RIASAT ALI Versus IV-ADDITIONAL DISTRICT AND SESSIONS JUDGE

RASHEED AHMED SOOMRO, J.--- This petition is directed against the concurrent findings of two Courts below vide judgment dated 14-1-2015 and order dated 20-1-8-2014 passed by learned respondents Nos.1 and 2 respectively.

2. The brief facts giving rise to this petition are that the respondent No.3 is the owner of double storeyed building on Plot No.21 Sector 11-D, New Karachi, whereas the petitioner is his tenant in respect of ground floor thereof (Hereinafter called to as the demised premises) as per Tenancy Agreement dated 4-12-2003.

3. The respondent No. 3 had filed ejectment case against the petitioner on the ground of default in payment of monthly rent and utility bills.

4. The petitioner filed written statement and denied the relationship of landlord and tenant between the parties on the basis of alleged sale agreement dated 26-03-2006.

5. The respondent No. 3 along with his ejectment application had also filed an application under section 16 (1) S.R.P.O. 1979, which was allowed by respondent No.2 vide order dated 28-05-2014, directing the petitioner to deposit the arrears of 36 months' rent w.e.f. June 2011 @ Rs.3000/- per month amounting to Rs.1,08,000/-, within one month and the future monthly rent w.e.f June 2014 onwards in advance at the same rate but the petitioner has failed to comply, with the above tentative rent order compelling the respondent No. 3 to file application under section 16 (2) of S.R.P.O. 1979.

6. The respondent No. 2 upon the report of Nazir has struck off petitioner's defense vide ejectment order 20-08-2014, directing the petitioner to vacate the demised premises and to handover its vacant physical possession to the respondent No. 3.

7. The petitioner being aggrieved and dissatisfied, with the above ejectment order has preferred F.R.A. No. 85/14 before the learned respondent No. 1 but failed to satisfy non-compliance of tentative rent order, hence the said appeal was also dismissed vide judgment impugned in this petition.

8. Heard both the learned counsel for the parties at length.

9. The learned petitioner's counsel has argued that the learned rent controller has wrongly held the relationship of landlord and tenant between the parties.

10. He next argued that the learned appellate Court has also wrongly maintained the order of learned rent controller and failed to appreciate that petitioner has committed no default in payment of rent in compliance of clause 'b' of loan agreement dated 28-05-2004 and that there was no relationship of landlord and tenant in the light of sale agreement 22-03-2006.

11. He next argued that the learned Courts below had also did not consider and discuss the fact that respondent No. 3 had earlier filed two rent cases on the same ground and on the same cause of action and both the cases were dismissed.

12. According to learned counsel, the learned lower Court also did not consider the loan agreement dated 28-05-2004, whereby the petitioner was exempted from paying further rent to respondent No. 3 till final payment of loan amount. He further pointed out that respondent No.3 has failed to return the loan amount and then executed sale agreement dated 22-03-2006 in respect of property in question; therefore, relationship of landlord and tenant seized to exist between the parties.

13. It is asserted that the petitioner also filed suit for specific performance of contract, which was dismissed.

14. On the other hand, the learned counsel for respondent No. 3 has contended that the relationship of landlord and tenant between the parties has already been decided in favour of respondent No. 3 by the learned rent controller in R.C. No. 565/07, which order has attained the finality. He next asserted that the loan amount has already been returned and this fact has been admitted by petitioner during the course of his cross-examination. He argued that suit No.198/08 filed by petitioner was dismissed on 24-12-2014, where after its Appeal No.39/13 also dismissed by learned III-Addl. District Judge, Karachi Central on 5-11-2015. According to learned counsel, the petitioner received Rs.2,50,000 from respondent No.3 on 17-10-2005 through bank cheques and Rs.2,10,000/- is returnable to the respondent No.3. According to him alleged sale agreement dated 25-03-2006 was cancelled on 04-05-2006. It is stated that the petitioner during the course of his cross-examination has categorically admitted about cancellation of both sale and loan agreements. It is argued that not only the suit of petitioner was dismissed but its appeal was also dismissed on 05-11-2015. He lastly argued that the mortgage property cannot be sold out; therefore, alleged sale agreement has lost its legality.

15. I have considered the arguments advanced by both the learned counsel for the parties and have also gone through the entire material placed before me and have also carefully perused the pleadings and evidence of parties.

16. To decide the real controversy between petitioner and respondent No.3 is that the petitioner advanced loan to respondents No.3 and then entered in to sale agreement, therefore, petitioner challenged the relationship of landlord and tenant between parties but record shows relationship has already been decided in previous rent case No.565/07, which order has attained the finality as it was never challenged by the petitioner.

17. Further petitioner's suit No.198/08 for specific performance of contract was dismissed.

18. Thus admittedly the petitioner is the tenant of respondent No.3 and it is also an admitted fact that the learned respondent No.2 has passed the tentative rent order dated 28-05-2014, directing the petitioner to desposit the arrears of rent, within one month and that the petitioner has failed to comply with the said lawful order, without any just cause or reason by taking the plea that he is not the tenant of respondent No. 3, without producing any valid evidence to this effect.

19. Now the question arises as to why the petitioner failed to obey the tentative rent order of learned rent controller by not depositing the arrears of rent, within the time fixed by the learned rent controller, without any lawful reason and the petitioner has failed to satisfy this important aspect of the case. As such admittedly the petitioner become a willful defaulter and as such the learned rent controller has rightly struck his defense under section 16(2) S.R.P.O. 1979, which order was also rightly upheld by learned 1st appellate Court.

20. As far as loan agreement is concerned, admittedly the respondent No. 3 has already returned the said amount to the petitioner through cheques.

21. As far as sale agreement is concerned legally it is a void document for the reason that admittedly the property in question was mortgaged at the time of execution of alleged sale agreement and under the law mortgaged property cannot be sold out as held in case law cited in PLD 1967 Dacca 243, therefore, sale agreement a void document and its clauses are not binding upon the parties. Further there is no clause in the said sale agreement, with regard to seizing of tenancy agreement, which is still intact. With the result, the petitioner is bona fide tenant of respondent No. 3 and he is bound to pay the rent to respondent No. 3, which he intentionally failed to tender in spite of lawful order of the learned rent controller.

22. However, there is no bar in filling 2nd rent case, if 1st one was dismissed. The landlord can file rent case at any time, if comes, within the ambit of section 15 of S.R.P.O., 1979.

23. The upshot of above discussion is that since the petitioner is tenant of respondent No. 3 and that he has failed to obey the lawful order of learned rent controller by not depositing the arrears of rent as per Nazir's report, therefore, his defense was rightly struck off by learned rent controller. Thus both the impugned judgment dated 14.01.2015 and order dated 20.08.2014 do not call for any interference by this Court.

24. I rely upon the case law cited in 2012 YLR 438, 2011 SCMR 290 and 2011 SCMR 320 and hold that the order of learned rent controller is based upon available record, which cannot be termed as, without jurisdiction or coram non judice. With the result and in view of above observations/ discussion, the impugned judgment dated 14.01.2015, passed by learned respondent No. 1 and order dated 20.08.2014, passed by learned respondent No. 2 requires no interference by this Court and the same are hereby maintained. Consequently, the instant petition merits no consideration and is hereby dismissed. However, the parties are left to bear their own costs.

ZC/R-2/Sindh Petition dismissed.