Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Waseem Khan VS Respondent: Asim Hussain and 5 others
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: Waseem Khan vs Asim Hussain and 5 others Case No.: Constitutional Petition No. S-2117 of 2018 Date of Judgment:2019-11-20 Reported As: 2020 YLR 1886 Result: Petition dismissed
JUDGMENT
JUDGMENT AZIZ-UR-REHMAN, J.---Through the instant Constitutional Petition No.S-2117 of 2018, the Petitioner namely Waseem Khan son of Waheed Khan has called in question two [2] orders dated 11.10.2017 [Annexure 'E' to the MoP] and 08.08.2018 [Annexure 'G' to the MoP] whereby, the learned IInd Rent Controller, at Karachi-Central [Respondent No.5 herein], allowed the Ejectment Application in Rent Case No.324 of 2015 [Asim Hussain son of Muhammad Moin-ul-Haq and 3 others v. Farooq Khan son of Waheed Khan and another], which ejectment order of 11.10.2017, was later on maintained through the 'impugned order' dated 08.08.2018 [Annexure 'G' to the MoP], passed by learned District Judge, Karachi-Central [Respondent No.6 herein] in First Rent Appeal No.288 of 2018 [Waseem Khan v. Asim Hussain and others]. The prayers sought by the Petitioner herein [Tenant] in the instant Constitutional Petition reads, as follows:-- A. To set aside the impugned Exparte Eviction Order dated 11.10.2017, passed by the learned llnd Rent Controller at Karachi Central/Respondent # 5, in Rent Case # 324/2015; and the Impugned Judgment dated 08.08.2018 passed by the learned District Judge at Karachi Central/Respondent # 6 in First Rent Appeal # 288/2018; B. To dismiss the Eviction Application of the Respondents # 1 to 4 bearing Rent Case # 324/ 2015. C. To Award cost of the Petition, throughout; and D. Any other better relief, under the circumstances of the case. 2. The brief relevant facts giving rise to the filing of the above petition are that; Respondents Nos.1 to 4 [i] Asim Hussain son of Muhammad Moin-ul-Haq [ii].Tariq Ahmed Shah son of Rasheed Ahmed Shah [iii]. Pervaiz Ahmed Shah son of Rasheed Ahmed Shah [iv]. Muhammad Naseer Uddin son of Niaz Uddin, in their capacities as being 'landlords'/'owners' of a residential property bearing Plot No.2/412, measuring 90 sq.yds, Survey No.189, Sheet No. 17, Block-2, constructed on ground plus three [3] storeys, situated at Liaquatabad, Karachi,
---
## Page 2
filed an Application under section 15 Sindh Rented Premises Ordinance, 1979 [In short SRPO, 1979], bearing Rent Case No.324 of 2015 [Asim Hussain son of Muhammad Moin-ul-Haq and 3 others v. Farooq Khan son of Waheed Khan and another], before the Court of learned IInd Sr. Civil Judge and Rent Controller, Karachi- Central, with the following prayers: It is therefore prayed on behalf of the applicant above named that this Honourable Court may be pleased to pass an Order for Ejectment of the Opponent from the demised tenement i.e. half-portion at 2nd Floor of Building at Plot No.2/412, Liaquatabad, Karachi, with direction to hand over vacant and peaceful physical possession of the demised premises to the Attorney of Applicants as well as the Opponents also be directed to clear the arrears of unpaid arrear rent w.e.f. April, 2014 @ Rs.1,650/- total amounting to Rs.26,400/- (Rupees Twenty Six Thousand Four Hundred only) as well as the pay/clear the outstanding/unpaid utility bills up-to-date. 2. Cost of the application and such any other better relief(s) which this honourbale Court may deem fit and proper under the circumstances of instant Rent case be awarded/granted. 3. Per 'averments' made in the Ejectment Application under section 15 of Sindh Rented Premises Ordinance, 1979, Mr. Farooq Khan [Opponent No.1], was inducted as a Tenant, in respect of 'half-portion' at 2nd Floor of Building at Plot No.2/412, Liaquatabad, Karachi ['subject premises'], in terms of Tenancy Agreement dated 17.06.2003 [Exh. 'A/I '], executed between Sajid Ahmed Shah [Owner-Donor] and Farooq Khan [Opponent No.1-Tenant], where-under the initial monthly rent in respect of the 'subject premises' was mutually fixed at Rs.4,200/- [Rupees Four Thousand Two Hundred only], per month with 'advance'/ 'security deposit' in the sum of Rs.5,000/- [Rupee Fire Thousand only], excluding utility charges i.e. electricity and gas charges payable directly by the 'Opponent-Tenant' to the concerned authorities. 4. Later on, the aforesaid 'immovable property', earlier owned and belonging to Wajid Ahmed Shah [Donor], was gifted out, by the said owner in favour of the 4 Applicants [Donees-now owners] i.e. by virtue of 'Registered Gift Deed' dated 03.03.2005 [Exh. 'A/3']. The said previous owner namely Wajid Ahmed Shah, 'as averred', at the relevant time, had not only introduced the Tenant [Opponent No.1], but had also directed him to pay onward monthly rent to the Landlord No.1, namely Asim Hussain son of Muhammad Moin-ul-Haq, where-after, as 'asserted', in the Ejectment Application the said Opponent No.1, as per instructions of 'old owner'/' landlord' had started the payment of 'monthly rent' to Applicant No.1 namely Asim Hussain Shah son of Muhammad Moin-ul- Haq [Respondent No.1 herein]. 5. According to Applicants' 'version', in Rent Case No.324 of 2015 [Asim Hussain son of Moin-Ul-Haq and others v. Farooq Khan son of Waheed Khan and another], with the passage of time, the monthly rent in respect of 'subject premises' was gradually increased i.e. year after year upto Rs.1650/- per month. The 'monthly rent' lastly, paid for the month of March, 2014, by the Tenant Farooq Khan son of Waheed Khan [Opponent No.1], was/is in the sum of Rs.1650/-. The said Tenant, as 'asserted', later on, however, committed 'willful default' in payment of monthly rent i.e. April, 2014, onward's. The Applicant No.1, thereafter, time and again demanded the due payable rent in respect of 'subject premises', but to no avail. Besides, the tenant viz. Farooq Khan [Opponent No. 1], was not only remained a 'defaulter' but also sub-letted the 'tenement' to Opponent No.2 [Petitioner herein] and that too without any permission of the 'owners'/ 'landlords'. 6. Apart from, 'default', and 'sub-letting' of the 'subject premises' un-authorizedly by the said tenant namely Farooq Khan son of Waheed Khan, [Tenant], to one Waseem Khan, Petitioner herein . [Opponent No.2], the 'subject premises', as 'averred' in the Ejectment Application, was also required by Landlord No.1 in 'good faith' for the 'personal bona fide use' of Respondent No.1 herein [Applicant No.1-Landlord No.1]. Per 'averments', made in the Ejectment Application to this effect, the 'Opponents' namely [i]. Farooq Khan son of Waheed Khan and [ii]. Waseem Khan son of Waheed Khan [Petitioner herein], were also appraised/communicated about the personal bona fide need of the Applicant No.1, but they either failed and/or avoided in a calculated manner, to give any heed, even to this 'genuine' demand/request of the Applicant-landlord No.1 [Respondent No.1 herein]. 7. Per Ejectment Application, the Applicant-Landlord No.1 [Respondent No.1], had not only demanded 'monthly rent', time and again but had also approached the Petitioner herein [Opponent No.2], to whom the 'subject
---
## Page 3
premises' was sub-letted by the 'Opponent No.1' namely Farooq Khan son of Waheed Khan with same demand and request. The Petitioner herein [Opponent-Tenant], nevertheless, to avoid such request/demand somehow opted to file Civil Suit No.734 of 2015 [Waseem Khan son of Waheed Khan v. Asim-ul-Haq son of Moin-ul- Haq], before the Court of learned VIIth Civil Judge, Karachi, [Central], for 'permanent injunction' and with a further prayer for not to get the 'subject premises', vacated from the Petitioner herein [Plaintiff in Civil Suit No.734 of 2015], by Respondent No.1 herein [Applicant-Landlord No.1], without due course of law. The said suit, however, was later on, 'disposed of vide order dated 17.09.2015, passed by learned VIIth Civil 'Judge, Karachi [Central], as infructuous, however, with no order as to cost. Being relevant, order dated 17.09.2015, is reproduced herein-below: 17.09.2015. Plaintiff filed Civil Suit for Permanent Injunction praying for not to vacate rented premises forcibly, illegally without due course of law. Counsel for defendant submitted in writing on behalf of defendant wherein he stated that defendant has no intention to dispose the plaintiff illegally, unlawfully, without due course of Law and he filed RC No.324/2015 before learned IInd Rent Controller, District Central, Karachi. I have heard and perused the record. In view of statement of defendant, Civil Suit No.734/2015 is disposed of as infructuous, with no order as to costs." [Emphasis Supplied]. 8. According to landlords' version upon 'sub-letting' the tenement to the Opponent No.2 [Petitioner herein], the later while, residing in the 'subject premises' started to use 'electricity' through 'KUNDA SYSTEM', i.e. illegally and un-authorizedly. Needless to say, the electricity of the 'subject premises' was dis-connected due to 'non- payment' of bills which dues/the outstanding amount, at the time of filing of Rent Case No.324 of 2015, was/is in the sum of Rs.1,46,408.35/-, as per electricity bill Ex.'A/4'. Further, un-paid/outstanding amount/charges of KW&SB was/ is in the sum of Rs.5,992/- as per water bill Ex.'A/5'. 9. In view of the above, Respondents Nos. 1 to 4 herein [Applicants-Landlords], were constrained to file the 'Ejectment Application', under Section 15. of Sindh Rented Premises Ordinance, 1979, [In short SRPO, 1979] for eviction of the two 'OPPONENTS' i.e. [i] Farooq Khan son of Waheed Khan and [ii] Waseem Khan son of Waheed Khan [Petitioner herein], on the grounds of [i] 'default' [ii] 'sub-letting' of the 'subject premises' by Opponent No.1 to Opponent No.2 [Petitioner herein] and [iii] 'personal bona fide' need of Respondent No.1 herein [Applicant-Landlord No.1]. 10. Upon filing of the Rent Application under Section 15 of Sindh Rented Premises Ordinance, 1979, [Rent Case No.324 of 2015], the Notices/Summons thereof, were issued to the two [2] Opponents through 'bailiff', registered post A/D, and through the 'courier service'. On 15.12.2015, service upon the two [2] opponents was also 'held good' on the basis of pasting report of bailiff and 'publication' of court 'notice' in daily 'UMMAT' Karachi, dated 05.12.2015. Per record, the matter was then fixed for filing 'written statement[s] by the two [2] Opponents. As per record, after lapse of a 'sufficient time' the Opponents, however, not only failed to file any written statement but also remained absent. Resultantly, the two [2] Opponents were not only 'debarred' from the filing of 'written statements' but also they were declared as 'ex-parte' vide order dated 13.01.2016. 11. It is significant to note, that the Rent Case was filed on or about 28.07.2015 and service thereof, was 'held good' upon the two [2] Opponents [Tenants] therein, on 15.12.2015. Much before when the service was 'held good' upon the two [2] Opponents i.e. [i]. Farooq Khan son of Waheed Khan and [ii]. Waseem Khan son of Waheed Khan, the later i.e. Opponent No.2, it appears, besides filing Misc. Rent Case No.346 of 2014 [Waseem Khan son of Waheed Khan v. Asim-Ul-Haq son of Moin-Ul-Haq], sometime in March, 2014, before the Court of IInd Rent Controller, Karachi-Central [EVEN MISC. RENT CASE NO.324 OF 2014 HAS BEEN FILED AGAINST A WRONG PERSON] had also opted to file a Civil Suit No.324 of 2015 [Asim Hussain son of Moin- Ul-Haq and others v. Farooq Khan son of Waheed Khan and another], before the Court of learned IInd Sr. Civil Judge, Karachi-Central, IN MAY, 2014, for permanent injunction and with a further prayer that Plaintiff in Suit
---
## Page 4
No.734 of 2014/Opponent No.2 in the Rent Case No.324 of 2015 [Asim Hussain son of Moin-Ul-Haq and others v. Farooq Khan son of Waheed Khan and another], may not be ejected from the 'subject premises' without due course of law. The said Civil Suit No.734 of 2014, later-on, however, was 'disposed of as infructuous on 17.09.2015. 12. The present Petitioner herein [Opponent No.2], though was party to Rent Case No.324 of 2015 from the very inception of Rent Case, filed on 29.07.2015 [Asim Hussain son of Muhammad Moin-ul-Haq and 3 others v. Farooq Khan son of Waheed Khan and another], but Petitioner herein [Opponent No.2], in his 'own wisdom'/rather to say, with bad intention filed an Application under Order I, Rule 10, C.P.C., with a prayer that the Petitioner herein, [Opponent No.2] namely Waseem Khan son of Waheed Khan, be joined, as a party in the Rent Case No.324 of 2015, though in the Rent Case filed on 29.07.2015, he is admittedly Opponent No.2 and not an 'INTERVENOR', as alleged in the Application under Order I, Rule 10, C.P.C. Being relevant, 'Para-2', 'Para-3', 'Para-4' and 'Para-6' of the said Application under Order I, Rule 10, C.P.C., filed by the Opponent No.2, [WRONGLY CALLING HIMSELF THROUGH OUT IN THE APPLICATION AS AN INTERVENER UNDER ORDER I, RULE 10, C.P.C. LIKEWISE, IN SUIT NO.734 OF 2014, RESPONDENT NO.1 [LANDLORD NO.1], IS A DEFENDANT AND NOT OPPONENT NO.1, NAMELY FAROOQ KHAN AS ALLEGED, IN THE PARA BELOW], are reproduced herein below:- Para-2. That the Intervener had acquired the Demised Premises from its Owner Mr. Wajid Ahmed Shah. During his lifetime, the said Mr. Wajid Ahmed Shah had introduced the Opponent #1, as his Grandson and had directed him to pay future rent to him which instructions the Intervener followed. Para-3. That in the year 2014, the said Mr. Wajid Ahmed Shah expired at Karachi. After some period of time, the Opponent No.1, started to visit the Intervener with demand to vacate the Suit Property as early as possible. The Intervener when inquired into the matter and asked reason for doing so, the Opponent # 1 became annoyed and left the scene by extending threats of dire consequence. Later, the Opponent # 1 asked the Intervener to vacate the Demised Premises within stipulated period or be ready for his forcible dispossession. Being aggrieved, the Intervener filed a Civil Suit No. 734/2014 for the relief of Permanent Injunction so also started to deposit the monthly rent in M.R.C. # 346/2014 before the learned IInd Rent Controller, Karachi-Central. Para-4. That during the proceedings of the Civil Suit # 734/2015 [Asim Hussain son of Moin-Ul-Haq and others v. Farooq Khan son of Waheed Khan and another], the Opponent # 1, on 17.09.2015, filed a Statement before the learned VIITH Civil Judge at Karachi Central that he will not dispossess the Intervener without due course of law. Upon such Statement, the learned Civil Judge disposed of the Civil Suit of the Intervener. Para-6. That it would not be out of place to mention here that the Intervener is in physical and bona fide possession of the Demises Premises which fact has been admitted by the Opponent # 1 in the Civil Suit # 734/2014, yet the present Ejectment Application has been filed against one Farooq Khan, who neither is the tenant of the Demised Premises nor is in possession thereof. [Emphasis Supplied]. 13. In RESPONSE to the aforesaid application under Order I, Rule 10, C.P.C., a detailed 'counter affidavit' of the Attorney of the Applicants'- landlors' [Respondents Nos.1 to 4 herein], was filed wherein, the 'adverse allegations' levelled by the Petitioner herein [Opponent No.2], were specifically denied/controverted. 'Para-2', 'Para-6' and 'Para-8' therefrom, being relevant are reproduced herein below:- Para-3. That I say that the contents of application under reply as whole are misleading and misconceived just to create confusion in the mind of this Hon'ble Court otherwise, the intervener was already impleaded in the present proceedings by making him party as opponent No.2, which is clearly mentioned in the title of my ejectment application-available on record. Para-6. That I say that contents of Para-3 of under reply application, partly not denied being matter of record and partly is denied being misleading and misconceived and it is submitted that it was clearly mentioned in my statement filed in the Civil Suit No.734/ 2014 that I already have filed before competent Court of law a Rent Case bearing No.324/2015 for ejectment of Opponents-including the alleged intervener. Para-8. That the contents of paras Nos.5 and 6 of under reply application are false, frivolous and misleading story of interveners crafty mind, otherwise fact is that in my statement filed the said Civil Suit No.734/2015, I had
---
## Page 5
clearly stated that a Rent Case No.324/2014 has already been filed for ejectment of Opponents and on the (sic) of my such statement said civil Suit was disposed off. It is further submitted that the [with] mala fide intention and ulterior motives of the alleged and so-called intervener are floating on the face of under reply application, for lingering on the rent proceedings unnecessarily the alleged and so-called intervener moved under reply application, whereas he already was party as Opponent No.2 in this matter, so instead of filing under reply application, ought to file his written statement in this case. 14. It is worth to mention herein that Civil Suit No.734 of 2015 [Waseem Khan son of Waheed Khan v. Asim-ul- Haq son of Moin-ul-Haq], was in fact filed by the Opponent No.2 [Petitioner herein] against the Respondent No.1 [Landlord No.1], and not against the Opponent No.1, namely Farooq Khan son of Waheed Khan. In the Application under Order I, Rule 10, C.P.C., the Petitioner [Opponent No.2], perhaps with a view to create confusion, Respondent No.1 [Landlord No.1], has wrongly been referred to as an Opponent No.1 instead of Landlord No.1 [Respondent No.1 herein]. The material part of statement dated 09.09.2015, filed on behalf of the Defendant [who is Respondent No.1 herein-Landlord No.1], namely, Asim Hussain, in Civil Suit No.734 of 2015 [Waseem Khan son of Waheed Khan v. Asim-ul-Haq son of Moin-ul-Haq], reads as follows: 'STATEMENT' "It is stated on behalf of the Defendant above named that the defendant will not eject the Plaintiff from the demised premises without due course of law and this Hon'ble Court may be pleased to direct the Plaintiff to appear in Rent Case No.324 of 2015 filed by the Applicant/ Defendant before the Court of IInd Rent Controller, Central and disposed of this case in the interest of justice. [Emphasis supplied] 15. On 18.05.2016, when the aforesaid Rent Case No.324 of 2015 [Asim Hussain son of Muhammad Moin-ul- Haq and 3 others v. Farooq Khan son of Waheed Khan and another], came-up before the Court of learned IInd Senior Civil Judge/Rent Controller, Karachi [Central], then, the Application under Order I, Rule 10, C.P.C., filed by the Petitioner herein [Opponent No.2], was dismissed. For ready reference 'relevant part' of order dated 18.05.2016, is reproduced herein below: I have heard both the advocates for the parties and perused the contents of this application as well as counter affidavit filed by the learned advocate of the applicant and statement filed by the learned advocate for the defendant in Civil Suit No.734/2014 Waseem Khan v. Asimul Haq, it appears that the intervener is already party in this suit as opponent No.2 and the statement shows that the learned advocate for the defendant submitted in his statement that the defendant will not eject plaintiff from the demised premises without due course of law and this Hon'ble Court may be pleased to direct the plaintiff to appear in rent case No.324/2015 filed by the applicant/defendant before the Court of learned find Rent Controller, Karachi-Central. Since the intervener is already party in this rent case and he has knowledge about the pendency of this rent case, therefore, this application hearing no merits and the same is hereby rejected, with no order as to cost. [Emphasis Supplied]. 16. On dismissal of the Application under Order I, Rule C.P.C., the Petitioner herein [Opponent No.2], there- after, filed a 'REVIEW APPLICATION' of Order dated 18.05.2016, whereby, the Petitioner's [Opponent No.2's] Application under Order I, Rule 10, C.P.C., was dismissed but the said 'Review Application' was also dismissed on 02.12.2016, by learned IInd Rent Controller, Karachi-Central. The 'relevant portion' therefrom, reads as follows:- "I have heard the both advocate for the parties and perused the record it appears that the intervener is already party in the above rent case as opponent No.2. The bailiff reports of dated 03.08.2015 and 09.11.2015 are shows that the notice of this court has been served upon the intervener/Opponent No.2 Waseem Khan in presence of the witnesses. The intervener himself filed the Civil Suit No.734/2014 against the applicant before the learned 7th Civil Judge Karachi Central on dated 09.09.2015 in which clearly mentioned that the defendant will not eject the plaintiff from the demise premises without due course of law and this court may be pleased to direct the plaintiff to appear in rent case No.324/2015 filed by the applicant/defendant before the' court of 2nd Rent Controller central Karachi and dispose off this case in the interest of justice, on such statement of the applicant learned 7th Civil Judge, Karachi central dispose off the Civil Suit No.734/2015 as infructuous vide his
---
## Page 6
order dated 17.09.2015. Since the intervener is already made party in this case by the applicant and he has fully knowledge about the pendency of this rent case and this court already passed the order on 18.05.2016 after hearing the both parties and considering all the records of the intervener and hearing of the learned advocate for the intervener, there is no any other ground is mention in this review application therefore the same is rejected with no order as to cost." [Emphasis supplied]. 17. Pursuant to the 'ex parte order' dated 13.01.2016, the Applicants, Respondents Nos.1 to 4's herein [Landlords'] witness filed 'Affidavit-in-Ex-parte proof sometime in the month of February, 2016 through their 'General Attorney', namely Muhammad Yousuf son of Ismail on 12.12.2016 [Exh: Al, who thereafter, had alsb come forward/ stepped into the 'witness box' for recording his 'Examination-in-Chief' on 16.02.2016. In the 'Examination-in-Chief', the facts 'averred'/'narrated'/ deposed in the Ejectment Application were affirmed/reiterated by the said witness by way of producing his 'Affidavit-in-Ex-parte proof' as Exh.'A'. Besides, the said witness also produced other relevant documents i.e. Gift Deed as Exh.'A/3', K-Electric Bill as Exh.'A/4', Notice issued by K-Electric as Exh.'A/5', Bill of KW&SB as Exh.'A/6', in support of the Applicants/Landlord's stand/version. For ready reference the 'Examination-in-Chief' of Respondents' Nos.1 to 4 [Landlords'] witness is reproduced herein below:-- 16.02.2016 Rent Case No.324/2015 Muhammad Yousuf Further examination in chief to Mr. Muhammad Hanif Qureshi Advocate for the applicant I am applicant and attorney of all the applicants in this matter and filed my affidavit in evidence as Ex.A, which is true and correct to, the best of my knowledge, I produce the copy of copy of tenancy agreement as Ex.A/1, copy of registered General power of attorney as Ex.A/2, copy of gift Deed as Ex. A/3, copy of K-Electric bill as Ex.A/4, copy of notice issued by K-Electric to me as Ex.A/5, copy of bill of KW&SB as Ex.A/6, original of which seen and returned. Cross of applicant declared as nil as the opponent has already declared as ex-parte vide order dated 13.01.2016. 18. Upon declaring both the opponents debarred from filing their 'written statements' through 'EX PARTE ORDER' dated 13.01.2016, and recording evidence of the Applicants' [Landlords'] witness/General Attorney, viz. Muhammad Yousuf son of Ismail, the Rent Case No.324 of 2015 [Asim Hussain son of Moin-Ul-Haq and others v. Farooq Khan son of Waheed Khan and another]. Both the OPPONENTS, however, as per their wish chosen to remain away/absent from the proceedings of the Rent Case No.324* of 2015, 'ex-facie' in the their own wisdom. The learned IInd Sr. Civil Judge and Rent Controller, Karachi, [Central], in view of the relevant record and evidence/materials available on record, found the Opponent No.1 as having acted in violation of the 'terms' and 'conditions' of 'Tenancy Agreement' [Exh.'A/1'], as well as, against the provision of Sindh Rented Premises Ordinance by sub-letting the 'tenement' ['subject premises'] to the Opponent No.2 [Petitioner herein]. Besides, the Opponent No.2 [Petitioner herein], was not only found in 'willful default' of the monthly rent in respect of the subject premises, but also in 'default' of payment of utility bills [See Exh.'A/4' and Exh.'A/5.]. As per 'averments'/'deposition' / 'evidence', available on record, the 'subject premises' was also found to be requited in good faith, by the Applicant No.1 [Landlord No.1], namely Asim Hussain son of Moin-Ul-Haq. Further, as per record, the payment of arrears of monthly rent was flately refused in the 1st week of July 2015, as well as, the vacation…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.