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Petitioner: Muhammad Azeem VS Respondent: Mst. Rani through Special Attorney and 2 others
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: Muhammad Azeem vs Mst. Rani through Special Attorney and 2 others Case No.: Constitutional Petition No. S-67 of 2018 Date of Judgment:2019-10-30 Reported As: 2020 YLR 1932 Result: Petition dismissed
JUDGMENT
JUDGMENT AZIZ-UR-RAHMAN, J.---Through this Constitutional Petition No.S-67 of 2018, the Petitioner herein [Tenant], has called in question Order dated 18.12.2017, passed by the learned District and Session Judge, Karachi- Central [Respondent No.3 herein], in Frist Rent Appeal No.49 of 2017 [Muhammad Azeem son of Muhammad Nasim v. Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain and 2 others], whereby, the 'impugned order' dated 10.4.2017 therein, passed by the learned IIIrd Rent Controller, Karachi-Central, in Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim. Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim], was allowed with direction to the Opponent [Tenant-Petitioner herein], to hand-over the vacant physical possession of the 'demised premises' to the Applicant Landlady [Respondent No.1 herein], within three [3] months w.e.f. 10.4.2017. The prayers sought by the Petitioner herein [Tenant], in the instant Constitutional Petition reads as follows: (i) To set-aside the impugned order dated 18.12.2017 passed by the learned District and Sessions Judge Karachi Central/Respondent No.3 being appellate court is not maintainaNe under the law. ii) To set-aside the impugned order dated 10.04.2017 passed by the learned IIIrd Rent Controller Karachi Central/respondent No.2 being trial court is also not maintainable under the law as there was/is no relationship as a tenant and landlord between the parties. iii) To call the R&P's from both the below courts and suspend the operation of the both the impugned orders till the final disposal of this Petition. iv) That after hearing the parties and itself satisfied on the law points involved in the matter, the application under section 15 of S.R.P.O 1979 of the applicant may please be dismissed or to remand back the case to the trial court to re-hear the parties and pass fresh order considering the law points involved in the matter on merits.
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v) Any other relief (s) which this honorable court may deem fit and proper to the circumstances and facts of the case. 2. The relevant briefly stated facts giving rise/leading to the filing of the instant Constitutional Petition are that; the Respondent No.1-Landlady, as per 'averments' assertions' , made in the Rent Application, filed under Section 15 of Sindh Rented Premises Ordinance, 1979 [In short S.R.P.O. 1979] is the 'absolute' and 'sole owner' of House No.2/119, 'Shop' and under grounds 'Godown' No.7, situated at Commercial Area, Liaquatabad, Karachi, [here-onward referred to as the 'subject premises']. 3. The Petitioner herein [Tenant], as averred, in the 'Ejectment Application' of Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim], is a Tenant-Opponent [Petitioner herein], who was given the 'subject premises' i.e. [i]. Shop No.2/119, and [ii]. Under ground 'Godown' No.7, situated at Commercial Area, Liaquatabad, Karachi, on the rent of R.275/- and 250/- per month respectively, which rent with the passage of time was mutually increased upto 1540 in respect of each 'demised premises' total of which per month comes to Rs.3080/- [Rupees Three Thousand Eighty Only], in respect of both the 'demised premises'. 4. In the Rent Application filed under Section 15 of SRPO, 1979, it was specifically averred by the Applicant landlady [Respondent No.1 herein] that both the 'demised premises' i.e. [i] Shop No.2/119, and [ii]. Under ground 'Godown' No.7, situated at Commercial Area, Liaquatabad, Karachi, are required for 'personal use' of the Applicant-Landlady [Respondent No.1 herein]. Besides, as asserted, in the Ejectment Application, the Petitioner herein [Tenant], had also stopped the payment of agreed monthly rent since, last four [4] months. 'Para 11', of the Ejectment Application which pertains to the 'cause of action', for ready reference is reproduced herein- below:- "11. That the cause of action for filing the instant rent case arose to the applicant firstly when opponent stopped the payment of monthly rent since last four months, secondly when applicant visited to the opponent for taking monthly rent and requested him to vacate the rented premises, as the same are needed for his personal use, but the opponent started issuing threats of dire consequences and quarreling with the applicant, the same cause of action is still continued day by day till this ejectment application is allowed as prayed." [Emphasis supplied]. 5. The prayers sought in the Ejectment Application on behalf of Respondent No.1 Landlady through her Special Attorney/ husband namely Asim Hussain son of Ansar Hussain for convenience purpose are reads as follows: a) To direct the opponent above-named and/or anybody/person else holding possession of the rent premises, to vacate the rent premises Viz. House No.2/119, Shop and Underground Godown No. 7, situated at Commercial area, Liaquatabad, Karachi, and to handover physical possession of the same to the applicant. b) To direct the opponent and / or anybody else holding possession of the rented premises on his behalf to pay arrears of monthly rent, since last 04 months to onwards @ Rs. 3, 080/- per month, and further to clear all the utility bills upto date to the concerned authorities or to deposit the same before this Hon'ble Court. c) Any other relief which this Hon'ble Court deem fit and proper may be granted to the applicant. 6. On service, the Petitioner herein [Tenant-Opponent], filed his 'written statement' wherein, not only the 'allegations'/'adverse assertions' made in the Ejectment application were 'denied' /'controverted' but in the written statement some 'Preliminary Objections' vis-a-vis maintainability of Ejectment Applicant [Rent Case No.224 of 2014], were also raised. The 'preliminary objections', are also reproduced herein-below:- A. That since no such name is listed in the names of L/Rs of the deceases owner Mst. Maqboolan Begum wife of Mr. Israr Hussain, the names of L/Rs given in the Notice under Section 18 of S.R.P.O. 1979 dated 17.08.1991 nor such name is given in the previous Rent Case No.474/1990 nor in the their Application under Order XXII, C.P.C. read with Section 18 of S.R.P.O. 1979 to bring the names of the L/Rs of the then owner/landlord therefore, the relationship of Landlord and Tenant is denied for want of intimation/information about the change of ownership of the premises in question, if any, hence the Applicant has no cause of action to file this Ejectment Case against the Opponent/ Tenant. Photo Copy of the previous Notice under section 18 given by the legal
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heirs of Mst. Maqboolan Begum wife of Israr Hussain dated 17.5.1999 is filed as Annex 0/1. [Emphasis supplied]. B. That the Application under Section 15 of S.R.P.O. 1979 filed by the Applicant is not maintainable for want of service of mandatory Notice under Section 18 of S.R.P.O. 1979 as no copy of any title deeds and documents is ever sent to the Opponent/Tenant, if any, in the name of the Applicant who is still stranger to the Opponent as the L/Rs of Late Mst. Maqboolan Begum were collecting the rent and they collected the monthly rent upto month of January, 2014 against proper receipt which is admitted fact even by the above named Applicant so called/ alleged owner/Landlord of the Shop No.2 and Godown No.7 those are two independent tenements taken on rent of which is received against separate rent receipts which too is a matter of record and shall speak itself [Emphasis supplied]. C. That even otherwise this misconceived Ejectment Application as framed and filed by the stranger to the Opponent is not maintainable for misjoinder of cause of action in respect of two different premises taken on rent on Pugri basis at different times. [Emphasis Supplied]. 7. From the record, it transpires that during pendency of the Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim], the Respondent-Landlady, had also opted to file an Application under section 16[1] of S.R.P.O. 1979, with a prayer that the 'Tenant-Opponent' [Petitioner herein], be directed to deposit the Past monthly rent @ Rs.3080/- per month, in respect of both the 'demised premises' for a period of last four [4] months and 'future rent' at the same rate till the final disposal of the 'Main Ejectment Application' i.e. Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain and 2 others v. Muhammad Azeem son of Muhammad Nasim]. The said Application under section 16[1] of Sindh Rented Premises Ordinance, 1979 [In short S.R.P.O. 1979], was hotly contested by way of filing a 'counter affidavit' and 'affidavit-in-rejoinder' by Petitioner herein [Tenant] and Respondent No.1 landlady respectively. 8. Lastly, on 03.10.2014, when the above application under section 16[1] of S.R.P.O., 1979 came-up before the Court of learned IIIrd Rent Controller, Karachi-Central, then the said Application under Section 16[1] of S.R.P.O. 1979, was dismissed. The 'material part' of order dated 03.10.2014, is reproduced herein-below:- "The applicant's attorney filed affidavit-in-rejoinder to the written statement and counter affidavit to application under section 16(1), SRPO, 1979, wherein he admitted the payment of rent till January 2014, however, he denied the allegation of opponent that he has not been served with notice under section 18, SRPO, 1979. The applicant has submitted copy of tile doc. also along with rejoinder. [Emphasis Supplied]. Heard the learned counsel for the parties and perused the record, which reveals that the applicant is claiming arrears of rent since last 04 months i.e. from February 2014, while on the other hand the opponent has denied the relationship between the parties and landlady and tenant and default in payment of rent. According to him, he has paid rent upto January 2014 to the legal heirs of previous owner and thereafter, when they refused to receive the rent, he deposited the same in MRC No.16899/2014, and in support of his version he has filed photocopies of rent payment receipt in MRC and produced the original during arguments, which shows that the opponent has deposited rent w.e.f February 2014 to September 2014, of both the rented premises, thus there is no default in payment of rent, therefore, the application in hand is dismissed. However, the opponent is directed to deposit future rent for both the premises in instant case in advance w.e.f. October 2014. The amount of both the MRCs be adjusted in this case." [Emphasis Supplied]. 9. The learned IIIrd Sr. Civil Judge and Rent Controller, Karachi-Central [Respondent No.2 herein], thereafter, in view of 'pro' and 'contra versions'/ 'divergent pleadings', permitted both the parties to lead evidence in 'pro' and 'contra' of their versions/contentions, by way of filing 'Affidavit-in-Evidence' of their witness[es]. 10. Later on, Respondent No.1 Landlady through her Attorney/husband, namely Asim Hussain son of Ansar Hussain filed his 'Affidavit-in-Evidence' along with all the relevant documents i.e. Exh. 'A/7' to Exh. 'A/22'. The relevant 'averments' and 'assertions' regarding 'bona fide need' and 'default' in respect of the 'subject premises' made in 'para 7', 'para 8', 'para 9' and 'para 10' of Affidavit-in-Evidence read as follows:
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7. That I say that the land lady and I, several times approached to the opponent, and requested to vacate the demised premises, but the opponent kept the land lady and me to one to another pretext, being constrained, the land lady sent a legal notice dated 02.04.2014, and another on 19.4.2014, but the both legal notices were refused by the opponent and were not received by him. (Photocopies of Legal Notices dated 29.3.2014, 19.04.2014 and Receipt of courier service along with confirmation are attached herewith and marked as annexure "C" to "C-1-3" [Emphasis supplied]. 8. That since last 04 months, the Opponent refused to pay the rent to the Applicant, which also amounts to defauit as per Sindh Rented Premises Ordinance, 1979. [Emphasis supplied] 9. That I say that since last 04 months January 2013 the opponent refused to pay the rent to the land lady, which also amount to default as per SRPO, I further submit that the opponent was regularly paying me rent from may 2013, and he paid me rent till January 2014, thereafter he refused to pay me rent, and after filing my rent case the opponent disclosed about his MRC, bearing No.168/2014 in the name of previous owner with mala fide, in fact it was well in the knowledge of the opponent that I am the real owner of the property in question (Copies of Title Documents and Rent receipts are attached herewith and marked as annexures "D" to D/12"). It is further submitted that the opponent is not paying the electricity bill, which is outstanding against him which amounts to Rs.40,099/-, I have made several requests to the opponent to clear the same, but the opponent is refusing to clear all the dues to the K-Electric which are against him till 05.08.2014. Copy of K- Electric bill is attached herewith and marked as annexure "D-13" [Emphasis supplied]. 10. That I say that the above demised premises House No.2/119, Shop and underground Godown No.7, Situated at Commercial Area, Liaquatabad, Karachi are required to the land lady for her personal use, therefore, the opponent is liable to vacate the same and hand over the peaceful vacant possession to the land lady, applicant." [Emphasis Supplied]. 11. The "Affidavit-in-Evidence' and all other documents annexed therewith, were produced in the 'Examination- inChief' of the Deponent/ Attorney viz. Asim Hussain son of Ansar Hussain as Exh. 'A' and Exh. 'A/1' to Exh. 'A/22'. In this regard 'Para 4' of the ejectment order dated 10.04.2017, passed by learned IIIrd Rent Controller, Karachi-Central [Annexure 'A/1' to Mon speaks about the 'Examination-in-Chief' of Asim Hussain son of Ansar Hussian, who besides being a husband is also Special Attorney of Respondent No.1, is reproduced herein under:-- "4. The applicant's attorney filed his affidavit-in-evidence which he produced at 'Ex.A'. He has also produced original special power of attorney at 'Exh.A/1', original lqrar nama/Kiraya nama in respect of Godown at 'Exh.A/1', original power of attorney at 'Exh.A/2', original lqrarnama/ Kiraya nama in respect of shop at 'Exh.A/3', office copy of legal notice dated 29.03.2014 at 'Exh.A/4', original sealed envelope dated 02.04.2014, and receipt of courier at 'Exh.A/5' and its acknowledgement at 'Exh.A/6', original sealed refused envelope with receipt of courier dated 19.04.2014 at 'Exhs.A/7' and 'A/8' with its acknowledgment at 'Exh.A/9', original gift deed dated 07.04.2011 at 'Exh.A/10', eleven original rent receipts produced at 'Exhs. A/11' to 'A/21' respectively, original electricity bill in respect of 119, 120, commercial area, Liaquatabad, Karachi, for the month of July 2014 at 'Exh.A/22'. He was cross-examined by the learned counsel for the opponent and then his counsel closed his side on 26.04.2016." [Emphasis Supplied]. 12. Upon closing, the Applicant-Landlady's side of evidence, the Petitioner herein [Tenant-Opponent], also led his evidence by way of filing an ' Affidavit-in-Evidence ' and 'documents therewith'. In the 'examination in chief' he produced his 'Affidavit-in-Evidence' at Exh.'O' and other documents at Exh.'O/2' to Exh. 'O/18'. Besides, the Petitioner [Tenant] in support of his stand also examined another witness namely Jameel Ahmed, whose 'Affidavit-in-Evidence' was produced in his 'examination-in-chief' and exhibited at Exh. 'OW/1'. 'Para 5' of Order dated 10.04.2017, passed by learned IIIrd Rent Controller, Karachi-Central, in Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim] which speaks about the 'Examination-in-Chief' of Petitioner herein [Opponent-Tenant], his witness Jameel Ahmed is also reproduced herein:-
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"5. The opponent filed his affidavit in evidence and produced the same at 'Ex.O'. He has also produced notice under section 18 of SRPO, 1979, dated 17.08.1991 at 'Exh.O/2', rent receipt bearing No.1540, dated 5.12.2013 at 'Exh.O/3', receipt No.21, dated 6.01.2014 at 'Exh.O/4', money order receipt at 'Exh.O/5, another money order receipt at 'Exh.O/6', certificate dated 27.3.2014 at 'Exh.O/7, copy of intimation of MRC No.168/2014 at 'Exh.O/8', receipt of payment in MRC No.168/2014 dated 4.2.2014 at 'Exh.O/9', receipt of payment in MRC No.168/14 dated 8.5.2014 at 'Exh.O/10', receipt of MRC No.168/14 for the month of August 2014 dated 9.8.2014, at 'Exh. O/11 receipt of MRC No.168/14 dated 2.7.2014, for the month of July 2014 at 'Exh.O/12', application for compromise I rent case No.474/1990 along with order passed therein at 'Exh.O/13'. I produce intimation notice of MRC No.169/14 at 'Exh.O/14', payment of rent receipt in MRC No.169/14, payment of rent receipt dated 9.4.2014, 5.5.2014, 9.6.2014 and 2.7.2014 at 'Exhs.O/15' to 'O/18'. The opponent also filed affidavit in evidence of his witness namely Jameel Ahmed, he produced his affidavit in evidence at 'Exh.OW/1'. The opponent and his witness were cross-examined by the learned counsel for the applicant and then the learned counsel for the opponent closed his side. [Emphasis Supplied] 13. After recording 'Examination-in-Chief' and 'Cross-Examination' of the witnesses by the parties' opposite counsel, the learned IIIrd Rent Controller, Karachi-Central, in view of 'materials'/ evidence brought on record, thereafter, framed four [4] points for 'determination' of the dispute having been arisen/involved in the case in hand. The four [4] points for 'determination' settled, by the learned IIIrd Rent Controller, Karachi-Central, are as follows:- 1. Whether there exist relationship between the parties as landlady and tenant? 2. Whether the opponent has committed willful default in payment of monthly rent? 3. Whether the demised premises is required to the applicant for her personal bona fide need? 4. What should the order be? 14. Finally, on 10.04.2017, when Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim], came-up before the Court of learned IIIrd Rent Controller, Karachi-Central, then, after hearing learned counsel for both the parties and appreciation of the evidence/ materials available on record in its' true perspective, the learned IIIrd Rent Controller, Karachi-Central, thereafter, while, answering Points 1, 2 and 3, pertaining to the questions of [i] of 'relationship' between the parties i.e. as a landlady and tenant [ii]. 'Default' in payment of monthly rent by the tenant [Petitioner herein] and [iii]. 'bona fide personal' need of the Respondent No.1 herein, [Applicant-landlady], in 'affir-mative' resultantly, allowed the Rent Application and consequently the Petitioner herein, [Tenant-Opponent], was directed to hand-over vacant possession of the 'demised premises' to the Respondent No.1 herein, [Applicant-landlady] within, a period of three [3] months w.e.f. 10.4.2017. Parties to the Rent Application/Rent Case No.224 of 2014, nonetheless, were left to bear their own costs. The concluding 'Para 19', under 'Point No. 4', is reproduced herein-below:- "19. For what has been discussed above, the rent application is hereby allowed with directions to the opponents to handover the vacant possession of the demised premises to the applicant within three months. The parties are left to bear their own costs." [Emphasis Supplied]. 15. The Petitioner herein [Tenant-Opponent], thus feeling 'dis-satisfied' with Order dated 16.04.2017 (Annexure 'A/I' to the Moll, whereby, the Ejectment Application was allowed by learned IIIrd Rent Controller, Karachi- Central, opted to file Frist Rent Appeal [In short FRA], No.49 of 2017 [Muhammad Azeem son of Muhammad Nasim v. Mst. Rani widow- of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain and 2 others], before the Court of learned District Judge, Karachi-Central. The said FRA No.49 of 2017, however, was also dismissed, on the same four [4] points, framed for 'determination' of the dispute involved between the parties to Rent Case No.224 of 2014 [Mst. Rani widow of Asim Hussain through her Special Attorney namely Asim Hussain son of Ansar Husain v. Muhammad Azeem son of Muhammad Nasim] through the 'impugned Order' dated 18.12.2017 herein [Annexure 'A' to the MoP]. The relevant portion under the 'Point 5', of the 'impugned order' of 18.12.2017, reads as follows:-
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"In the light of above discussion on points Nos.1 to 4, I am of the view that the appellant/opponent has failed to establish his case for interfering with the impugned order dated 10.4.2017, passed by the learned IIIrd Rent Controller, Karachi-Central in R.C. No.224/ 2014 (Mst. Rani v. Muhammad Azeem) and I find no merits in this appeal and dismiss the same with no order as to costs." [Emphasis Supplied]. 16. The present Petitioner herein [Tenant-Opponent], thus once again feeling 'aggrieved' by and 'dis-satisfied' with the 'impugned Orders'/'Concurrent Findings' of the courts below, has approach this Court 'inter alia' with a prayer that 'impugned Order' dated 10.04.2017 and 18.12.2017, passed by the courts below i.e. Respondents Nos.2 and 3 respectively, be set-aside, as the same besides, being erroneous, as such, have been passed without proper appreciation of 'evidence'/'materials' available on record in its' true perspective, as well as, law. 17. On 10.01.2018, when the above petition, came-up before the Court then, while granting the urgent Application, the following order was passed:-- "10.1.2018 Mr. Muhammad Habib Jalib for petitioner .x.x.x.x. 1. Urgency applicant granted. 2. Exemption application granted subject to all just exceptions. 3&4: Counsel submits that originally they were tenant of one Maqboola Begum and after the sad demise notice under section 18 of Sindh Rented Premises Ordinance, 1979 was issued to the petitioner disclosing the names of the legal heirs on 17.8.1991 which does not include respondent No.1 as being legal heir. She allegedly claimed to have acquired the property in question by way of gift from one Arif Hussain, one of the legal heir of Mst. Maqboola Begum. Subsequent notice under section 18 of Sindh Rented Premises Ordinance, 1979 was issued by respondent No.1 on 29.3.2014 which is claimed not to have been served upon the petitioner. However, when enquired as to what steps were taken by petitioner after service of notice of ejectment application when he acquired knowledge of acquisition of this property by the respondent No.1, he has no answer and submitted that he waited for an order to be passed under section 16(1)A Sindh Rented Premises Ordinance, 1979. Further that such order under section 16(1) of Sindh Rented Premises Ordinance, 1979 was not placed on record. He requests for time to place copy of such order on record." [Emphasis Supplied]. 18. Manifestly, Notice under Section 18 of S.R.P.O. 1979 [Exh. 'A/4'] was issued to the Petitioner herein [Tenant] on 29.03.2014. In proofs thereof, 'original sealed envelope' dated 02.04.2014, 'receipt ' of courier' and its' acknowledgement, 'original sealed refused envelop' with 'receipt of courier' dated 19.04.2014 with its acknowledgment, have been brought on record in evidence of Respondent No.1- Landlady's attorney as Exh. 'A/5' to Exh. 'A/9'. Despite, such Notice of Section 18 of S.R.P.O. 1979, and, even thereafter, of filing of the Ejectment Application under Section 15 of S.R.P.O. 1979, the Petitioner herein [Tenant-Opponent], however, in, a calculated manner, rather to say in his own wisdom, failed to pay the 'due and payable' rent to the Landlady- Applicant [Respondent No.1 herein], through her Special attorney/ husband viz. Asim Hussain son of Ansar Hussain. Later-on, when the above Petition was posted on 23.01.2018, before this Court then, this Hon'ble court while, granting the urgent application, also pleased to pass an order dated 23.01.2018. For ready reference Order dated 23.01.2018, is also reproduced herein below:- "23.1.2018 Mr. Muhammad Habib Jalib for petitioner .x.x.x.x. 1. Urgency applicant granted. 2&3: Learned counsel submits that during…
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