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Petitioner: ZULFIQAR ALI MUBASHAR VS Respondent: MUHAMMAD MUMTAZ ALAM through Legal Heirs
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: ZULFIQAR ALI MUBASHAR vs MUHAMMAD MUMTAZ ALAM through Legal Heirs Case No.: Suit No,673 of 2002 Date of Judgment:2013-03-12 Reported As: PLD 2013 Sindh 327 Result: Suit dismissed
JUDGMENT
JUDGMENT ' AZIZ-UR-REHMAN, J.---The above suit has been filed by the plaintif f through his attorney Shahique Bashir Baig s/o Bashir Baig for specific performance of contract, injunction and damages with following prayers:- "a. To direct the defendant No,1 specifically to perform the contract which was made between the plainliff and defendant No,1 in shape of mortgage deed and to execute the documents of 2/3 undivided share of the subject property measuring 200 sq. Yds in favour of the plaintiff in respect of Is] & 2nd Floor and two garage Nos. 1 & 3 at Ground Floor , including roof of the house constructed over a Pot No, W/47, admeasuring 200 sq. Yds, situated at Block 2, PECHS, Karachi and on his refusal/failur e to do so the Nazir of this court may be directed to get the sale deed or any other necessary and requisite documents executed and register ed in favour of plaintiff befor e the Sub-Registrar and any other concerned officer on the cost of the plaintiff. As well as defendants may be directed to pay damages to the plaintiff. b. To restrain all- the defendants by passing an order of injunction their agents, employees, workmen, legal heirs, representatives or any one whosoever working under them from entering into the portion of the plaintiff i,e, 1s1 & 2nd Floor and two garage Nos.1 & 3 at Ground Floor , including roof of the house constructed over a Pot No, W/47, admeasuring 200 sq. Yds, situated at Block 2, PECHS, Karachi, defendants may be further restrained from dispossessing, disturbing the lawful possession of the plaintiff and defendant No,1 specifically restrained from transferring, mutating, selling and creating any third party interest in respect of 1st & 2nd Floor and two garage Nos.1 & 3 at Ground Floor , including roof of the house constructed over a Pot No, W/47, admeasuring 200 sq. Yds, situated at Block 2,
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PECHS, Karachi till the final disposal of the suit. c. Cost of the suit may be awar ded. d. Any other relief with this court may be deemed fit and pr oper in the cir cumstances of the case." ALTERNA TE PRA YER: In the alternate and without prejudice to the above the plaintiff prayed that in the event this court come to the conclusion that the plaintiff is not entitled to the specific performance of contract or that the contract is not capable of enfor cement decree of recovery of Rs,38,00,000/- in addition to the differ ence between the present market value of the suit property at the date of decree and the agreed consideration with markup at the rate of.20% per annum may please be passed in favour of plaintiff and against the defendant. 2. The facts in the background are : 3. Per averments in the plaint defendant No,1 is the owner of 1st & 2nd Floor of the house including two Garages Nos.1 & 3 at Ground Floor , constructed over a Pot No,W/47, situated at Block 2, PECHS, Karachi (hereinafter referred to as the suit property). Per plaintif fs assertion the suit property has been mortgaged by the defendant No,1 with the plaintif f. The mortgage so created is by virtue of Mortgage Deed dated 16-3-1998 is for and pertaining to loan amount obtained by defendant No, 1. 4. Per the plaintif f's assertions, physical possession of the suit property was also handed over to the plaintif f. Per averments, first floor of the suit property in fact was rented out to one Munir Ahmed in the year, 1996. Defendant No,1, as stated was also residing with Munir Ahmed. Per plainti ffs version some dacoity was committed in the portion where the plaintif f was residing as tenant. According to the plaintif f, on account of such dacoity , the plaintif f had also suffered heavy loss. On the date of incident i,e, 13-5-1997, the defendant No,1 according to the plaintif f had come to suit property . Upon knocking the door and on plaintif f's identification as landlord [Muhammad Mumtaz Alam] the door of the house was opened for the landlord. The defendant No,1 along with dacoits holding weapons, thereafter , as stated, were rushed into the house of the plaintif f. Per assertions in the plaint, the dacoits after entering the house, on gun point, started search of the house. 5. During dacoity , occurred on 13-5-1997, per averments in the plaint, valuable articles from the plaintif f's house were also taken away . Such incident was also reported at Police Station Ferozabad. Amongst others the name of defendant No,1 was also reported/mentioned in the F .I.R. No,288/97. 6. Thereupon, legal notice dated 24-5-1997 was served upon the defendant No,1 which was also replied through advocate of defendant No, 1. Thereafter , per plaintif f's averments the defendant No,1 with a view to settle the matter approached the plaintif f in presence of peoples of respectable status. In consequence of such negotiations for settlement, per plaintif f's version, mortgage deed dated 16-3-1998 (Rahan Nama) was then signed and executed by the defendant No,1 and witnesses as well. 7. Per averments in the plaint, loss(es) caused are in sum of Rs,18,00,000/-. Per averments, promise for paying the same in the shape of cash was also made by the defendant No, 1. According to plaintif f's version since the defendant No,1 was not in a position to pay the amount in cash at the relevant time, therefore, the defendant No,1 showed his willingness and readiness for creating mortgage of the suit property i,e, 1st & 2nd Floor including garage Nos.1 & 3 situated at ground floor of House No,W/47, Block 2, PECHS, Karachi. Accordingly , mortgage deed dated 16-3-2008 was executed. Due to non-payment of the mortgage money during prescribed period [i,e, up to 20-6-2000], per plaintif f's assertion, the mortgaged deed in terms thereof ought to be deemed and treated as concluded sale agreement. 8. Per assertions, the legal heirs of deceased i,e, Muhammad Mumtaz Alam are avoiding to perform their obligations. The rent case against the plaintif f filed by defendant No,1 before the Rent Controller , Karachi East is nothing but an attempt aimed to avoid mortgage deed dated 16-3-1998 [Rahan Nama] duly signed and
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executed by the defendant No,1 in favour of the plaintif f. Not only this the defen dants are in a drill to usurp the money of the plaintif f by selling subject property . Besides the plaintif f feels apprehension of dispossession from subject property at the hands of defendants. Per averments the cause of action has arisen in favour of the plaintif f on 16-3-1998 when the mortgage deed was executed and also on other dates mentioned in para 14 of the plaint. 9. Along with the plaint an application under Order XXXIX, Rules 1 & 2, C.P.C. Read with section 151, C.P.C. [C.M.A. No,4220/2002] was also filed inter alia for restraining the defendants from creating any third party interest in respect of 1st and 2nd Floor of house constructed over Plot No,W/ 47, Block 2, PECHS, Karachi admeasuring 200 sq.Yds and Garrage Nos.1 & 3 upon the ground floor of the aforesaid property till the final disposal of the suit. 10. On 30-5-2002 when the injunction application [C.M.A. No,4220/2002] came up for orders before the court the following order was passed : "30-5-2002 Mr. Muhammad Ham); Advocate for the Plaintif f 1. Granted. 2. Notice to defendants for 18-6-2002. Till then, no third party interest in the suit property shall be created." 11. Upon service, the defendants jointly filed written statement dated 20-8-2002. 12. In the written statement besides maintainabiiity of suit various other prelimi nary objections were raised i,e, the plaint does not disclose any cause of action; suit being based on mortgage deed dated 16-3-1998 [Rahan Nama] is incompetent in law. Rahan Nama per defendants' assertion is not a document to be termed/called as mortgage deed as the same besides not properly stamped is not a registered document, no specific performance of such document being unknown to law can be sought under Transfer of Property Act, Stamp Act or Registration Act. Per defendants assertion the suit as framed and filed besides is barred by referred laws as well by the law of limitation. Further , the suit has not been filed through lawful and duly constituted recognized agent or attorney . 13. In the written statement execution of mortgage deed dated 16-3-1998 [Rahan Nama] was forcefully denied. It was further averred in the written statement that the so called document is without any consideration. The plaintif f, per averments in written statem ent is the tenant since, 1996. In this regard, per averments in written statement, a rent case No,606/2000 (Muhammad Mumtaz Alam v. Z.A.Mu bashar), for the ejectment of plaintif f was stated to be pending adjudication in the Court of Vth Senior Civil Judge, and Rent Controller (East), Karachi being filed on the ground of personal use. According to defendants' version the possession of First floor of the suit property was given to the plaintif f in his capacity as tenant on the monthly rent of Rs,7000/- plus Rs,35000/- as security deposit. 14. Keeping in view plaintif f's need for house i,e, for 5/6 months and upon consideration that the plaintif f is an advocate of High Court of Sindh and his house is under construction, the suit property under circumstances was thus rented out to him. The presen t suit filed by the plaintif f, per averme nts in the written statement, is nothing but a futile attempt for seeking shelter against ejectment proceedings pending adjudication against him in the court of law . 15. In the written statement, it was also denied that Muneer Ahmed at any stage remained tenant on the suit property . The story of dacoity , per averments, is the product of the mischievous imagination of plaintif f. In the legal notice sent through Muhammad Hanif, Advocate to the defendant No,1, per averments in written statement, plaintif f admits himself as tenant of the suit property .
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16. In the written statement, it was vehemently denied that the defendant No,1 ever negotiated or settled any matter with plaintif f. Per defendants' assertion the so-called mortgage deed [Rahan Nama] is a fabricated and forged document and bears no signatur es of the defendant No, 1. Per averments in the written statement the plaintif f before the filing of rent case was in fact paying rent. The plaintif f, however , belatedly has started reliance on the forged 'Rahan Nama' with a view to defeat the rent proceedings filed by defendant No,l. The plaintif f, per averments in written statement, is a proclaimed cheater for having cheated the 'general public' by claiming himself as an Advocate of High Court of Sindh for more than 10/15 years, that is Why Sindh Bar Council and High Court of Sindh, issued circulars to the subordinate courts and even in newspapers vis-a-vis plaintif f's conduct. 17. Per defendant's assertion, the plainti ff's suit besides incompetent in law is sleading/misconceived. Also no cause of action has accrued in favour of the plaintif f. The plaintif f is not entitled to any of the reliefs sought in the plaint. The suit filed by the plaintif f, per defendants' averments, is liable to be dismissed with costs. 18. On 13-10-2003, after filing of objections/counter affidavit by the defend ant No,1, when the injunction application bearing C.M.A. No,4220 of 2002 came up for hearing before the court the following order thereon was passed : "13-10-2003 Mr. Younis Inayat, Advocate for Plaintiff Mr . Nawab Mirza, Advocate for the defendants 1-5 2. 1. Let the parties maintain status quo. However , this order shall not affect any other order passed by any competent court or authority and shall not have the effect of staying any proceedings befor e any other court in any other pr oceedings which shall pr oceed in accor dance with the law ." 3. 4. 19. On the pleadings of the parties the court settled following issues on 5-9-201 1: 1. Whether the suit as framed is maintainable in law? 2. Whether the alleged mortgage deed dated 16-3-1998 was executed by the defendant No,1 (now deceased) in favour of the plaintiff ? If yes its effect? 3. Whether the alleged mortgage deed dated 16-3-1998 is mala fide, fabricated and for ged document? 4. Whether the defendant No,1 handed over the possession of the suit property to the plaintiff on the basis of alleged mortgage deed dated 16-3-1998? 5. Whether the plaintiff is entitled for recovery of damages from the defendants in addition to the 1st and 2nd Floor including the garage No,1 and garage No,3 upon the ground floor of the suit property which is/are in possession of the plaintiff? 6. What is the legal effect of findings of concerned Rent Contr oller to the effect that there exists a relationship of landlor d and tenant between the parties? 7. What should the decr ee be?" 20. Thereafter , on the defendants' applic ation under Order XXVI, Rule 2, C.P.C. Bearing C.M.A. No,4784 of 2012, Commissioner was appointed on 23-8-2012 for recording of evidence of the parties at the cost of defendants. Order dated 23-5-2012 reads as under: "23-8-2012 None pr esent for the plaintiff' Mr. Nawab Mirza, Advocate for the defendants
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For the last two dates, nobody is appea ring for the plaintiff. This is an applicat ion under Order XXVI, Rule 2, C. P. C. Which has been filed on behalf of the defendants with the prayer that Commissioner be appointed for recording evidence in this case as the defendant Dr. Furkhanda Mumtaz is ailing person and she is 73 years old. Since nobody is present for the plaintiff, the counsel for the defendants submits that if commissioner is appointed, the cost of the entire commission shall be paid by the defendants. At his request, Ms. Masooda Siraj, Advocate is appointed commissioner . Fee of the commissioner shall be Rs,7000/- per witness. The commissioner shall also issue notice to the plaintiff. Parties are directed to file their affidavits-inevidence along with documents befor e the commissioner . The commissioner shall return the commission within four months. Commissioner is allowed to impose cost on any unnecessary or unjustified adjournment. She is also allowed to close the side of the defaulting party . Application disposed of" 21, Befor e the commissioner the plain tiff [despite service, per commissioner's report dated 13-11-2012] avoided and/or neglected to lead any evidence in support of his claim. Consequently , per commissioner's report plaintiffs side was closed on 8-10-2012. 22. Thereafter , Dr. Farkhunda Mumtaz/defendant No,1 by way of filing her 'affidavit-in-evidence' led her evidence. Her 'examination-inchief' was recorded on 15-10-2012. During 'deposition' besides producing 'affidavit-in-evidence' as 'Exh.2' other documents were also produced by 'DW-1' as Exh.3 to Exh.27. In the 'deposition' [Exh.01] Dr. Farkhunda Mumtaz Alam/defendant No,1 besides admitting her signatur e on the 'affidavit-in-evidence' also deposed that the contents of her 'affidavit-in-evidence' are correct. The witness [DW -1] in her deposition [Exh.01] specifically denied mortgage deed dated 16-3-1998 [Rahan Nama] as being forged and fabricated document. Defendant No,1 [DW -1] further deposed that the Rahan Nama/Mortgage Deed [Exh.15/9], does bear the signatur e of her husband [viz. Muhammad Mumtaz Alam, now deceased]. 23. Defendant No,1 [D.W .1] in her 'affidavit-in-evidence' [Exh.2] also made some important/r elevant averments, the gist of which is as follows: "The plaintiff was the tenant of 1st Floor of my husband Muhammad Mumtaz Alam [now deceased] on monthly rent of Rs,7000/- and security deposit of Rs,35,000/-. The plaintiff had introduced himself as a practicing lawyer at the time taking the suit property on rent. Keeping in view final stage of construction of the plaintiff's house as disclosed and his need under circumstances for 5/6 months, the deceased husband on compassionate humanitarian grounds had agreed for renting out the suit property to the plaintiff. The plaintiff remained regular in payment of monthly rent. Upon the expiry of 6 months my deceased husband requested the plaintiff to vacate and hand over the vacant possession of the rented premises and Garages as the same were bona finely requir ed/needed to accommodate his son namely Ahmed Faraz who was scheduled to return to Pakistan after completing his studies from USA and was planned to go for marriage. This bona fide and genuine demand was mala fidely , illegally and harshly resisted by the plaintiff. Thereafter the plaintiff also stopped making payment of monthly rent. Consequently my deceased husband filed two separate rent cases bearing No,606/2000 and 161/2001 in the court of Rent Contr oller East Karachi and was contested up to Hon'ble Supreme Court of Pakistan. Finally the court of Rent Contr oller through due process of law deliver ed and handed over the physical possession of the rented premises and garages, to the legal heirs on 25-4-2006. On the same date [i,e, 25-4-2006] the plaintiff made forcible dispossession of defendant No,2/other legal heirs of deceased from 2nd Floor of the property bearing No,2/47-W , PECHS, Karachi. Report of the illegal Dispossession was made to the concern ed Police Station and Criminal Compl aint No,141/2009 was filed by me in the court of District and Sessions Judge, Karachi East which is pending disposal in accor dance with law."
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24. From the defendants' side two more witnesses viz (i) Mohammad Ali Sheikh s/o Ahmed Ali Sheikh and (ii) Jamal Amir s/o Tahir Zia were also examined. Their depositions were recorded on 15-10-2012 [Exh.28 and Exh.31 respectively]. D.W.2 in his deposition [Exh.28] produced his 'affidavit-in-evidence' as Exh.29. The 'examination-in-chief of D.W .2 viz. Mohammad Ali Sheikh r ecorded on 15-10-2012 is r eproduced as under: "Examination-in-Chief of DW -2 [Exh.28/ I produce my 'affidavit-in-evidence' [Exh.29]. I see the Photostat of Rahannam a as Exh.15/9 dated 16-3-1998 and say that I had attested the said documents produced by the plaintiff (Mubashir Advocate) in his plaint at that time I was busy in other professional work and Mubashir Advocate was in haste and he took my seals and placed on the affidavit (Rahannama), being brother advocate. I rely upon him. However , I did not inquir e further details from him in respect of witnesses identification. I say, that it came into my knowledge that Z.A. Mubashir is a tout and not an advocat e and he has obtained my attention by misrepresentation and fraud, showing himself as an advocate. I further got the information that even the Hon'ble High Court of Sindh and Sindh Bar Council has also declar ed him as Fake Advocate. I was summoned to give evidence in Rent Case No,606/2000 wher e I have given the same statement on 19-4-2002 which I see as (Exhibit.30)." 25. D.W.3 viz Jamal Amir in his deposition [Exh.31] produced his 'affidavit-in-evidence' as Exh.32. The examination-in-chief of D.W .3 is also r eproduced her ein as under: "Examination-in-Chief of D.W .3 [Exh.31] "I produce my 'affidavit-in-evidence' as Exh.32. I used to live in PECHS in the neighbor hood of ZA Mubarak and I have also attested his childr en education documents but not so called Rahannama which I see as Exhibit 15/9. I have no concern with this document whatsoever ." 26. After recording of defendants' evidence, vide Exh.33 the learned counsel for the defendants closed the defendants' side of evidence. 27. On 14-2-2013 when the above suit came up for arguments I heard Mr. Nawab Mirza, learned counsel for the defendants and with his able assistance also gone thr ough the available r ecord minutely . 28. Mr. Nawab Mirza, learned counsel for the defendants at the very outset focused my attention on two rent cases: (i) Rent Case No,606/2000 ' Mumtaz Alam [now died on 17-12-2002] through legal heirs Dr. Farkhunda Mumtaz and two others v. Mubashir s/o W ali Muhammad & another . (ii) Rent Case No,161/2001 ' Muhammad Mumtaz Alam [now died on 17-12-2002] through legal heirs Dr. Farkhunda Mumtaz and two others v . Mubashir s/o W ali Muhammad. 29. Per learned counsel for the defendants the Rent Case No,606, of 2000 filed in the Court of 2nd Sr. Civil Judge, Karachi East was on the ground of bona fide personal use/need and the prayer made therein was to the following effect: "To make orders directing the opponents to vacate the first floor of rented premises bearing No,47-W , Block 2, PECHS, Karachi District East falling within jurisdiction of (Police Station Ferozabad) and put the applicant in physical possession of the said r ented pr emises described." 30. Mr. Nawab Mirza, learned counsel for defendants further argued that the Rent Case No,606 of 2000 was contested by the opponent (Plaintiff herein) but the same was allowed vide judgment dated 22-8-2003 (Exh.3) passed by 2nd Senior Civil Judge, Karachi East. The operative part of the judgment runs as follows: As the applicant has established his relationship being landlor d with the opponent therefore, it is proved that opponent No,1 has made addition alteration and other fittings and used the premises as office other than
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residential purpose. The applicant has proved his bona fide personal need, therefore, I hereby allow the present application and opponent is directed to handover peaceful vacant possession of the demised premises i,e, First Floor , of the House No,47-W , Block 2, PECHS, Karachi within 60 days of this order. The parties are left to bear their own cost," 31. The above judgment [Exh.3] was impugned in FRA No,116 of 2003 [Z.A. Mubashir and another v. Muhammad Mumtaz Alam (now died on 17-12-2002) through legal heir Dr. Farkhunda Mumtaz and two others] befor e IVth Additional District Judge, Karachi East. 32. Per learned counsel, upon serious contest nonetheless the above FRA No,116 of 2003 was dismissed vide judgment dated 31-5-2004 [Exh.51 passed by IVth Additional District Judge, Karachi East. The operative part of the judgment r eads as under: In view of my finding on the above points I maintain the ejectment order passed by the learned Trial Court with the result the appeal in hand stands dismissed. The appellant is directed to hand over peaceful vacant possession of the demised premises i,e, First Floor , of the House No,47-W , Block 2, PECHS, Karachi to the respondent within 60 days of this or der. The parties ar e left to bear their own cost." 33. Likewise, per learned counsel 2nd Case No,161 of 2001, filed on the ground of 'default' by Muhammad Mumtaz Alam [now died on 17-12-20 02] through legal heir Dr. Farkhund a Mumtaz and two others v. Mubashir s/o Wali Muhammad befor e the Court of IIIrd Rent Contr oller, Karachi the prayer made therein was to the following effect : ' The applicant prayed to direct the oppo nent to put the applicant in possession of the First Floor , of the House No,47-W , Block 2, PECHS, Karachi with awar d cost of the pr oceedings." 34. Mr. Nawab Mirza, learned counsel for the defendants continuing his arguments further submitted that 2nd Rent Case [i,e, Rent Case No,161/2001] filed on the ground of default was indeed contested by the opponent [plaintiff herein] but the same was also allowed [Exh.4]. The operative part of the judgment dated 28-7-2004 [Exh.4] passed by IIIr d Rent Contr oller, Karachi East r eads as under: For the reasons and discussions, and finding under Point No,1 purely in the backgr ound of the evidence and documents on record I am of the confirmed view that the opponent has defaul ted in payment of monthly rent from September 2000 till the filing of the present ejectment application. 1 hereby allow the application under section 15(2) of Sindh Rent Premises Ordinance, 1979 with direction to the opponent to hand over vacant possession of the First Floor portion of the house constructed on Plot No,47-W , Block 2, PECHS, Karachi." 35. Learned counsel defendants advancing his arguments further submitted that again judgment dated 28-7- 2004 [Exh.4], the opponent/plaintiff herein preferr ed F.R.A. 165 of 2004 [Z.A. Mubashir s/o Wali Muhammad v. Muhammad Mumtaz Alam [Now deceased] through legal heirs Dr. Farkhunda Mumtaz and two others] befor e IVth Additional District Judge, Karachi East. The same after serious contest was also dismissed vide judgment dated 6-2-2006 [Exh.8]. The operative part of the said judgment r eads as under: The outcome of the above discussion is that relationship of landlor d and tenant are fully existing between the parties and further it is established that the tenant/appellant has committed willful default on payment of rent and after noncompliance of order dated 23-12-2004, no room is left to interfer e with the findings of the learned Rent Contr oller which is accor dingly upheld. The appellant is…
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