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Petitioner: Mst. ZAMRAD BEGUM and anather VS Respondent: MUHAMMAD RAFIQ CHOUDHARY and 2 JUDGMENT
Court Name: Sindh High Court Judge(s): Nadeem Akhtar, Aziz-ur-Rehman Title:Mst. ZAMRAD BEGUM and anather vs MUHAMMAD RAFIQ CHOUDHARY and 2
JUDGMENT
Reported As: 2017 CLC 1571 Result: Petition allowed Judgment JUDGMENT AZIZ-UR-REHMAN, J.--- By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed on 23rd December 2014, the Petitioners have sought the following reliefs:- " (a).To set-aside the decision of registration of FIR against the Petitioner No,2. (b)To set-aside the recovery of Rs,13,000/- (Rupees Thirteen Thousand only) under tenancy agreement, rent per month with amount of increment of 10% from June 2013, till implementation of the decision. (c)To declare to handover the peaceful possession of Shop No,3, of Plot No,158-C, measuring 264 Sq. feet of Building No,158-C, situated at Malir Cantt Bazar Area, Malir Cantt, Karachi to Respondent No,1, is without jurisdiction, violative, contrary to the Constitution of Pakistan. (d)To declare not to lodge FIR against the Petitioner No,2 and/or to take any coercive measure on the impugned decision of Respondent No,2, dated 11.11.2014, which is coram-non-judice. (e)Any other relief may be deem fit in the circumstances of the case. 2.The facts relevant for decision of the instant petition are that the Petitioner No,1 is the real owner of commercial property bearing No,158/C, measuring 120 Sq. Yards situated at Cantt, Bazar Area Malir Cantt.,Karachi; which immovable property was purchased by her from one Haji Muhammad Ashraf son of Abdul Ghani through his attorney viz. Naveed Arshad Ali Khan son of Arshad Ali Khan [Late], through Sub-Attorney Flight Lieutenant (Rtd.) Rao Muhammad Ayub Khan son of Rao Muhammad Idress Khan through Conveyance Deed of immovable property dated 25.02.2000, vide registration No,478 before Sub-Registrar T-Division III-A, Karachi MF. Roll No,U-5012-109 dated
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29.02.2000 [Annexure 'P/6' to the MoP]. The Petitioner No,1, was the widow of Late Major Matloob Ali Khan son of Hashmat Ali Khan, who was the brother of Petitioner No,2 viz. Liaquat Ali Baloch. Upon the death of late Major Matloob Ali Khan, the Petitioner No,2 herein, who is now DSP in Sindh Police got married with Petitioner No,l. 3.The Petitioner No,1 with a view to raise/construct a commercial building on the aforementioned immovable property submitted a 'building plan' for construction of three shops and two floors. The Building Plan was duly approved by the Malir Cantonment Board vide letter No,MLR/158/C, BA/2002/125, dated 13.09.2002 and thereafter, the landlady in her capacity as a lawful owner got constructed two floors and 3 shops including Shop bearing No,3, measuring an area of 12 + 22 (264 sq feet) on Plot No,158-C which was later on given, on 'rent basis' 'Pagri System' to Respondent No,1 at the rate of Rs,50/- per month. [Hereafter referred to as 'subject shop']. The Respondent No,1, consequently paid a sum of Rs,10,00,000/- [Rupees Ten Lacs only] to the owner / landlady [Petitioner No,1 herein] as a 'Pagri Amount'. For and in respect of such transaction an agreement of 'good will was also executed between the Petitioner No,1 and Respondent No,1 on 10.04.2004 [Annexure P/7 to the MoP]. The Respondent No,1, in his own wisdom however, not only avoided to pay the agreed rent to landlady but also sub-let the 'subject shop', having an area of 264 Sq. feet, situated on Plot No,1 158-C at Cantt. Bazar Area, Malir Cantt. Karachi to some one else, as the Respondent No,1 had then got job in USA. Besides, of not using the 'subject shop' taken on rent, the Respondent No,1 also failed and/or avoided to pay the electric/other utility bills in respect of the 'subject shop'. For and due to this reason, all the facilities were consequently disconnected by the concerned authorities. The disconnected facilities were later on restored with efforts of the Petitioner No,1 however, after payment of all the outstanding bills plus the imposed penalty charges. 4.M/s. Bank Al-Habib Limited, sometime in month of October, 2008 had approached Petitioner No,1, for taking the entire premises on rent including the rented out shop No,3. The 'subject shop', at the relevant time i,e, in October, 2008, it is needless to say, was in physical peaceful possession of the Respondent No,l's nominee/sub-lettee. The Petitioner No,1 landlady/owner of the building inter alia keeping in view the 'default in rent' and 'non-payment' of the liabilities bills, constrained to request the Respondent No,1, to get vacate the 'subject shop'. The Respondent No,1, thus voluntarily agreed to handover the vacant peaceful possession of the 'subject shop', through his authorized Estate Agent viz. Tahir Mehmood, however, subject to the condition that on the 'Pagri amount' of Rs,10,00,000/- [Rupees Ten Lacs only], having been paid by Respondent No,1/Tenant to the petitioner No,1, the later has to pay Rs,10,000/- [Rupees Ten Thousand only] per month, as 'interest', however, after deducting the amount of outstanding bills of utility[ies]. The agreed amount in the sum of Rs,10,000/- as demanded by the Respondent No,1 towards' interest/[alleged rent] however, was later on, increased from Rs,10,000/- to Rs,13,000/- [Rupees Thirteen Thousand only]. 5. Per demand of the Respondent No,1 and as mutually agreed between the parties, the Petitioner No,1, thereafter, paid to the ExTenant/Respondent No,1, the mutually agreed enhanced amount in the sum of Rs,13000/- [Rupees Thirteen Thousand only] through cheques bearing No,0058499-000 dated 03.02.2008, drawn at UBL Branch, Cantt Bazar, Malir Karachi. Besides, further amounts, at the agreed rate, were also paid/deposited through six Bank's receipts one each for Rs,13,000/- [Rupees Thirteen Thousand only] of different dates 09.12.2008, 16.01.2009, 21.05.2009, 21.05.2009, 21.05.2009, in the Bank is account of Respondent No,1 /tenant [copy of the aforesaid 'cheque' and six 'Banks' receipts' are also available on record [Annexures 'P/9 and 'P/11(a) to P/11(01. The Respondent No,1/ Tenant, despite of receiving such amounts however, after sometime, 'ex-facie' with mala fide intention and to pressurize, blackmail the Landlady/Petitioner No,1 and her husband/the Petitioner No,2, wrote a letter dated 23.02.2009 to the Bank Al-Habib/the new tenant of the Building including, the 'subject Shop No,3', alleging therein that Bank Al-Habib Limited, Karachi, Pakistan, has occupied
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the 'subject shop' un-authorizedly. The said letter was duly replied vide Bank's letter dated 24.03.2009, inter alia asking/advising the Respondent No,1 to get resolve his dispute with Petitioner No, l/owner of the Building viz, Mat. Zarmad Begum, through the competent Court of law if, still Respondent No,1, has any grievances in respect of the 'subject shop'. The aforesaid letter of the Respondent No,1 reads as follows: February 23, 2009 To the Chief Executive Officer: Al-Habib Bank Karachi Pakistan Subject: <u>Unauthorized occuupied the property shop No.3, building No,158-C Bazaar Area Malir Cam Karachi Pakistan.</u> Respected Sir, I am writing to inform you that the bank occupied the aforementioned shop without my authorization if bank have any kind of agreement with someone please provide me a copy of agreement immediately. Legal documents attached for ready reference, and proof. Early action required. With regards,
Sd/-
Mohammad Rafiq Chaudhary
1322 Chordonnay Way,
Livingston, Ca 95334 6.According to the Petitioner's version, Respondent No,1/the then tenant, in actual fact, is in a habit of filing false and fabricated complaints/applications, needless to say, with mala fide intention and obviously to cause disrespect, disrepute to the Petitioner No,2/husband of the Petitioner No,1 and/or otherwise, malign him in eyes of general public and Police Department and that too merely for the reason that the Petitioner No,2, is the husband of Petitioner No,1/owner of the building including the 'subject shop'. The I.G. Sindh, as averred in the Memo of Petition, on one of such Applications/Complaints ordered inquiry. Resultantly, ASI Sajjad Abbasi of PS Malir Cantt., in the process of inquiry also recorded the statement of Petitioner No,2. The I.G. Sindh, after inquiry, found the Petitioner No,2 as innocent and consequently. the Petitioner No,2 was exonerated from the charge 'inter alia' for the reason that the complaint pertains to a dispute of civil nature which under law, can only and properly be adjudicated upon by a Civil Court of competent jurisdiction. Likewise, another application/complaint was also made by Respondent No,1 to the Director General, F1A, indeed, with a mala fide intention and seemingly aimed to disrepute the Petitioner No,2 in the eyes of Police Department and its officials. The Director General, F1A, nonetheless, referred the matter to Additional Director General F1A, who upon conducting an inquiry also exonerated the Petitioner No,2 from the charges, leveled against him, by Respondent No, 1. 7.Apart from the above, daughter of Respondent No,1 viz. Bushra, it appears, had also made an application/complaint on behalf of her father to the Superior Judiciary against the Petitioner No,2, but according to these Petitioners, this time as well, upon inquiry, conducted by the FIA Department, the Petitioner No,2 was once again exonerated from the charges. Notwithstanding the above,
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Respondent No,1, herein once again in a drill to disrepute the Petitioner No,2, submitted an application/complaint against the Petitioners, ex facie, with a mala fide intention and ulterior motives to malign the Petitioners. The complaint dated 14.02.2013, lodged before the learned 'Ombudsman' Sindh at Karachi by respondent No,1, and as having been reproduced by the Ombudsman, Sindh at Karachi, in its' decision dated 11.11.2014, reads as follows: <i>"Subject:- <u>NON-REGISTRATION OF FIR AGAINST INSPECTOR LIAQUAT ALI KHAN BLOCH AND HIS WIFE WHO ALLEGEDLY ENCROACHED UPON SHOP OF THE COMPLAINANT REQUEST FOR REGISTRATION OF FIR AGAINST THEM ETC.</u> THE COMPLAINT Mr. Muhammad Rafiq Chaudhry. a resident of the United States of America,<u> in his complaint dated 14.02.2013, alleged that since November, 2008, an Inspector of Sindh Police namely Liaquat Ali Khan Baloch had been illegally occupying his Shop No,3, Building No,158-C, Bazar Area Malir Cantt. Karachi, he further alleged that the accused had leased out the said shop to Bank AL-Habib Limited.</u> On the contrary, Mst. Zamarud Begum, wife of the encroacher, had served upon him a legal notice through Embassy of Pakistan containing false information that he (the complainant came to Pakistan and handed over the possession of said shop to her (Zamarud Begum) on rent (Pagri System). He contested that he had not visited Pakistan during the last 3 years and story had been concocted. <u>He lamented that he had been trying to lodge an FIR against the accused police officer and his wife but to no success due to their influence. He therefore, solicited our intervention in the matter." </u>[Underlining is mine].</i> 8. The Provincial Ombudsman Sindh, at Kaiachi, after collecting necessary information from SSP District Malir, Karachi and recording statements of the complainant/ Respondent No,1 herein, the Estate Agent viz. Mr. Tahir Mehmood, and Petitioner No,2 [husband of the Petitioner No,1], came to the conclusion that the Petitioner No,2, had not only failed to follow the prescribed procedure bu(has also misused his official position in evicting the tenant from the 'subject shop', situated on Plot No,158-CC, measuring 120 Sq. Yards situated at Cantt. Bazar Area, Malir Cantt. Karachi. The provincial Ombudsman/Respondent No,2, consequently, given the 'impugned decision' dated 11.11.2004. Copy of the impugned decision was sent to Petitioners through a letter dated POS/476/KHE(B)/121/13/9135 dated 02.12.2014. For ready reference the 'operative part' of the 'impugned decision' is reproduced herein below:- <i><u>DECISION</u> "9. In view of the above, and in exercise of powers vested in me under section 11, Establishment of the Of of Ombudsman for the Province of Sindh Act, 1991, I hereby direct the Inspector General of Police, Sindh. (i)To get an FIR registered against DSP. Liaquat All Khan Baloch for fraud (Sec. 420, P. P. C.) trespass (Section 448, P. P. C.) and breach of (Section 405, P. P. C.). (ii)To recover from the DSP, Liaquat Ali Khan Baloch, the agreed rent of Rs,13,000/0 per month with annual increment of 10%, since June 2013 till implementation of the orders contained in paragraph (iii) of this decision. (iii)To direct the accused DSP to handover peaceful vacant possession of the shop in question to the complainant. (iv)Compliance be reported to me within 60 days hereof.</i> 9.The Petitioners herein, feeling aggrieved and dissatisfied with decision of the Ombudsman Sindh, at Karachi, have thus challenged the same by way of filing the instant Petition mainly on the ground that the Provincial Ombudsman/Respondent No,2 besides, having 'no jurisdiction' has passed the impugned decision which according to the Petitioners is not only against the law but also 'coram non judice' , as the Ombudsman Province of Sindh at Karachi, could not assume and/or otherwise, can exercise jurisdiction viz-a-viz a dispute of 'civil nature' between the private
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parties which on the face of record is beyond the jurisdiction of Respondent No,2/Provincial Ombudsman. 10.Upon filing of the above Petition, when the same came-up before the Court on 24.12.2014 then while, issuing notice to the Respondents and Advocate General Sindh, the operation of the impugned decision dated 11.11.2014 [Annexure 'P/1' to the MoP] was suspended/stayed. The relevant part of order dated 24.12.2014 for ready reference is also reproduced here-in-below:- "3&4).<i> Learned counsel for the Petitioners contends that Petitioner No,1 is the legal and lawful owner of the property bearing No,158-C measurin: 120 S Yards consisting: upon three shops<u> and two floors, Malir Cantonment Board, Karachi vide registered conveyance deed dated 25.02.2000, photocopy of the same is enclosed as Annexure 'P/6' at page-43 along with MoP. </u>Learned counsel for the Petitioner contends that Petitioner No,1 rented out shop No,3 of the subject building to Respondent No,1 vide agreement dated 10.04.2004 executed between the Petitioner No,) and Respondent No,1, <u>However, Respondent No,1 shifted to USA and not paying the rent as agreed between the Petitioner No,1 and Respondent No,1 as per agreement referred to above. Therefore, Petitioner No,2 and Respondent No,1 agreed the vacation of the aforesaid shop on the condition that the petitioner will pay Rs,13,000/- per month to the respondent No,1 as interest on security deposit. </u> As per learned counsel for the Petitioner, the said shop voluntarily vacated and handover the possession thereof by the Respondent No,1 through his agent and in the month of October, 2008, the same was rented out to M/s. Bank Al-Habib. <u>The said shops are still in </u>possession of the M/s. Bank Al-Habib however, the Respondent<u> No,1 with mala fide intention and in calculated manner pressurized the Petitioner No,1 i,e, by filing complaint against the petitioner No,2. Per learned counsel, the Respondent No,2 without having jurisdiction took the cognizance, entertained the complaint and has passed the impugned order dated 11.11.2014. </u>According to the learned counsel for the petitioner, the decision of the learned Respondent No,2 is against the law. [Underlining is mine]. Be that as it may, issue notices to the Respondents and Advocate General Sindh for 14.01.2015. Till the next date of hearing, the operation of the impugned decision dated 11.11.2014 [enclosed as Annexure 'P/1' at page-15 along with MoP] stands suspended/stayed." </i> 11.Upon service; the Respondents No,1, filed his 'counter affidavit', wherein inter alia, the maintainability of the instant petition was challenged on the ground that the decision of learned Ombudsman dated 11.11.2014 [Annexure P/1 to the MoP], is appealable before the Hon'ble Governor Sindh in terms of the Section 32 of the Establishment of the office of Ombudsman for the Province of Sindh Act, 1991 [Act I of 1991] and since, such 'appeal'/'representation' has already been filed by the Petitioner No,2, as such, the instant petition besides, being not maintainable in law seems an attempt on the part of the Petitioners to pressurize the Respondent No,l. Further, the Petitioner No,1 herein as alleged by Respondents, have 'no locus standi' and / or otherwise, can claim any 'cause of action' for filing of the instant Petition. Moreover, the Petitioners, at the same time for same grievance, cannot rely upon two forums. Per Respondent No,l's stand, the instant petition as 'framed' and 'filed' besides being not maintainable in law is liable to be dismissed in limine. 12.The Assistant Advocate General Sindh, in response to the instant petition has also filed 'parawise comments' on behalf of the Respondent No,2, wherein, the Respondent No,2 has not only strongly defended the 'impugned decision' of learned Ombudsman dated 11.11.2014 but has also made a prayer for dismissal of the instant Petition, Per 'comments' of Respondent No,2, since, the 'impugned decision' of the learned Ombudsman Sindh, at Karachi, is appealable before the Honi'ble Governor Sindh, in terms of Section 32 of the Establishment of the Office of the Ombudsman for the Province of Sindh Act, 1991 [Act I of 1991], as such, the jurisdiction of this Court under Article 199 of the Islamic Republic of Pakistan 1973, cannot be invoked and/or exercised. Per stand of Respondent No,2, under Section 32 of Act 1991 [I of 1991], any person aggrieved by a
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decision/order of the Ombudsman can, within a period of Thirty days, make/file proper 'representation' to the Hon'ble Governor Sindh, who thereupon, may pass an appropriate order as he deems fit. 13.Lastly, on 27.04.2016, when the above petition came-up before the Court then we heard Mr. Zahid Khan, learned counsel for the Petitioners, Mr. Waseem Ahmed Memon, learned counsel for Respondent No,1 and Mr. Miran Muhammad Shah, Addl. Advocate General Sindh, at length and also gone through the available on record minutely with their valuable assistance. 14.Per Mr. Zahid Khan, learned counsel for the Petitioners, the 'impugned decision' dated 11.11.2014 [Annexure 'P/1' to the MoP] passed by the learned Ombudsman Sindh, at Karachi, besides, being without jurisdiction is also 'coram-non judice' as according to Mr. Zahid Khan, the learned Ombudsman Sindh, at Karachi, has wrongly assumed the jurisdiction viz-a-viz a dispute of civil nature between the Petitioner No,1 and Respondent No,l. Moreover, the Respondent No,2, who is the husband of Petitioner No,1 has done/committed no wrong in his 'official capacity' as such, the case of the Petitioner in no manner falls within the scope of 'Maladministration as alleged by the Respondent No,l. Mr. Zahid Khan, learned counsel for the Petitioners next urged, that the learned Ombudsman/Respondent No,2, has in fact absolutely failed to understand the nature of 'controversy' between Petitioners and Respondent No,l. Per learned counsel 'ex-facie', the dispute between the part;es, as is evident from record, was/is a dispute of civil nature, which under law, can only and properly be adjudicked upon by a Court of 'civil jurisdiction' and not by 'Ombudsman' Sindh at Karachi as has been done in the case in hand. In this regard inter alia a reference was made to the statement of Estate Agent namely Mr. Tahir Mehmood, recorded during the proceedings before learned Ombudsman Sindh at Karachi. In the statement of the Estate Agent of Respondent No,1, recorded on 30.04.2014, it was specifically stated as follows:- II<i>that Mr. Muhammad Rafiq Chaudhry, who had been residing in the United States, handed over to him his shop No,3 situated at Building No,158-C. Bazar Area; Malir Cantt., Karachi for letting it out. According to him Mr. Muhammad Rafiq Chaudhry had taken the said shop on "Pagri" system from Mst. Zamurad Begum. He added that Mr. Liaquat Ali Khan Baloch told him that he wanted to let out his building to Bank Al-Habib and if the whole building including complainant's shop be let out, a handsome rent could be earned. As such he conveyed the whole matter to Mr. Muhammad Rafiq Chaudhry. Mr. Liaquat Ali Khan Baloch also talked to Mr. Muhammad Rafiq Charudhrv, and it was agreed that Mr. Liaquat Ali Khan Baloch would pay Rs,13,000/- per month to the complainant as rent of his shop through the Estate Agent. So he (the Estate Agent) handed over the said shop to Mr. Liaquat Ali Khan Baloch. Accordingly cross cheque of Rs,13,000/- in favour of Mr. Muhammad Rafiq Chaudhry for the period from December, 2008 to May, 2009 was given to him, which he deposited in the bank account of Mr. Muhammad Rafiq Chaudhry. However, subsequently, Mr. Liquat Ali Kahn Baloch refused to pay rent and wanted him to ask Mr. Chaudhry to take his "Pagri" (amount of goodwill) back and return his shop. [Underlining is ours] </i>. 15. From the above, it is quite evident that the 'vacant possession' of the 'subject shop', was given back to the landlady/Petitioner No,1 in the year, 2008 through his authorized Estate Agent viz. Mr. Tahir Mehmood. The 'subject shop', it is worth to note, was admittedly let out by the Petitioner No,1 [wife of Petitioner No,2] to Respondent No,1 under 'Agreement of goodwill' dated 10th April, 2004 [Annexure 'P/7' to the MoP]. The Petitioner No,1, who is the 'lawful owner' of entire building later on and admittedly has rented out the entire building including the 'subject shop' to Bank Al-Habib Ltd. under Agreement of Lease dated 31.10.2008 [Annexure 'P/4' to the Mon In this regard being relevant the letter of Petitioner No,2 dated 25.05.2014 as having been referred to in 'para 7' of the 'impugned decision' [Annexure 'P/1' to the MoP] and also reproduced therein, by the learned Ombudsman, reads as follows:- <i>".... that</u> his wife namely Zamarud Begun: owned the property viz. Plot No,158-C, Malir Cantt.
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Karachi, which included shop No,3 in question. He further added that the said shop had been rented out to Mr. Muhammad Rafiq Chaudhry against Rs,1,000,000/- @ rent of Rs,50/- per month excluding utility bills, etc. through an agreement of Goodwill/Pagri' dated </u>10.04.2004, signed by his wife . The tenant, however, failed to pay the monthly rent, electricity charges and water charges due to which electricity connection was disconnected on different occasions and the same were got restored by them upon payment of surcharge. However, on their request, the tenant arranged to hand over the possession of the said shop through an </u>Estate Agent, Tahir Mehmood and the possession of the shop was handed over on the condition that the fixed deposit would be returned to the tenant within one year after deduction of outstanding rent and utility bills, to which the tenant agreed on the condition that by the time fixed deposit was refunded to him, an amount of would be paid to him. </u> However, that the said amount later on increased to Rs,13000/- by the tenant. The payment @ Rs,13,000/- per month was made to the tenant on 5 occasions and over and above the above amount payment of Rs,6000/- was also made to the said Estate Agent as commission. Thus the Agent handed over peaceful vacant-possession of Shop on 03.12.2008, on behalf of the said tenant. As such the premises was rented out to Bank Al-Habib under Agreement of Lease dated 31.10.2008. <u>Thereafter, the tenant started blackmailing them claiming himself to be the owner of the property due to which the payment of Rs,13,000/- P.M. was stopped.</u> He added that the amount of fixed deposit i,e, Rs,1,000,000/- was liable to be paid by them to the tenant but for the purpose, he was required to give them a proper receipt mentioning therein that they would never claim the ownership of the said property in future and would never lodge any such frivolous complaint(s) against them in future. He also quoted the gist of certain cases to establish/prove that a property rented out on goodwill/Pagri basis would not entitle the tenant to become its owner but legally he would only be a tenant." [Underlining is ours] </i> 16. Conversely. Mr. Waseem Ahmed Memon, learned counsel for the Respondent No,1 and Mr. Miran M. Shah, Addl. A.G. Sindh, vehemently opposed the maintainability of the instant Petition by submitting that the 'impugned decision' of the learned Ombudsman [Annexure 'P/1' to MoP] since, is appealable before the Hon'ble Governor Sindh under Section 32 of the Establishment of the office of the Ombudsman for Province of Sindh, Act, 1991 [Act 1 of 1991], as such, the jurisdiction of this Court…
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