TAHIR HUSSAIN MALIK vs Mst. NAJMA RAFI

ORDER

' MUHAMMAD MUNIR KHAN, J.---This petition arises from the facts that on 31-5-1988, Mst. Najma Rafi respondent filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) for the ejectment of Ghulam Hussain Malik (since dead)/father of Tahir Hussain Malik petitioner, from House No,R-30, Block 9, Federal 'B' Area, Karachi, before the Rent Controller/Senior Civil Judge, Karachi, on the ground of default in payment of rent and requirement for personal bona fide use. The petition was resisted. The relationship of landlord and tenant was denied by the father of the petitioner. Instead, plea of ownership of the house through purchase from Mst. Sajida Mehkri by sale agreement was raised. The parties led evidence in proof and disproof of their claim and case. The Rent Controller allowed the ejectment application on 28-2-1993 on the ground of default in payment of rent. The appeal filed by the petitioner against the order of his eviction was dismissed by the High Court of Sindh at Karachi on 2-6-1994.

2. Learned counsel for the petitioner has argued that no relationship of landlord and tenant exists between the parties; the impugned order suffers from misreading/non-reading of the evidence; finding given by the High Court in the earlier round of litigation in F.R.A. No,583/1987 to the effect that the relationship of landlord and tenant existed between the parties was not binding on the Rent Controller and the High Court in the second round of litigation, because the finding given in the earlier round of litigation with regard to the existence of relationship of landlord and tenant between the parties could not operate as res judicata under section 11 of the C.P.C.

' Learned counsel appearing for the respondent has supported the impugned judgment.

3. Admittedly, Mst. Sajida Mehkri was landlady and Ghulam Hussain Malik the father of the petitioner was tenant under her. The house was sold by her to Mst. Najma Rafi respondent for Rs,70,000 vide registered sale-deed. After the purchase of the house, the respondent gave notice under section 18 of the Ordinance to the father of the petitioner/tenant, intimating the change of ownership. Neither the father of the petitioner, nor after the death of his father, the petitioner, has paid any rent to the respondent since 24-5-1982. The execution of the sale deed by Mst. Sajida Mehkri in favour of the respondent is not denied before us. The question of relationship of landlady and tenant between the parties stood concluded by the order passed by the High Court on 3-4- 1988 in F.RA. No,583 of 1987. By virtue of the registered sale deed the ownership vested in the respondent. The father of the petitioner and the petitioner claimed ownership of the house and pleaded justification for not paying the rent to the petitioner on the strength of an unregistered agreement to sell. It is well settled that the registered sale deed has always precedence and preference over the prior unregistered agreement to sell. The respondent being successor-in- interest of the original landlord had stepped into the shoes of the previous landlady and after the issuance of notice under section 18 of the Ordinance was entitled to receive the rent from the petitioner and the petitioner/tenant was obliged to pay the rent to her. By not paying the rent to the respondent, the petitioner has rendered himself liable to eviction. The learned counsel has not been able to point out any misreading of the evidence by the High Court. The High Court has not flouted any provision of law and has also not disregarded any case-law relevant to the facts of this case. The High Court has rightly appreciated the evidence and has come to a right conclusion not warranting any interference by this Court.

4. The upshot of the above discussion is that there being no merit, leave to appeal is refused and the petition is dismissed.