Syed ASGHAR HUSSAIN Versus MUHAMMAD OWAIS
MUHAMMAD SALEEM JESSAR, J.--- This Constitutional Petition has been filed by Petitioner Syed Asghar Hussain/tenant, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against whereby he has challenged the judgment dated 20.05.2017 passed by District Judge Karachi (East) in F.R.A. No. 99/2016 filed by the petitioner/tenant, maintaining the order dated 13.08.2016 in rent case No. 38 of 2014 passed by XI-Rent Controller, Karachi (East) over an application under section 16(2) of Sindh Rented Premises Ordinance, 1979, whereby he allowed application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 (S.R.P.O., 1979) moved by respondent No.1 and struck off defence of the petitioner and directed him to vacate the premises in question and handover its vacant and peaceful possession to respondent No.1 within 30 days.
2. Precisely, the facts giving rise to the filing of instant petition, are that respondent No.1 filed ejectment application under section 15 of the S.R.P.O., 1979, stating therein that he had let out the property i.e. Flat No.202, 2nd Floor, Mustafa Tower, situated on Plot No.419-E, Block No.7/8, C.P. Barar Society, Amir Khusro Road, Karachi (premises in question) to the Petitioner on monthly rent of Rs.12,500/- under rent agreement dated 01.07.2005. The petitioner had paid an amount of Rs. 75,000/- to the respondent as advance security deposit. It was further averred in the ejectment application that the petitioner had paid the rent during the period of July to December, 2005 at the rate of Rs.12,500/- per month and thereafter he paid rent of Rs.10,000/- per month from January 2006 to May 2006. It was further stated that as per clause 10 of the rent agreement it was agreed between the parties that the rent of the premises in question will be increased by 10% per annum after expiry of 11 months and after that, the rent will be Rs.13,750/ per month but despite the fact, the petitioner continued to pay the rent of Rs.10,000/- per month from June to April 2007, therefore, the outstanding balance against him came to Rs.41,250/-. It was further asserted that the rent from May, 2007 to March 2008 after increase of 10% was to be paid at the rate of Rs.15000/- per month but the opponent/petitioner continued to pay the rent at the rate of Rs.10,000/-, as such the balance increased to the tune of Rs.55,000/- and likewise after completing 2nd and 3rd tenure the rent was to be paid at the rate of Rs.17,500/- per month from March 2009 to December 2009 but the petitioner still continued to pay rent at the same rate of Rs.10,000/- per month, therefore, the rent arrears along with annual increase remained unpaid by the petitioner from March 2009 to December 2009 and further from January 2010 to April 2010, with the result the total arrears of rent due and payable by the petitioner/opponent came to amount of Rs.1,48,750/-.
3. It was further stated in the rent application that the petitioner was to pay the maintenance charges to the Union of 'Mustafa Towers' at the rate of Rs.1500/- per month but he did not pay a single penny on that account since July 2005 till the date of filing of ejectment application which came to Rs.85,000/-. It was also averred that the petitioner also did not pay the water and sewerage charges of Rs.250/- per month since July 2006, as such the petitioner was also liable to pay a total amount of Rs.14,250/- on this account also. The applicant/respondent No.1 further stated that a legal notice was got issued by him to the petitioner which was not replied by him. In the circumstances, the respondent claimed that the opponent/petitioner was habitual defaulter in payment of monthly rent and was liable to be evicted from the premises in question.
4. The respondent also filed an application under section 16(1) of the S.R.P.O., 1979 praying therein for issuance of direction to the opponent/petitioner to make payment of the arrears of rent, so also arrears of maintenance charges and utility bills.
5. Upon service of notice, the opponent/petitioner filed written statement wherein he monthly denied the allegations made in the ejectment application. He even denied the relationship of landlord and tenant between the parties stating that the documents attached with the ejectment application were manipulated and concocted and that the respondent is in habit of preparing fictitious documents and on the basis of such documents he used to grab the flats. He claimed to be the absolute owner of the premises in question.
6. He also filed counter affidavit to application under section 16(1) of SRPO, 1979 wherein, while reiterating the contents of written statement, he stated that he was not liable to pay any amount towards arrears of rent to the respondent and prayed that the application, being not maintainable, may be dismissed.
7. It appears that learned Rent Controller after hearing counsel for the parties vide order dated 11.11.2013 passed tentative order under section 16(1) of S.R.P.O., 1979 thereby directing the petitioner to deposit future monthly rent at the rate of Rs.27,225/- per month on or before 10th of each English Calendar month and such amount of rent would be withheld in the Court till further orders of the Court or till the ejectment application is disposed of. It was further observed in the order that the question of amount of arrears would be decided after leading proper evidence by both the sides.
8. The petitioner failed to comply with the 'said tentative order, therefore, the respondent/landlord filed an application under section 16(2) of the S.R.P.O., 1979 for striking off defence of the opponent/petitioner. Learned Rent Controller called report of the Nazir on such application and thereafter he vide order dated 13.08.2016 granted the said application and struck off defence of the opponent/petitioner, with the result the ejectment application was also allowed with the direction to the petitioner/tenant to vacate the premises in question and handover its peaceful vacant possession to the respondent/landlord within 30 days.
9. The petitioner challenged the said order by filing F.R.A. No.99 of 2016 which was also dismissed vide impugned order passed by the appellate Court, hence the petitioner/tenant has preferred instant petition.
10. I have heard learned counsel for the parties and perused the material available on the record.
11. Learned counsel for the petitioner contended that the two courts below while passing the impugned orders have erred in law and facts. He further contended that although no relationship of landlord and tenant exists between the parties, despite that both the courts below failed to determine the said point by recording evidence. According to him, the petitioner is absolute owner of the premises in question as such there is no question of paying or depositing any rent in respect of premises in question by the petitioner. He further contended that both the courts below have failed to take into consideration the fact that the respondent has filed the ejectment application in respect of Flat No.202 whereas the petitioner is in possession of Flat No.201, as such the ejectment application was liable to be dismissed on this score alone. He argued that the impugned orders have been passed in a hasty and mechanical manner hence the same are liable to be set aside. In support of his contentions, learned counsel for the petitioner relied upon the case-law reported as Umar Hayat Khan v. Inayatullah Butt and others (1994 SCMR 572), Rahmatullah v. Ali Muhammad and another (1983 SCMR 1064) and Fazal Baqi and another v. Rahmatullah (1995 MLD 303). He lastly prayed for allowing instant petition and setting aside the impugned orders.
12. On the other hand, learned counsel for respondent No.1 contended that, as the petitioner has failed to comply with the tentative rent order passed by learned Controller, as such his defence was rightly struck off. He further contended that the Rent Controller while deciding the application under section 16(2) is not supposed to record evidence. He argued that the constitutional petition against the concurrent findings is not maintainable. In support of his contentions, learned counsel for respondent relied upon the cases reported as Safdar Ali through his LRs. and 3 others v. Muhammad Malik and 4 others (1995 CLC 1751), Province of Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC 01), Pakistan State Oil Company Limited v. Sultan Ahmed and 2 others (1997 MLD 3225), Mian Shabbir Ahmed and another v. Muhammad Iqbal and 5 others (1991 CLC 1830) and Illahi Bux and another v. Nisar Ahmed (2000 YLR 1414). He lastly prayed for dismissal of the petition and maintaining the impugned orders.
13. I have given due consideration to the arguments advanced by the learned counsel for the parties and have scanned the evidence and material on record.
14. In the instant case learned Rent Controller, on the application of respondent No.1 under section 16(1) of S.R.P.O., 1979, after providing full opportunity to the opponent/petitioner passed order thereby directing the petitioner to deposit the arrears of rent as well as future monthly rent. Said order was not complied with, consequently the respondent moved an application under section 16(2), S.R.P.O., 1979 praying therein for striking off defence of the Petitioner. Such application was allowed after due notice to the petitioner and entertaining and hearing his objections. It may be observed that the provisions of section 16(2) are mandatory in nature. Subsection (2) of section 16 of S.R.P.O., 1979 provides that: "where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put into possession of the premises" (Emphasis supplied).
In the instant case, the petitioner has not denied non-compliance, of the said order, however, his plea is that as he is the absolute owner of the premises in question and that there is no relationship of landlord and tenant between the parties, therefore, there was no question of depositing the arrears of the rent or future monthly rent.
It appears that this point has already been settled by the apex Court. In this respect reference may be made to the case of Iqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242) wherein it was held by Honourable Supreme Court as follows:
"Be that as it may, in some recent judgments this Court has taken the view that the case like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/ tenant cannot be allowed to retain the possession during the litigation where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in the occupation and fight the litigation for long time, even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord."
In this connection reference can also be made to the cases of Abdul Rasheed v. Maqbool Ahmed and others (2011 SCMR 320), Muhammad Rafique v. Messrs Habib Bank Ltd. (1994 SCMR 1012), Mst. Bor Bibi and others v. Abdul Qadir and others (1996 SCMR 877) and Province of Punjab and another v. Mufti Abdul Ghani (PLD 1985 Supreme Court 1).
15. Besides, the Rent Controller is under no legal obligation to first frame and determine the issue regarding relationship of landlord and tenant between the parties before passing order on the application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 for striking off defence of the tenant on the ground of non-compliance of tentative rent order passed under section 16(1) of S.R.P.O., 1979. In the case of Mst. Zarina Khan v. Mst. Farzana Shoaib reported in 2017 SCMR 330, Honourable Supreme Court while dealing with this point held as under:
"We may observe that it is not a rule of thumb that wherever a person inducted in the rented premises subsequently denies his/her status as tenant, the Rent Controller is bound to first frame point for determination/issue to this effect and decide it before passing a rent order to secure the interest of the landlord during the pendency of such proceedings. More so, as such rent order will be tentative in nature and subject to final adjudication. The Rent Controller was, thus, fully justified in passing the rent order in terms of section 17(8) and consequent order of striking off the defence under section 17(9) of the Cantonments Rent Restriction Act, 1963, due to its admitted non-compliance."
In view of above, it can safely be held that the plea of the petitioner that as there was no relationship of landlord and tenant between the parties, therefore, the learned Rent Controller should have first framed and decided such issue and then he should have decided application under section 16(2) of S.R.P.O., 1979 moved by the respondent, is devoid of force.
16. As regards the plea of the petitioner that the respondent has filed the ejectment application in respect of Flat No.202 whereas the petitioner is in possession of Flat No.201 as such the ejectment application was liable to be dismissed, it seems that the same was a typographical mistake which has also clarified by the respondent in para 19 of the ejectment application which reads as under:
"19. That the Sublease of Flat No.402, 4th Floor has been executed in the name of applicant but the demised premises Flat No.201, 2nd Floor Plot bearing No.419 (E) situated at Block Nos. 7 and 8, C.P. Baras Society Karachi has certain mistaken in number of flat which was wrongly mentioned as Flat No. 202 instead of 201. The opponent advantage of above mentioned situated and stop to paying the rent to applicant. The said rectification has been clear in 28-3-2012."
In view of above, such plea of the petitioner has no legs to stand and is liable to be discarded from consideration.
17. Needless to emphasize that the jurisdiction conferred upon this Court under Article 199 of the Constitution is exercised in the aid of justice, it cannot be exercised for perpetuation of ill-gotten gains. In the circumstances, there appears to be no justification to exercise extra-ordinary constitutional jurisdiction of this Court for interfering with the impugned orders, as no perversity, infirmity, error of law, transgression of jurisdiction or lack of jurisdiction has been noticed or pointed out to warrant any interference and/or to declare the impugned orders to be illegal, invalid or coram non judice.
18. Apart from above, concurrent findings of facts given by two courts below cannot be interfered with by this Court in exercise of its constitutional jurisdiction. In the case of Mst. Farhat Jabeen reported in 2017 SCMR 1073 honourable Supreme Court held:
".........because interference in the findings of facts concurrently arrived at by the courts, should not be lightly made, merely for the reasons that another conclusion shall be possibly drawn, on the re-appraisal of the evidence, rather interference is restricted to the case of misreading and non-reading of material evidence which has bearing on the fate of the case."
In the case of Hafiz Shafatullah v. Mst. Shamim Jahan and another (PLD 2000 Karachi 502), it was observed as under:-
It has been held that by conferring only one right of appeal under section 27 of the Sindh Rented Premises Ordinance, 1979 the legislature in its wisdom seemed to have tried to shorten the span of litigation in rent cases and in such circumstances interference by this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution in judicial orders passed by the Tribunal of competent jurisdiction, merely on the ground that another view of the matter was also possible, would not serve any other purpose but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of statute.
In another case reported as Messrs Shamimi Akhtar v. State Life Insurance Corporation of Pakistan Karachi and 2 others (PLD 2005 Karachi 554), while discussing the scope of the constitutional petition in respect of rent matters it was held that: "the jurisdiction of this court under Article 199 of the Constitution is extra-ordinary in nature which is aimed at proper dispensation of justice and to avoid abuse of the process of law. Therefore, normally such jurisdiction is not to be exercised by the High Court to interfere with the discretionary orders of the subordinate Courts, where jurisdiction has been conferred upon it by some special statutes."
19. In view of aforesaid facts and legal position, see no material illegality, irregularity or jurisdictional error in the impugned judgments of two Courts below which could justify interference by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, instant petition is dismissed along with pending applications with no order as to cost. Accordingly, concurrent judgments dated 13.08.2016 and 20.05.2017 passed by learned IX-Rent Controller, Karachi East in Rent Case No.38/2014 and learned District Judge, Karachi East respectively are hereby maintained.
MQ/A-70/Sindh Petition dismissed.