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Official Citation: 2024 SHC 1283
Court / Jurisdiction: Sindh High Court
Petitioner: Const. P. 431/2024 (S.B.) Sindh High Court, Circuit at Hyderabad - Muhammad Majid (Petitioner)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 1283. In this matter between Const. P. 431/2024 (S.B.) Sindh High Court, Circuit at Hyderabad - Muhammad Majid (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. 431/2024 (S.B.) Sindh High Court, Circuit at Hyderabad CITATION: 2025 SHC HYD 1283 PARTIES: Muhammad Majid (Petitioner) ORDER DATE: 06-FEB-25 BENCH: Hon'ble Mr. Justice Muhammad Hasan (Akber)(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD C.P. No.S-431of 2024 Petitioner: Muhammad Majid, M/s Abdul Malik Shaikh and Jahanzeb Laghari Advocates. Respondent: Mst. Bano, through Mr. Muhammad Kamran Qureshi Advocate. Date of hearing: 06.02.2025
Date of Decision: 06.02.2025
J U D G M E N T
MUHAMMAD HASAN (AKBER), J.- The Judgment dated 05.08.2024 passed by learned Model Civil Appellate Court -II /6th Additional District Judge, Hyderabad passed in First Rent Appeal No.01 of 2024 filed by the petitioner has been assailed in this petition under Article 199 of the Constitution of Pakistan, 1973. The said appeal was preferred against the Order dated 02.12.2023 passed by learned 8th Senior Civil Judge & Rent Controller Hyderabad in Rent Application No.20 of 2022 ( Mst. Bano v. Muhammad Majid) whereby, ejectment application filed by the respondent/ applicant was allowed on the ground s of, default in payment of rent & personal bona fide need, and the petitioner was directed to vacate the demised premises. 2. Brief history of the case is that the respondent / applicant filed application under Section 15 of the Sindh Rent Premises Ordinance 1979 (‘SRPO’) seeking ejectment of the petitioner/ opponent from shop on ground floor constructed on Plot No.36 situated at Zulfiqar Colony , Jamia Cloth Market Unit No.8 Latifabad, Hyderabad (‘demised premises’). It was alleged that applicant’s husband Muhammad Boota was the owner/ landlord of the said property, whereas the opponent was tenant , against monthly rent of Rs.600/-, which was enhanced by the deceased from time to time and at present, the monthly rent of demised premises was Rs.7000/-. Upon demise of Muhammad Boota (‘deceased’) on 16.06.2016, his widow / respondent became landlady of the demised premises. The respondent claim ed that the tenant has defaulted in payment of monthly rent for the last 66 months, since expiry of her husband, whereafter she continuously approached the petitioner and insisted him to pay monthly rent amount or to vacate the rented premises for her personal bona fide use, who always kept her on false hopes . The
2 respondent, through her counsel also served a legal notice dated 21.12.2021 upon the petitioner for payment of monthly rent and to vacate the rented premises on the ground of default and personal need, but to no avail. Finally, respondent filed ejectment application No.20 of 2022 with the following prayers: “a). Pass an order directing the opponent to put the applicant in the p eaceful physical possession of the rented premises viz. Ground Floor Shop Constructed on Plot No.36 situated at Zulfiqar Colony Jamiya Cloth Market Unit No.8 Latifabad Hyderabad on the ground of willful default and personal bona fide use and need for her son for the business purpose in good faith and in case of failure to do so any officer or Nazir of this Honourable Court be appointed to act accordingly. b). Direct to opponent pay to monthly rent @ 7000/Per month for the period of last three years which total amounting to Rs.2,52,000/- and future rent at the same rate till the vacation of the physical possession of the rented shop to the applicant. c). Cost of this rent application be borne by the opponent. d). Any other relief which this Honourable Court deems fit and proper.”
3. All the above allegations were denied by the petitioner in his written statement, along with denial of the landlord-tenant relationship between the parties. The learned trail Court framed the following points for determination: i). Whether the Rent Ejectment Application filed by the Applicant is not maintainable under the law? ii). Whether the Opponent has committed default in payment of monthly rent from 16.06.2016 to D ecember 2021? If so, whether he is liable to be evicted from the rented premises in question on the ground of default in payment of rent? iii). Whether the rented premises are required to the applicant for her personal use? iv). Whether the Opponent obtained Shop No.36, situated at Zulfiqar Colony Unit 08 Latifabad on pagri basis in the month of July 1997 from Muhammad Boota husband of the applicant against a sum of Rs. 120,000/-? v). What should the order be? 4. After a full -dressed trial, the learned Rent Controller allowed the ejectment application vide Order dated 02.12.2023, which was assailed in the
3 First Rent Appeal No.01 of 2024, which also upheld the Order of the Rent Controller, hence this petition was preferred. 5. The learned counsel for petitioner argued that the Courts below did not consider the points raised in the written statement and the evidence; that the learned Courts wrongly decided the point of maintainability; that the Rent Controller was not qualified to be a Rent Controller; that the Rent Controller did not have the jurisdiction to decide the dispute between the petitioner and the respondent; there was no tenancy between the parties , since mandatory requirements under section 5, SRPO were not complied with; that there was no landlord -tenant relationship between the parties and application under section 15, SRPO was not maintainable; that the petitioner had no knowledge about the death of Muhammad Boota since no notice under section 18 , SRPO was served upon him; that the Courts did not consider that Miscellaneous Rent Application No.50 of 2022 ( MRA) was duly filed by petitioner under section 10 , SRPO and rent was deposited therein; that the learned Courts did not consider that the petitioner was regularly paying rent to the deceased husband of the respondent; the Courts also did not consider that there was a practice of receiving periodic rent by the deceased husband of the respondent; that the Courts did not call relevant witnesses as required under SRPO; that the Courts did not consider and apply the ‘Iqrarnama Barai Malba Pagri’ dated 07.07.1997 (‘Iqrarnama’) executed between the petitioner and the deceased husband of respondent whereby valuable rights in the subject property were created in favour of petitioner; that no willful default was committed by the petitioner; and that the respondent failed to prove her personal bona fide need in good faith. It was finally prayed that the impugned Orders be set-aside and instant petition be allowed. 6. Conversely, learned counsel for the respondent pleaded that the instant petition is not maintainable; that filing of writ petitions in rent cases has been discouraged in a large number of decisions by superior Courts of Pakistan; that the present petition is not an appeal and therefore concurrent findings of fact given by two Courts below cannot be reversed on the premise that a different view could be taken of the same evidence; that no agreement named Iqrarnama was executed between the parties which is a fake and fabricated document; that the pleas taken by the petitioner are clearly hit by the principles of ‘approbate and reprobate’; t hat the petitioner cannot be allowed to blow hot -and-cold at the same time; that the petitioner was fully aware about the demise of the owner/ landlord; that the Orders impugned are legal, valid and have been passed as per material made available on record ;
4 that the petitioner is estopped from challenging the ownership of the respondent after demise of her husband; that the respondent brought sufficient material to prove her case and the ejectment application was rightly allowed on the ground of default in payment of rent and personal bona fide need, and therefore, it was prayed that the instant petition be dismissed with costs. 7. Heard both sides in detail , minutely perused the material available on record and considered the factual and legal pleas raised from both sides . With respect to the first challenge to the maintainability of the rent application due to alleged lack of competence of the learned Rent Controller by the petitioner, it has been settled long ago that proceedings before Rent Controller are quasi-judicial in nature ,1 and the learned Civil Judges are empowered to function as Rent Controllers being only ' persona designata ', which could not be equated to exercise powers of Civil Court.2 Furthermore, a party could only raise such objection during the proceedings before the Rent Controller, and not thereafter.3 The argument is also unacceptable being against the doctrine of ‘approbate and reprobate’ (discussed in detail at para 12 of this Judgment) because on one hand, the petitioner fully pa rticipated in proceedings before the rent controller without any such objection, so also in appeal, and so also in the memo of this petition, but such an objection could not be allowed to be raised at this stage of hearing of this petition. The plea that t here was a different counsel for petitioner in the proceedings below, would not be a valid ground to raise this objection at this stage. The objection, being untenable, is therefore, rejected. 8. The second objection raised by the petitioner was the non- maintainability of rent application due to absence of any written tenancy agreement between the parties, as required under section 5 , SRPO , which provides that: 5. (1) The agreement by which a landlord lets out any premises to a tenant shall be in wri ting and if such agreement is not compulsorily registerable under any law for the time being in force, it shall be attested by, signing by, and sealing with the seal of, the Controller within whose jurisdiction the premises is situate or, any Civil Judge or First Class Magistrate.
______________________________________________________________ 1. 2009 YLR 1024 ‘Mehran Distributors V. UBL & others’ 2. 1987 CLC 1109 ‘Boolchand v. Muhammad Bachal’ 3. 1998 CLC 1987 ‘Mehboob Ahmad v. State Life Insurance Corp. Pakistan’
5 (2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registerable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registerable, th e original deed duly attested under sub - section (1), shall be produced and accepted in proof of the relationship of the landlord and tenant:
Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Ordinance.”
9. It may be noted that although section 5 clearly enjoins the existence of an agreement in writing, but the language used in the provision makes it directory in nature and not mandatory ,4 and in this regard, the earlier view was not concurred. Providing a method for execution of tenancy agreement under section 5 , with an object to avoid any doubt or ambiguity in execution thereof, neither means that oral tenancy is prohibited under the Ordinance , nor the jurisdict ion of the rent controllers have been barred in cases of oral tenancy agreements. 5 Therefore, once a tenancy is admitted between the parties and acted upon, the parties would be estopped from raising objections as to its legality. Even with r egards to the requirement of countersigning of the rent agreement by the respective Rent Controller or the Area Magistrate, the rule is that in the absence of any penalty, such an agreement at the most could be called as irregular, but cannot be declared as illegal.6 Lastly, mere non-production of a rent agreement in terms of section 5 SRPO could not be made a valid ground to dismiss an ejectment application , as the landlord- tenant relationship can be proved through other means as well, as provided under the law.7 The petitioner is again faced with the same situation of approbating and reprobating his stance because on one hand, he dienes the relationship but on the other hand, he was admittedly claiming to make payment of rent directly to the deceased and also to the respondent husband and later depositing rent in Court. Lastly, this argument was also raised by petitioner’s counsel for the first time during course of hearing of this petition . Such objection to lack of landlord -tenant relationship based upon absence of a written tenancy agreement, being untenable in view of the above detailed discussion and the legal position, is therefore rejected.
______________________________________________________________ 4. 1994 SCMR 1102 ‘Faiz Sons vs. Hakim Sons (Impex) Pvt. Ltd.; 1999 MLD 2137 ‘Sharfuddin v. Riazuddin’; 1992 SCMR 46 ‘Hakim Ali vs Muhammad Salim’ 5. 2002 CLC 256 ‘Muhammad Younus v. Irfanullah Khan’ 6. 1999 CLC 2088 ‘Farrukh Jamal v. Iqbal Ahmad’ 7. 1994 SCMR 1485 ‘Fariddudin v. Mahboob Ali’
6 10. The third argument pleaded by the petitioner ’s counsel was that, after the demise of the original landlord, notice under section 18 , SRPO was not served by the opponent/ widow upon the petitioner and therefore no default could be attributed to him. On this point as well, it is surprising to note that on one hand, the petitioner claims lack of notice , whereas on the other hand he himself admittedly claims to have paid rent to the respondent regularly (which though is denied by the respondent) . It has also been claimed by the petitioner that after receipt of rent for many years, when the respondent refused the money order, Miscellaneous Rent Application No.50 of 2022 was filed. Such argument is again self-contradictory to the other pleas raised by the petitioner, because the petitioner himself admits and claims paying rent to the widow of the original landlord upon his demise. The rule is that w hen the tenant was cognizant of the death of landlord and he also knew the persons entitled to receive the rent, then he is bound to pay rent to his successors-in- interest, failing which, he could be held a defaulter. 8 Even if the case of the petitioner was th at he was regularly paying rent to the respondent, then his act of suddenly depositing the same in the miscellaneous rent application 50/2022 was not justified. Looking at the precedence on this point, where a tenant was paying rent to the landlord but suddenly shifts to depositing rent in Court in miscellaneous rent application 50/2022 in the name of previous owner, the same was declared as harassment to the landlord and the tenant was ordered to be evicted.9 Likewise, in a case where the tenant received the knowledge of change of ownership but instead of making enquiry about the title, started depositing rent in Court in the name of previous owners , such conduct was declared as causing harassment to the new landlady, for she would not be able even to withdraw the rent deposited in Court by the tenant. The conduct of such a tenant challenging the gift deed as illegal in favour of the new landlady, was held as contumacious and amounted to causing harassment to the landlady and such default w as not even treated as a technical default.10 In a case where tenant had the knowledge about death of original landlord, he was required to tender rent to legal representatives of deceased and his d epositing rent in Court in the name of original landlord, was not considered as valid tender of rent. 11 Refusal by landlord to receive rent is yet another relevant factor which is required to be proved by the tenant, and in the absence of any such proof, conduct of the tenant was
______________________________________________________________ 8. 2001 SCMR 1140 ‘Pakistan State Oil Company Ltd. v. Muhammad Naqi’ 9. 1997 SCMR 945 ‘Fazal Elahi v. Gul Khan Ahmad Qureshi’
7 considered contumacious and harassing towards the landlord.12 Direct deposit of rent in Court , without first tendering the same to landlord, was treated as willful default and the same was not accepted even as a technical default.13 The e xpressions used in section 10 of the Ordinance viz, "in advance", "monthly rent payable in advance" and "rent payable every month in advance" have already been defined by the Supreme Court .14 In view of the above discussion, considering the principles and rules in respect of section 10 SRPO, the contradictory pleas raised by the petitioner, and the admitted claim by the petitioner that he was paying rent after the demise of the deceased, this objection raised by the petitioner, also stands rejected. 11. The fourth argument raised by the petit ioner was that , for filing application under section 15, SRPO, the respondent was first required to establish her ownership on the demised premises by producing title documents of the property in her name. The petitioner’s counsel is again faced with the question of inventing new pleas at this late stage, so also, of approbating and reprobating i.e. adopting self-contradictory stances. The said objection is neither reflected in any of the pleadings before the two Courts below, nor in the memo of this petition. Secondly, the petitioner was legally estopped from raising such plea and from demanding of title documents of his landlady. No sooner a notice is served upon the tenant under section 18 about the new owner of the pr operty, or it was otherwise conveyed to him either in the judicial proceedings or by some other reliable source, the tenant was bound to accept the new owner as his landlord. 15 Thirdly, in his cross examination, the petitioner himself admitted that: “It is correct to suggest that husband of the applicant was owner/landlord of the demised premises”. Thus, by virtue of petitioner’s admission, the status of the respondent falls section 2(f) of the SRPO, as “landlord”. Although the petitioner has objected to th e ejectment application, but he also admits himself as tenant, and therefore, the status of the petitioner rightly falls within the definition of “tenant” under section 2(g) of the SRPO-1979.
______________________________________________________________ 10. 1995 SCMR 204 ‘Abdul Malik v. Qaiser Jehan’ 11. PLD 1996 Karachi 357 ‘Zubaida Begum v. Muhammad Muslim’ 12. 2006 SCMR 1872 ‘Muhammad Asif Khan v. Shaikh Israr’ 13. 2006 SCMR 1501 ‘Mst. Yasmeen Khan v. Abdul Qadir’ 14. 1992 SCMR 2400 ‘Shezan Limited v. Abdul Ghaffar’ 15. 2001 SCMR 679 ‘Habib Bank Ltd. v. Sultan Ahmad’ ; 1995 SCMR 1407 ‘Tahir Hussain Malik v. Najma Rafi’
8 12. The plea of denial of landlord-tenant relationship is therefore untenable and falls within the mischief of the doctrine of approbate and reprobate. The petitioner cannot be allowed to blow hot and cold in the same breath. The doctrine of approbation and re probation, is derived from the maxim " qui approbate non reprobate " (one who approbates cannot reprobate) 16, which is defined in the Halsbury’s Laws of England, Vol. XIII, page 464, para 512 as a specie of the principle of estoppel: “On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking ad vantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it”.
13. The phrases, approbate and reprobate are borrowed from the Scottish law and would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. It is a principle of equity, coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants, cannot be allowed to do so while enjoying the fruits from the same document. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument , while questioning the same. Such a party has , either to affirm or to disaffirm the transaction.17 The doctrine is not confined to instruments only. A person cannot s ay at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.
14. In the context of tenancy laws in Pakistan , the principle is that no person can be allowed to reprobate in the same breath while admitting tenancy on one hand, and setting up the plea of non -maintainability of application for ejectment challenging title of the landlord on the other.18
______________________________________________________________ 16. 2017 CLD 397 ‘Naeem Zafar Industries V. Bank of Punjab’ 17. ‘Ker v. Wauchope’ [(1819) 1 Bli 1, 21]; Douglas -Menzies v. Umphelby [(1908) AC 224, 232]
9 Hence, the conduct of a tenant to deviate from the agreed terms of the agreement would amount to approbation and reprobation, which was not permitted in law and equity. 19 On the same principle, a party was not allowed to raise the plea of limitation and claiming the proceedings to be time barred.20 The objection to jurisdiction was also not allowed to be raised by a party having participated before a forum without raising such an objection, under the principles of estoppel and waiver.21 Nor was a party allowed to object to a particular course, once it has taken advantage under the same arrangement.22 The Court also did not allow vendees to challenge title of their vendors after purchasing the share of minors through their uncles as vendors.23 Nor did it allow to challenge the constitutionality of a forum which was chosen by the same party himself, 24 nor allowed to raise a point before Supreme Court which was specifically gi ven up before the High Court; 25 or to allow to take a self -contradictory stance in respect of the same transaction. 26 Even in a case where a public authority claimed earlier that the subject land could not be allotted to anyone in view of the public intere sts, such authority was not allowed to change its stance in an abrupt and arbitrary manner and allot the same to a stranger, without notice to persons likely to be affected by such action. 27 The principle is that one could not be permitted to Approbate and Reprobate to the detriment of the opponent. 28 The same principles have been consistently followed in a large number of cases by Courts in Pakistan. 29 The Indian Supreme Court describes it in the following words: 30 “15. A party cannot be permitted to “blo w hot-blow cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, howe ver, it must not be applied in such a manner so as to violate the principles of what is right and of good conscience.”
______________________________________________________________ 18. 1992 SCMR 1290 ‘Home Comforts V. Rashid Baig’ 19. 1991 MLD 1755 ‘Ghulam Rasul V. Tauheed Akhtar’ 20. PLD 2003 SC 242 ‘Muhammad Waris V. Province of Punjab’ 21. ibid 22. 2001 MLD 431 ‘Nasir V. Hakim -Ud-Din, Managing Director, Jahangir Engineering Company, Gujranwala’ 24. PLD 1987 SC 107 ‘A.R. Khan v. P.N. Boga’ 23. 1992 SCMR 1457 ‘Sultan V. Abdullah Khan’ 24. 2001 SCMR 1959 ‘Federation of Pakistan V. Amir Hamza’ 25. 1992 CLC 1966 ‘Muhammad Rasheed Khan V. Sajawal Khan’ 26. 2007 SCMR 569 ‘Overseas Pakistanis Foundation v. Sqn. Ldr. R Syed Mukhtar Ali’
10 15. In view of the above discussion, considering the principles and rules in respect of approbation and reprobation and the contradictory pleas raised by the petitioner, this objection raised by the petitioner, also stands rejected. For removal of doubts, the above principles would fully apply to all the incidences in this Judgment wherever the petitioner’s instances of approbation and reprobation have been discussed. 16. The petitioner’s fifth objection was the absence of landlord…
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