was restored by the honourable Supreme Court, but even then the petitioner did not comply with the said order, hence the Rent Controller was justified to pass order under section 16(2) of Sindh Rented Premises Ordinance, 1979. Another aspect of the case is that from the initial stage of the proceedings, the petitioner has denied the relationship of landlord and tenant between the parties and took a plea that the property, which is the subject-matter of these proceedings, has been purchased by his brother from respondent and in this respect Civil Suit for Specific Performance has been filed. It is settled principle of law that in case of denial of relationship of landlord and tenant, the tenant has to vacate the premises and file a suit for specific performance of contract whereafter he would be given easy access to the premises in case he prevails. In this respect reference can be made to the case of Abdul Rasheed v. Maqbool Ahmed reported in 2011 SCMR 320.

10. With profound respect, law relied upon by the counsel for the petitioner is distinguishable and not helpful to the case in hand, as in the above cases the orders passed under section 16(1) of Sindh Rented Premises Ordinance, 1979 by the Rent Controllers were not approved, whereas in the present proceedings the order dated 15-5-2008 passed by the learned Rent Controller was restored by the honourable Supreme Court vide order 9-6-2009 and the petitioner was bound to comply with the said order, but he did not deposit a single penny in respect of rent arrears or future monthly rent.

11. In the above circumstances and dicta laid down by their Lordships in Abdul Rasheed's case (supra) and the circumstances of the case, I am of the considered view that the instant petition being devoid of merits, needs no consideration, which is accordingly dismissed.

12. For the foregoing reasons, the Constitutional Petition was dismissed vide short order dated 6-7-2011.

M.H./20/k Petition dismissed.