2018 CLCN 46

MUHAMMAD NASEEM-UL-HAQ Versus Mst. FARHAT JAMEELA

Citation2018 CLCN 46

CourtSindh High Court

Judge(s)Adnan-ul-Karim Memon

ORDER

ADNAN-UL-KARIM MEMON, J.--- In the captioned Petition, the Petitioner has impugned Order dated 29.11.2016 passed by the learned Rent Controller-IXth, Karachi, East in Rent Case No. 171 of 2004, whereby an Application under section 12(2), C.P.C. filed by the Petitioner was dismissed.

2. Brief facts of the case are that the Petitioner filed Application under section 12(2), C.P.C. read with section 19 of Sindh Rented Premises Ordinance, 1979, Order XXI, Rule 99 and section 151, C.P.C. on 04.09.2014 before learned IXth Rent Controller, Karachi, East in Rent Case No. 171 of 2004. Petitioner claimed that he is lawful owner and landlord of rented premises that is, Shop No.1 constructed on Plot No.C- 243.C.C. Area, situated at Block-2, PECHS, Karachi (subject premises). According to the Petitioner, the subject premises was gifted to him by his father vide Gift Deed dated 24.06.1997. Thereafter, on 17.12.2013 the subject premises was rented out to one Aleem Akhter, son of Mohammad Ameen (tenant) who is in continuous possession of the same and is paying the rent regularly to the Petitioner. Per Petitioner the other portion of the subject premises is in possession of the Petitioner since its Gift to him by his father and he is enjoying the same. It is further added by the Petitioner that the decree holder namely Mst. Farhat Jameela while concealing the real facts fabricated a story and instituted rent case against one fake person namely Saeedullah Jan (tenant). Petitioner further added that there was no such person nor he ever occupied the subject premises as tenant. He further added that no notice was ever served upon the tenant (Saeedullah) since filing of the rent case nor pasting was made at the subject premises. Petitioner further states that he came to know about the pendency of the above rent case and execution application when bailiff of this court came to the subject premises with Order to evict the tenant there from. He further added that the tenant (Aleem Akhtar) is regularly paying the electricity charges and doing the business continuously at the subject premises. He additionally said that decree holder namely Mst. Farhat Jameela in connivance with above said Saeedullah Jan have committed fraud with the Petitioner as well as the Court by filing false and bogus rent case. And, through concealment of facts and misrepresentation managed eviction order despite the fact that she was never in possession of the subject premises. He further added that the final Order dated 23.4.2011 passed by the learned IXth Rent Controller, Karachi, East in Rent Case No. 171 of 2004 as well as all subsequent orders obtained by the above named decree holder are outcome of concealment of facts and commission of fraud with the Court. He further asserted that the above said decree holder had no title documents and he is in possession of all documents of subject premises and is lawful owner and landlord of the subject premises. Therefore, the Order dated 23.4.2011 and all subsequent proceedings are nullity in the eyes of law. He lastly argued that since property rights of the Petitioner pertaining to subject premises were at stake, therefore, he filed Application under section 12(2), C.P.C. in the court of learned IXth Rent Controller, Karachi, East but, the same relief was declined to him vide impugned Order dated 29.11.2016. Thereafter, he being aggrieved by and dissatisfied with the impugned order has approached this Court and prayer for setting aside of impugned order and other orders passed by the learned IXth Rent Controller, Karachi, East.

3. Mr. Ali Raza Hashmi, learned counsel for the Petitioner has contended that the Petitioner is landlord/owner of the subject premises. He further added that the subject premises was originally allotted and leased in the name of Shaikh Ikramullah on 04.12.1958, thereafter the same was executed through sale deed in favour of his wife namely Begum Bismillah Khanum on 31.08.1961; She sold out the subject premises to the father of Petitioner Mohammad Sami-ul-Haq on 15.04.1972; that the subject premises was gifted to the Petitioner by his father on 24.06.1997; that 17.12.2013 the subject property was rented to one Aleem Akhter, son of Mohammad Ameen who is in occupation of the same and is regularly paying rent to the Petitioner; that the alleged Decree Holder/Applicant namely Mst. Farhat Jameela has nothing to do with the subject premises; She is neither owner nor is in possession of the property in question. Therefore, in connivance with one Saeedullah Jan she filed Rent Case No. 171 of 2004 and obtained the eviction Order dated 23.4.2011 from the learned IXth Rent Controller, Karachi, East through misrepresentation of facts and by playing fraud with the Court. Resultantly, the entire proceedings in the above said Rent Case are nullity in the eyes of law. He next added that the Petitioner when came to know about the said fraud committed by the Applicant with the Court, filed an Application under section 12(2), C.P.C. for setting aside of Order dated 23.4.2011 but, could not succeed and the said application was dismissed vide impugned Order dated 29.11.2016 passed by learned IXth Rent Controller, Karachi, East. Per learned counsel property rights of the Petitioner are involved in the present matter therefore, prayed for setting aside of the impugned Orders dated 23.4.2011, 30.8.2014 and 29.11.2016 passed by learned IXth Rent Controller, Karachi, East. Upon query of this court regarding maintainability of the instant petition, the learned counsel argued that the learned Rent Controller has no jurisdiction to entertain the rent proceedings in absence of real landlord that is, Petitioner and not Decree Holder/Applicant (Mst. Farhat Jameela). Therefore, Petitioner agitated his claim before the learned Rent Controller but his claim was wrongly discarded without appreciation of the real facts. Hence, this Court has jurisdiction to entertain the instant Petition.

4. I have heard the learned counsel for the Petitioner and perused the material available on record.

5. Perusal of record shows that the learned Rent Controller after recording evidence of the parties, allowed the Rent Case vide Order dated 23.4.2011 with directions to the opponent namely Saeedullah Jan to vacate the subject premises within 30 days. Decree Holder/Applicant (Mst. Farhat Jameela) filed Execution Application in which writ of possession was issued. Record further shows that after passing of more than 3 years and 4 months from the date of passing of Eviction Order that is, 23.04.2011 the Petitioner impugned said Order dated 23.04.2011 by filing Application under section 12(2), C.P.C. before the learned Rent Controller on 4.9.2014 on the ground that he is owner of the subject premises and the Decree Holder/Applicant (Mst. Farhat Jameela) has no concern with the subject premises. Learned Rent Controller after hearing the parties framed preliminary issue that is, whether the Order dated, 23.4.2011 was obtained through fraud or misrepresentation? Petitioner; examined himself and produced certain documents. In rebuttal, Decree Holder/Applicant (Mst. Farhat Jameela) examined herself. She produced Sale Agreement dated 12.3.1996 at Exh.D/1, Newspaper snippet dated 27.1.2000 at Exh. DH/2, Irrevocable General Power of Attorney at Exh.DH/3, Newspaper snippet dated 13.3.1996 at Exh.DH/4, Deed of Relinquishment dated 22.12.1998 at Exh.DH/5 and Sale Deed at Exh.DH/6. After recording evidence of the parties on the above quoted issue, the learned Rent Controller dismissed the application of the Petitioner by giving the finding that the Petitioner failed to prove his case regarding ownership of the subject premises.

6. Record reflects that in the rent proceedings prior to filing of Application under section 12(2), C.P.C. by the Petitioner the relationship of landlord and tenant between Mst. Farhat Jameela (Decree Holder/Applicant) and Saeedullah (Opponent/Tenant) was established through evidence. On the other hand, Petitioner failed to produce rent receipt(s) or counter folio in support of his contention that he was receiving rent of the subject premises as landlord from one tenant namely Aleem Akhtar since 6 to 7 years. Thereafter, rent proceedings ended in eviction of the said Opponent/Saeedullah.

7. Record further shows that Opponent/Saeedullah preferred Rent Appeal against the Eviction Order dated 23.4.2011 which was dismissed. Therefore, misrepresentation and fraud alleged to have been played by the Applicant/Decree Holder with the Court is not proved.

8. After thorough scrutiny of the record as discussed above I am of the view that the Petitioner has failed to prove his ownership and possession of the subject premises before the learned Rent controller whereas, Decree Holder/Applicant has proved her case through evidence. Therefore, at this juncture this Court cannot give findings as to the genuineness or otherwise of the documents with respect to title of subject premises in the absence of element of mis-reading and non-reading of evidence.

9. I am fortified by the view that in rent matters Constitutional Jurisdiction of this Court is limited and confined only to ascertain whether the Appellate Court has flouted the statute or failed to follow the law relating thereto? In the instant case, neither there is any jurisdictional error nor any perversity, illegality or infirmity in the orders passed by the learned Rent Controller. Besides, I do not see misreading or non-reading of evidence which could warrant interference of this Court.

10. In the light of facts, circumstances and law mentioned above the instant Constitution Petition is dismissed along with pending application(s).

11. Forgoing are the reasons of short order dated 11.07.2017, whereby the instant petition was dismissed along with listed applications.

MQ/M-3/Sindh Petition dismissed.