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Official Citation: Const. P. 77/2024 (SHC)
Court / Jurisdiction: Sindh High Court
Petitioner: Const. P. 77/2024 (S.B.) Sindh High Court, Circuit at Larkana - Muhammad Ali Shaikh (Petitioner)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as Const. P. 77/2024 (SHC). In this matter between Const. P. 77/2024 (S.B.) Sindh High Court, Circuit at Larkana - Muhammad Ali Shaikh (Petitioner) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Const. P. 77/2024 (S.B.) Sindh High Court, Circuit at Larkana CITATION: 2024 SHC LAR 64 PARTIES: Muhammad Ali Shaikh (Petitioner) ORDER DATE: 08-MAY-24 BENCH: Hon'ble Mr. Justice Muhammad Saleem Jessar(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
C.P No. S-348 of 2023 C.P No. S-77 of 2024
Petitioner Muhammad Ali : through Mr. Ghulam Dastagir A. in C.P No.S-348 of 2023 Shahani, Advocate
Petitioner Muhammad Ali : through Mr. Abdul Rehman A. in C.P No.S-77 of 2024 Bhutto, Advocate
Respondent No.1 Ali Gohar : through Mr. Zameer Ali Shah, in both petitions Advocate
Official Respondents : through Mr. Abdul Waris Bhutto, in both petitions Assistant Advocate General, Sindh
Dates of hearing : 22.03.2024, 05.04.2024 & 19.04.2024
Date of Judgment : 08.05.2024
Date of Announcement : 13.05.2024
J U D G M E N T
Muhammad Saleem Jessar, J. - By this single judgment, l propose to dispose of captioned two constitution petitions as in both petitions subject matter, parties as well as factual and legal aspects of the cases are one and the same.
2. By means of C.P. No.S -348 of 2023, the petitione r Mohammad Ali Shaikh has challenged the Judgment dated 07.11.2023 passed by learned 1st Additional District Judge, Larkana in Rent Appeal No.09 of 2019 filed by the petitioner / tenant, whereby he has upheld the eviction order dated 15.05.2019 passed by 2 nd Senior Civil Judge / Rent Controller, Larkana in Rent Application No.09 of 2018 filed by Respondent No.1. C.P. No.S -77 of 2024 has been filed by same petitioner against the Order dated 09.02.2024 passed by VI-Additional District Judge, La rkana in Civil Revision Application No.30 of 2020, whereby he has dismissed the Revision Application filed by the
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petitioner / tenant and maintained Order dated 09.09.2020 passed by 2 nd Senior Civil Judge / Rent Controller, Larkana in Rent Execution Applic ation No.04 of 2019.
3. Brief facts of the case, relevant for the purpose of deciding these constitution petitions, are that respondent No.1 / applicant filed a Rent Application for ejectment of the petitioner stating therein that the father of applicant namely, Ali Nawaz Kanas ro, since deceased, was owner of Latif Shopping Center consisting about 30 shops at ground floor, and one residential house at upper storey, constructed on City Survey No. 1466/1 admeasuring an area of 595 Sq. Yards. The shops were rented out to various persons by him in his life time and he used to collect rent from the tenants. It was further averred that after death of applicant’s father, the entire property, being joint and undivided, was being looked after by applicant’s brother namely, Sher Muhammad, who also died in the year 1990, hence the property / building was looked after by his another brother namely, Javed Ahmed, who also died in the year 2006. It was further asserted that after death of Javed Ahmed property in question was divided amongst all legal heirs / co -sharers by means of a private family settlement, thus applicant being co -owner, acquired Shop No.27 along with other shops in Latif Shopping Center, Larkana being his inherited share in the property. It was further stated in the rent appli cation that the petitioner / opponent was rented out Shop No.27, who was using the same in the name and style of Ali Silk and Dulhan Shop in the Latif Shopping Center, Larkana and used to pay rent at the rate of Rs.6000/- per month under rent agreement wh ich expired in December, 2017. It was further averred that after expiry of rent agreement in the year 2017, applicant asked the tenant to execute fresh agreement and fix new rent amount in accordance with market value but he refused and stopped paying rent to the applicant. Inspite of repeated demands he failed to pay the rent, thus violated the relevant law and willfully defaulted to pay monthly rent from January 2018. It was furt her asserted that the applicant/landlord is an old and aged person having thr ee sons and eight daughters and all his sons are jobless, hence premises was also required for his personal bonafide need in order to establish his own business in the premises.
4. Upon service of notice, the petitioner / opponent filed written statement / reply stating therein that the father of applicant had given the
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shops to various persons on "Pagri" including the opponent / petitioner, who had paid pagri amount of Rs.200,000/- to the father of applicant. It was further stated that brother of the applicant namely, Sher Muhammad had died in 1990 and father of applicant expired in the year 2002 therefore it is impossible that brother of applicant could have looked after the property after death of late Ali Nawaz, as alleged in the rent application. It w as further asserted that the applicant has not succeeded in establishing that Shop No.27 was acquired by him for his personal bonafide need. It was further stated that with mutual consent of all legal heirs of late Ali Nawaz and all the shopkeepers / tenan ts of Latif Shopping Center and Mairaj Shopping Center including the opponent / petitioner, it was decided that son of the applicant namely, Sajjad Hussain, will collect the rent of all the shops in future and he will also look after all the issues in resp ect of rented premises and in this regard Sajjad Hussain in the month of June, 2012 had executed a fresh written tenancy agreement with all the tenants including the opponent / petitioner. As per contents of said agreement, no fresh agreement was required to be executed. It was further stated that said Sajjad Hussain, as per written agreement, used to collect monthly rent from all the tenants including opponent in respect of Shop No.27 till December, 2017 but in the month of January, 2018 he refused to rece ive the rent from all the tenants of Latif Shopping Center including the opponent / petitioner, as agreed, and he demanded excessive / enhanced monthly rent not only from the opponent but from all the tenants of Latif Shopping Center and Mairaj Shopping C enter. It was further stated that said Sajjad Hussain refused to receive rent from January, 2018 and upon his refusal, the opponent in good faith sent him monthly rent for the months of January, 2018 to April, 2018 separately through Money Orders but he al so refused to receive the same. Thereafter, all the tenants of Latif Shopping Center including the opponent / petitioner had jointly filed Miscellaneous Rent Application No.01/2018 for deposit of monthly rent before the concerned Rent Controller which was allowed vide Order dated 09 -5-2018, since then opponent / petitioner along with other tenants has been depositing monthly rent amount in the Court. He further stated that landlord Sajjad Hussain has also served legal notices through his advocate upon all the tenants of Latif Shopping Center including opponent / tenant of Shop No.27, which were replied through their counsel separately. He further stated that no default was committed by him in making payment of monthly rent and he has punctually
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and regularly been paying monthly rent of the demised shop as per terms and conditions of tenancy agreement. It was further averred that applicant has not served any notice regarding personal use of property and according to him, the applicant, in order to get the mon thly rent enhanced, has filed rent application. He further stated that applicant has recently let out 3 shops to other tenants and one shop is still vacant, therefore, if he requires any shop for his personal use, then he could have occupied the same. Thus , it is evident that he does not require the shop in question for his personal bonaide use. He further asserted that applicant has also not mentioned in rent application that which type of business he wants to start in the demised shop and for that purpose, which of his sons the shop is required, therefore application is not maintainable. Lastly, he prayed that the application under reply be dismissed with compensatory costs.
5. On pleadings of the parties, Rent Controller formulated following points for determination:
i. Whether the relationship of landlord and tenant exists between the parties in respect of shop in application? ii. Whether the opponent committed default in payment of monthly rent? iii. Whether the shop in application is required for personal bonafide use of applicant? iv. What should the order be?
6. After recording evidence of the parties, hearing the arguments of their advocates, Points No.1 to 3 were answered in affirmative i.e. in favour of applicant / respondent No.1 and ultimately ejectment application was allowed vide order dated 15.5.2019. The said order was challenged by the opponent by preferring above said First Rent Appeal (the Appeal). The appeal was decided vide order dated 30.0 9.2019, passed by III -Additional District Judge, Larkana on the basis of special oath but this Court, vide Order dated 02.03.2023 passed in CP No.S -856 of 2019 set aside said order and directed the Appellate Court to decide the matter on the basis of recor d. After remand, the appeal was proceeded to and ultimately the same was dismissed vide order dated 07.11.2023. The applicant / respondent No. 1 filed Rent Execution Application No. 04/2019 which was allowed vide Order dated 09.9.2020 and the Civil Revisio n Application filed against said order was dismissed vide order dated 09.02.2024. Instant two constitutional petitions have been filed against above said orders passed by the Courts below.
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7. I have heard learned counsel for the parties and have gone throu gh the material made available before me on the record.
8. Learned counsel for the petitioner submitted that the petitioner has committed no default in the payment of monthly rent as the landlord has admitted that the petitioner had paid monthly rent upto December 2017. However, after December, 2017, landlord refused to receive monthly rent, hence the petitioner sent rent amount to him through different money orders, receipts whereof are available at page No.107 and onward in Court File of CP No.S-348 of 2023. He next submitted that when the landlord refused to accept the rent sent through money orders, the petitioner and other tenants approached the Rent Controller by filing Misc. Rent Application which was allowed vide order dated 09.5.2018 available at page No.95 of Court File and on very next day viz. 10.05.2018, they had deposited the rent before the Rent Controller in MRC, hence the petitioner has not committed any default, therefore, the ground urged by the landlord in his application is no t much of consequence. As far as the ground of personal bonafide use, as claimed by the landlord, is concerned, the landlord has not specified as to for which of his legal heirs and for what purpose, he needs the premises, hence the Courts below without co nsidering this aspect of the case, have passed the impugned orders which are not in consonance with the facts of the case as well as evidence adduced by the parties. He, therefore, prayed for allowing the petition and setting aside the impugned orders.
8. As regards the plea of the landlord regarding payment of rent through money orders non -examination of Post Master, GPO, Larkana, he submitted that the same is not fatal to the case of the petitioner. According to him, it is a settled law that once the tenant has tendered the rent amount, he has fulfilled his job / duty, therefore, he cannot be termed to be defaulter. In support of his contentions, he placed reliance on the following cases:
i. Haji MUHAMMAD HANIF v. MOHSIN ALI (1997 MLD 2754). ii. CAPRI AUTOS MOTORCYCLE DEALERS V. Dr. MASUMA HASAN (2019 YLR 2500). iii. JIAND RAI V. ARJAN DAS and 3 others (2016 MLD 116) iv. Syed FAKHAR MEHMOOD GILLANI v. ABDUL GHAFOOR (1995 SCMR 96). v. HIRJIBHAI BEHRANA DAR -E-MEHER through Attorney v. Messrs BOMBAY STEEL WORKS, PARTNERSHIP FIRM, through Parner (2001 SCMR 1888)
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9. Learned counsel further submitted that after change of ownership the respondent had not issued any notice to the petitioner in terms of Section 18 of the SRPO and the Appellate Court has also not considered this aspect of the case. He further submitted that it is settled law that the burden of proving the default in payment of monthly rent by the tenant always lies upon the shoulders of the landlord and said burden has not been dis charged by the landlord. In support of his arguments, he placed reliance upon the judgment pronounced in the case of SUDHAGSHU BIMAL BISWAS V. MOHAMMAD MUSTAFA CHOWDHURY , reported in 1968 SCMR 213. He, therefore, submitted that Courts below have failed to appreciate legal aspects of the case, hence the impugned orders are liable to be set aside. He lastly prayed for allowing instant petitions.
10. Before arguing the case, learned counsel for respondent No.1 / landlord, submitted that it is second round of litigation and prior to this, the petitioner had filed CP No.S -856 of 2019 which was disposed of by order dated 02.3.2023, whereby case was remanded to the Appellate Court for deciding the same afresh, however, the petitioner has not disclosed this fact in the petition.
11. Learned counsel for respondent No.1 / landlord, while replying to the objections raised by the petitioner before the trial Court, referred to pages No.31, 61 and 69 of the Court File, and submitted that in view of clear admission on the part of the petitioner, collection of rent amount by Sajjad Hussain cannot be objected to, as the petitioners themselves had mutually agreed upon such collection. He further submitted that even if landlord had refused to receive the rent sent thr ough money orders, then, under the law, it was incumbent upon the petitioner / tenant to deposit the same in Court through MRC immediately, but the petitioner / tenant instead of doing so, had sent consecutive money orders in respect of the rent for the m onths of January, February, March and April, 2018, and then after committing default, he deposited the rent in Court through MRC in the month of May, 2018 , therefore, the petitioner committed willful default, hence the Courts below have rightly decided said point in favour of respondent No.1 / landlord.
12. As far as the ground of personal bonafide use is concerned, he submitted that once the landlord appears in the witness box and deposes
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regarding his personal bonafide need, then the same would be consi dered sufficient to hold that the landlord has established his claim, as such there is no illegality in the findings given by the Courts below vide impugned orders. In support of his contentions, he placed reliance upon the following decisions:
1. MUHAMMAD RIAZ SHAIKH and 2 others v. IFTIKHARUDDIN and 2 others (2014 CLC 1695), 2. Master Enterprises (PVT) LTD, through G.M. Administrator and Finance v. Additional District and Sessions Judge, Karachi South and 2 others (2012 CLC 1532). 3. RAZIA SULTANA V. MUHAMMAD HASAN KHAN and 9 others (1991 CLC 632).
13. As far as alleged Agreement / Qabooliat is concerned, learned counsel submitted that it was maneuvered by the petitioner mentioning therein that he had obtained the shop from the land lord on the basis of pagri which is alien to Rent Laws, therefore, such plea is liable to be discarded from consideration. In support, he relied upon the cases reported as MUHAMMAD AFZAL V. IIND ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others (PLD 2008 Karachi 189), SHAKEEL AHMED and another V. MOHAMMAD TARIQ FAROGH and others (2010 SCMR 1925) and IMAM DIN v. ABDUL KARIM and others (2000 MLD 2054). He also placed reliance upon an unreported Judgment dated 11.01.2023 passed by this Court in CP No.S-300 of 2021, (re: Qurban Ali Vs. Ali Gohar and others).
14. Learned counsel for the petitioner also referred to Subsection (3) to Section 10 of SRPO, 1979, and submitted that in case the monthly rent amount rendered by the tenant through money orders, is refused to be received b y the landlord, the same may be deposited in Court through MRC which was done by the petitioner. He further submitted that after such deposit, the nominee of the landlord has been collecting / withdrawing the amount which aspect has not been taken into consideration by the Courts below. In rebuttal, Mr. Zamir Ali Shah, learned counsel for respondent No.1, submitted that if landlord collects / withdraws the rent amount deposited by the tenant in Court through MRC, the same does not cause any harm to the cas e of the landlord. In this connection, he placed reliance upon the case reported as NIZAR NOOR and other v. AMEER ALI and others (2020 CLC 254).
15. Mr. Abdul Waris Bhutto, Assistant Advocate General, supported the impugned orders and opposed the petition.
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16. Mr. Abdul Rehman Bhutto, advocate for the petitioner in connected CP No.S-77 of 2024 was present before the Court in earlier part of the day, however, at the time of hearing of the petitions, he reportedly left the Court to pick up his children f rom school and his associate Mr. Mansoor Ali Bhutto, while adopting arguments advanced by Mr. Ghulam Dastgir A. Shahani, prayed for grant of petition and setting aside impugned orders.
17. In the first instance, I would like to deal with the plea raise d by the petitioner / tenant that there is no relationship of landlord and tenant between the parties. The petitioner / tenant in his evidence has admitted that the premises in question was rented out to him by father of the applicant / respondent No.1 nam ely, Ali Nawaz Kansaro. He also admitted in his cross - examination that Sajjad Hussain, to whom he was allegedly continuously paying the monthly rent till December, 2017, is the son of applicant Ali Goh ar. The petitioner has also admitted in the pleadings that he is tenant in respect of Shop No.27 of Latif Shopping Centre. He further admitted that Ali Nawaz was real owner of Latif Shopping Centre and that applicant Ali Gohar is son of Al i Nawaz Kanasro. He also admitted that with the consent of all legal heirs of Ali Nawaz, Sajjad Hussain, viz. son of the applicant, was authorized to receive the rent of the shops from all the tenants including the petitioner. He has not denied that Ali Gohar is the co -owner / co -sharer of Latif Shopping Centre. From above, it is clear that admittedly applicant Ali Gohar is one of the legal heirs of the original owner / landlord namely, Ali Nawaz, thus, he is co - owner of the premises in question. Needless to emphasize that n ow it is well settled that a co -owner is fully competent and authorized to collect the rent from the tenant and also to seek ejectment of the tenant. In this connection, reference may be made to the case of MUHAMMAD AZAM KHAN Vs. Dr. IQBAL HAMEED and 2 oth ers, reported in PLD 2021 Sindh 237 , wherein it was held as under:
“6. In the instant matter, such plea is even misconceived for simple reason that referred earlier proceedings were launched by father of the respondent/ applicant who, undeniably, is dead thereby making his legal heirs, including the respondent/applicant as one of the co - owner/co-sharer and other legal heirs have given no objections to the present landlord though legally, in the rent jurisdiction every co - owner has a right to agitate the p lea of personal bona fide need irrespective of fact that tenancy, created by other co -sharer because legally every co -sharer has his/her own circumstances hence legally shall have a right to establish the plea of personal bona fide need in respect of such premises. Reference may be made to Imran Qadir v.
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Roqiya Sultana and 7 others 2017 CLC Note 80 wherein it is observed as:-
"Any of the co -sharers may file a rent case against the tenant irrespective of the fact that some other co -sharers had inducted the tenant in the tenement . (Abdul Ghani v. Abrar Hussain 1999 SCMR 348 and Muhammad Hanif and others v. Muhammad Jameel and 5 others 2002 SCMR 429)."
18. In another case reported as MOHAMMAD AKRAM BHATTI Vs. ADDITIONAL DISTRICT JUDGE, ATTOCK and 3 others (2021 CLC 1405) , Honourable Rawalpidi Bench of Lahore High Court, held as under:
“Even if respondent No.4 as a co-owner inducted respondent No.3 as a tenant in the shop which was a joint -property, the respondent as tenant could not deny the right of the petitioner as co -owner and landlord of the property to receive rent or to seek eviction. In "Aftab Ahmed Saeed v. Faisal Shahzad and others" (2005 CLC 1668) it was observed to the effect that every co -owner is entitled to receive rent of the premises as la ndlord and if one co -owner has not let out the property, but some other co -owner or authorized person entitled to receive rent has, by legal fiction every co -owner of the property shall be deemed to be landlord and competent to maintain ejectment application on any ground available to him under the law and even without joining other co -owners as applicants if the ground of ejectment is otherwise available. Relevant excerpt of the judgment is as under:
"7. Reverting to the legal position, a bare reading of definition of word "landlord", given under section 2(t) of the Sindh Rented Premises Ordinance, 1979, makes it clear that besides person, who is authorized or entitled to receive rent of the premises, every co -owner of the premises is landlord. Thus, if o ne co -owner has not let out the property, but some other co -owner or authorized person entitled to receive rent has let out the property, by legal notion every co -owner of the property shall be deemed to be the landlord, and competent to maintain ejectment application on any ground available to him under section 14 or section 15 of the Sindh Rented Premises Ordinance, 1979, even without joining other co -owners as applicants, if otherwise such ground of ejectment is available to him.”
19. In view of above, the plea raised on behalf of the petitioner / tenant regarding relationship of landlord and tenant between the parties is misconceived hence, liable to be discarded.
20. Now, adverting to the issue of default in payment of monthly rent by the petitioner / tenant, it seems that the claim of respondent No.1 / applicant is that the petitioner / opponent has committed default in payment of monthly rent from January, 2018. It has been deposed on oath by respondent
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No.1 / landlord before the Rent Controlle r that he did not receive rent for the defaulted period from the petitioner / opponent. In his affidavit -in-evidence, so also during his cross examination the applicant / respondent No.1 deposed in categorical terms that the opponent / petitioner had commi tted default in payment of monthly rent from January, 2018. In such an eventuality, as per settled law, now the burden shifts upon the shoulders of the petitioner / tenant to prove that he had paid rent for the alleged period.
21. In this context, refere nce may be made to a decision given by a Full Bench of Honourable Supreme Court in the case of ALLAH DIN Vs. HABIB, reported in PLD 1982 SC 465, wherein it was held as under:
“It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him, as required by section 13 (2) (i) of the Sind Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the l andlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he ha d paid or tendered the rent for the period in question.”…
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