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Official Citation: 2025 SHC 1362
Court / Jurisdiction: Sindh High Court
Petitioner: Const. P. 283/2025 (S.B.) Sindh High Court, Karachi - M/s. Al-Kiswa (Pvt.) Ltd (Petitioner)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2025 SHC 1362. In this matter between Const. P. 283/2025 (S.B.) Sindh High Court, Karachi - M/s. Al-Kiswa (Pvt.) Ltd (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. 283/2025 (S.B.) Sindh High Court, Karachi CITATION: 2026 SHC KHI 1362 PARTIES: M/s. Al-Kiswa (Pvt.) Ltd (Petitioner) ORDER DATE: 16-JUN-26 BENCH: Hon'ble Mr. Justice Muhammad Saleem Jessar(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH AT KARACHI
C.P No. S-283 of 2025
Petitioner M/s. Al-Kiswa (Pvt.) Ltd
: Through M/s. Badar Alam, Muhammad K ashif Badar, Sarfraz Qadir & Ammar Nazeer, Advocates
Respondent No.1 Karachi Properties Investment Company (Pvt.) Ltd : Through M/s. Ahmed Khan Lund, Yasir Hussain Malik & Muhammad Ayaz Mari, Advocates
Dates of Hearing : 27.04.2026 & 11.05.2026
Date of Judgment : 16.06.2026
Date of Announcement : 19.06.2026
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JUDGMENT
Muhammad Saleem Jessar, J.- By means of instant constitutional petition, the petitioner has challenged Judgment dated 24.02.2025 passed by learned XII-Additional District Judge / Model Civil Appellate Court, Karachi South in First Rent Appeal No.292 of 2024 filed by the petitioner / tenant, whereby he has upheld the eviction order dated 08.10.2024 passed by 1st Senior Civil Judge / Rent Controller, Karachi South in Rent App lication No.442 of 2018 filed by Respondent No.1 / landlord, with certain modifications.
2. Brief facts of the case are; that ejectment application was filed by respondent No.1 viz. Karachi Properties Investment Company (Ltd.) stating therein that the applicant is a limited liability Company, incorporated under the Provisions of Companies Act, 1984, and is owner/landlord of the building, commonly known as “The Hotel Metropole Building”, situated at plot No. 23/1, CL-5, Civil Lines, Club road, Karachi. The opponent is tenant in respect of Shop No. 22, situated in the said building (hereinafter refer red to as demised premises). The monthly rent of the demised premises is Rs. 11438/ -. It was further stated by the applicant that, in order to provide various services and facilities in the said building/tenement, the applicant is incurring an expense of about 1.1 Million per month.
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3. The grievance of the applicant was that the opponent has been in the habit of not paying / tendering monthly rent within the stipulated time as per rent agreement, rather opponent usually delayed the payment of rent deliberately. It was further asserted that the opponent was under a legal obligation to pay the maintenance charges but he willfully neglected and failed to pay the same despite repeated oral and written demands made by the applicant. According to the applicant, i n these circumstances, the opponent was also defaulter in payment of maintenance charges. It was further stated that the opponent avoided to receive the bills, therefore the applicant / landlord was completed to send the same through courier service.
4. It was further averred in the rent application that the opponent has also indulged in certain unlawful and uncalled for activities which have the tendency of seriously impairing the material value and utility of the building. Such activities included; Installing / erecting a stair case at the back side of the Hotel Building; Displaying boards and hoardings and boards of the prohibited size on the parapets of the Building, resultantly the parapet is weakened further; Installing Air -conditioners by placing outers thereof on the parapets of the building without any proper arrangement for drainage of water. Due to this, not only immediate walls and structure of the Building have been damaged, but even the beauty and prestige of this Building has also been ruined; Placing / installing heavy industrial generator at the open space which causes noise, nuisance and pollution and is a serious hazard for other inhabitants of the Building and disrupts the normal functions of other occupiers of the building; Changing col our of the doors of the demised premises without permission of the landlord which is contrary to Management Policy, which has disfigured the good, consistent and likable look of the Building.
5. Upon service of notice, the opponent filed written statemen t, raising therein preliminary objections that the rent application has not been filed through legally authorized person and / or duly constituted attorney, as no Power of Attorney or Authorization Letter, having been issued by the Board of Directors of th e Company, has been filed / produced. It was further objected that the ejectment application has been filed without any cause of action having accrued and that the applicant has come before the Court with unclean hands therefore, the rent application is li able to be dismissed. The
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opponent also claimed that the applicant company is landlord of the building ; however, the applicant is not owner of the building as the building is still in the name of its previous management and its record of rights are not transferred in the name of present management.
6. The opponent further stated in the written statement that, the opponent itself uses to maintain the demised premises, therefore, no question arises for payment of maintenance charges. It was asserted that th e demised premises is situated at the outer side of the building at ground floor, therefore, the opponent was not using lifts ; however, lifts of the building are out of order since long. It was further stated that no outer lights have been installed by the applicant at the tenement and the opponent itself arranged the lights, security and other necessities. It was further asserted that Hotel Metropole Building is at its worst condition, despite that the applicant, instead of maintaining the building, is trying to tease and disturb their tenants with the mala fide intention aims to compel them to leave the building.
7. With regard to alleged default and / or delay in making payment of monthly rent, it was stated in the written statement that the opponent ne ver defaulted and / or delayed payment of monthly rent. According to the opponent, the applicant with mala fide intention instructed its staff not to receive cheque dated 05 -01-2018 in respect of rent amount, therefore, the opponent having no other option, was compelled to send the same through courier service on 23-01-2018.
8. It was averred that the opponent never encroached upon any area of the building. According to him, all the construction, renovation and / or any alteration, have been carried out after obtaining written permission from the applicant / landlord. It was further stated that the outers of the air conditioners are installed on an iron stand on the roof with the written permission of the applicant. According to the opponent, generators were installed / placed by the opponent with permission of the applicant / landlord. It was also stated in the written statement that the applicant used to stop, block and / or disconnect the water of the demised premises very frequently and also used to c ut the electric wires and throw garbage and debris in front of generator, with the mala fide intention to compel the opponent to leave the tenement. According to the opponent, as soon as
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present management took charge of the Hotel Building, they started to tease, harass, create hurdles and develop an environment of discomfort amongst its tenants and lessees. Lastly, it was prayed that the rent application, being not maintainable, may be dismissed.
9. On the pleadings of the parties, 1 st Rent Controller, Karachi South framed the issues relating to willful default by making short payments and delaying the payment of monthly rent, maintenance charges and telephone charges as well as impairing the material value and utility of the premises i n question.
10. After recording evidence of the parties, hearing arguments of their respective advocates, Rent Controller allowed the Rent Case vide Judgment dated 08-10-2024. The opponent / tenant assailed the said judgment by means of filing First Ren t Appeal. The Appellate Court dismissed the appeal vide judgment dated 24.02.2025, hence the tenant / petitioner has filed instant constitutional petition.
11. I have heard the arguments advanced by learned counsel for the parties and have gone through the material made available before me on the record.
12. Learned counsel for the petitioner submitted that courts below have not properly appraised the evidence brought on record and while passing the order / judgment have not property taken into consider ation the factual and legal aspects of the case. It was further submitted that the courts below fell in error by misreading and non -reading the evidence adduced by the parties, thus such order / judgment are liable to be set aside. It was further submitt ed that the rent application was not maintainable, as no power of attorney and / or authorization letter was filed in favour of the person through whom the rent application was filed. It was further submitted that the issues / point involved in instant cas e, have already been dealt with and decided in favour of M/s. Habib Carpets, which was also one of the tenants of respondent No.1 herein in the same building viz. Metropole Hotel, by this Court as well as by Honourable Supreme Court in the cases reported a s Habib Carpets (PVT.) Limited Vs. Karachi Properties Investment Company (PVT.) Limited (KPICPL), (2022 MLD 1754 [Sindh]) and Karachi Properties Investment Company (PVT.) LTD Vs. Habib Carpets (PVT.) Limited, (2024 SCMR 1354) respectively. In this view of the mater, the submission of petitioner‟s
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counsel was; that the dictum laid down by this Court and the Apex Court may be followed and the order / judgment of the courts below may be set aside by allowing instant petition.
13. It was further submitted th at the petitioner / tenant had been paying monthly rent regularly, without any default / delay on his part ; however, the courts below have given their findings on this point on technical ground. It was further submitted that no date was fixed for tenderi ng the rent and the landlord used to accept the rent whenever tendered by the petitioner, even with delay, as such, by his conduct, he waived his right of filing ejectment application on the ground of default / delay in payment of rent. It was further sub mitted that the courts below did not take into consideration the provision as provided under Section 15(2)(ii) of SRPO, 1979, rent could be tendered within sixty days after the same has become payable, therefore, according to him, the petitioner / tenant c ould have tendered rent for the months of February and March, 2018 in May and June, 2018 respectively, as such the finding of the courts below relating to said default was contrary to this legal position. It was further submitted that the Rent Controller h as exceeded his jurisdiction while allowing rent application by considering the default / delay in payment of rent allegedly committed by the petitioner in respect of the months of May, June and July, 2020 i.e. during proceedings of the rent application although there was no such pleading or prayer in the rent application.
14. With regard to alleged default in payment of maintenance, it was submitted that from the very beginning of tenancy, all the tenants used to maintain their tenements themselves, therefore, the demand of the respondent / landlord for payment of maintenance charges has no bearing, at all. It was vehemently denied that the petitioner / tenant ever encroached upon any area of the building, rather, all the construction, renovation or alter ation had been carried out after obtaining prior written permission from the respondent / landlord. It was further submitted that no display board has been affixed on parapets, instead the same has been affixed on the shed. It was denied that the outers of the air conditioners have been installed / affixed on parapets, rather the same have been installed on an iron stand on the roof. It was further submitted that all such works were carried out with written permission of the respondent / landlord and eve n the generator has been installed / placed
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after obtaining permission from the landlord. According to learned counsel, while passing the order / judgment, the courts below did not properly deal with the aforesaid aspects of the case and their findings are based on misreading / non-reading of the evidence brought on record. Learned counsel prayed for allowing instant petition and setting aside of the order / judgment passed by the courts below.
15. On the other hand, learned counsel for respondent No. 1 / landlord supported the order / judgment passed by the Courts below and submitted that the same have been passed in accordance with the law after properly evaluating / appraising the evidence adduced by the parties, therefore the same do not warrant any interference by this court in exercise of its constitutional jurisdiction. It was further submitted that the petitioner / tenant not only committed default in the payment of monthly rent but also made short payment in respect of the rent for the months of February, 2018 and March, 2018. It was further submitted that the courts below have also properly appraised the evidence in respect of the issue of impairment of material value and utility of the demised premises and their findings on the issue / point are in accordance with the law and according to the evidence of the parties, therefore, the same are not required to be interfered with by this court. It was further submitted that it is the settled principal of law that concurrent findings of facts of the courts below cannot be interfered by this court in exercise of its extra-ordinary constitutional jurisdiction. Learned counsel prayed that the petition, being devoid of merit is not maintainable, hence it may be dismissed.
16. In the first instance, I intend to deal with the issue / point of default / delay in payment of monthly rent. From perusal of the agreement dated 01.05.2006, it seems that initially the monthly rent of the demised premises was fix ed at Rs. 11438/- which was to be paid by the petitioner / tenant in advance. However, the opponent / tenant started to pay the monthly rent of Rs. 10398/ - in respect of demised premises i.e. shop No. 22. Besides, the petitioner / tenant also committed delay in payment of rent for certain months. According to the respondent / landlord, the rent for the month of August, 2017 was paid with delay of 10 days, wh ile delay of one day occurred in respect of rent for the month of September, 2017, rent for the month of October-2017 was paid after a delay of five days, while the rent for November, 2017 was paid after five days. Likewise, seven days delay was committed
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while paying rent for the month of December, 2017 and twenty six (26) days in the month of January, 2018. It was further asserted that normally, the opponent / tenant never paid / tendered the rent within specified time and used to pay the same with delay.
17. The stand taken by the opponent / tenant is; that as the applicant / landlord used to receive the rent from the opponent / tenant with delay, therefore, by his conduct he has waived his right to seek ejectment of the opponent. I cannot subscribe t o such submission made on behalf of the petitioner / tenant as, under the law, a tenant is bound to pay / tender the rent within the stipulated time. In this connection, reference may be made to the case of Wasif Ahmed Jalali Vs. Ghazala Iqbal , reported in 1996 MLD 1733 Karachi, wherein this Court held as under:
“In the instant case there is no evidence from the side of appellant that the respondent waived abandoned his right to file ejectment application against him either expressly or by his conduct. It would appear that soon after the acceptance of cheques in respect of the rent, the respondent filed eviction application against the appellant, and therefore, there could not be waiver on the part of the respondent in favour of the appellant so far his ri ght to file eviction application under the law. Accordingly, the said contention of learned counsel has no merit and substance.”
18. Besides above, it is now well settled that if a landlord appears in the witness box and states on oath that the tenant has not made payment of the monthly rent within the stipulated time and that he has committed default in payment of rent, then he would be deemed to have discharged successfully the burden which lies upon his shoulder under the law, and then onus shifts to th e tenant to prove affirmatively that he has been paying monthly rent regularly and that he has not committed any default and / or delay in payment of rent.
19. In order to fortify above view, I may refer to a decision given by a Full Bench of Honourable Supreme Court in the case of ALLAH DIN Vs. HABIB, reported in PLD 1982 SC 465, wherein it was held as under:
“It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him, as required by section 13 (2) (i) of the Sind Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non -payment of rent is a negative fact,
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therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question.”
20. Reliance, in this connection, can also be placed upon the cases of Mrs. Asma Makhdoom Vs. Mrs.Yasmeen Azam (2018 MLD 976 ) and Mohammad Siddique Vs. Mohammad Riaz (2013 YLR 1200 Sindh).
21. Scanning the instant case in the light of above legal proposition, it seems that authorized person of the respondent / landlord namely, Junaid Ahmed, remained firm and consistent even during his cross -examination and the petitioner‟s counsel could not shat ter his evidence and / or put any loopholes therein.
22. It is also evident from the record that the petitioner / tenant was consistently paying monthly rent in advance before 5th of each calendar month from August, 2017 to January 2018 ; however, he disc ontinued such practice from February, 2018. It seems that in his affidavit -in-evidence, so also during his cross -examination, authorized person of the respondent / landlord deposed in categorical terms that the opponent / tenant had committed default in pa yment of monthly rent and also made short payments and committed delay in payment of rent for few months.
23. However, perusal of the record shows that the opponent / tenant, in response to such allegation relating to default / delay in the payment of re nt, made on oath by the respondent / landlord, has made only a general and vague statement that he always used to pay the rent in time without any default and delay and that he always paid the rent in time and never committed any default.
24. In this view of the mater, it is apparent that the petitioner / tenant miserably failed to fulfill his obligation to prove that he has not committed any default in payment of rent, nor made any short payment and / or committed delay towards payment of monthly rent.
25. A plea was also raised on behalf of the petitioner / tenant that the Rent Controller exceeded his jurisdiction while taking into consideration the
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alleged default / delay in payment of rents for the months of May, June and July, 2020 i.e. during the proceedings of rent case, although there was no such pleading, nor was there any such prayer in the ejectment application. According to petitioner‟s counsel, without any amendment having been made in the pleading under Order VI Rule 17 C.P.C. and without making any prayer for future rent by the respondent / landlord, the Rent Controller was not authorized to allow the rent application on the basis of non-pleaded factum.
26. From perusal of judgment dated 08 -10-2024 passed by the Rent Controller, it seems that the Rent Controller has declared the petitioner to have committed default in payment of rents for certain period during proceedings of rent case i.e. after filing of ejectment application on 06.04.2018. In this connection, suffice it to observe that filing of an ejectment application by the landlord, does not absolve the tenant of his obligation to pay monthly rent regularly. The law does not permit a tenant to withhold payment of rent on the ground that the landlord has filed an ejectment application . Even, if default in payment of rent, which occurred subsequent to filing of ejectment application, has not been pleaded or prayed for in the rent application, the same would be fatal to the case of the tenant.
27. It is now well settled that the Rent C ontroller can take notice of the events taking place during the course of rent proceedings, after the institution of an ejectment application by suitably molding the relief on the basis of altered circumstances / subsequent events in order to avoid multipl icity of litigation and shorten the litigation.
28. The Rent Controller by invoking aforesaid principle of molding the relief, has also found the petitioner / tenant to have committed default in payment of rent for the period after filing of ejectment application. Besides, from perusal of the record, it seems that petitioner‟s authorized officer admitted in his cross examination that petitioner / tenant has not produced any document showing that the petitioner has paid the rent to Respondent / landlord even for the months of January, 2020 to April, 2020.
29. In this connection, reference may be made to the case of Muhammad Farooq Vs. Mst.Khairun Nisa (1994 CLC 322 Karachi), wherein this Court held:
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“6. It was pointed out by the learned counsel for the respondent that apart from the default in the payment of rent for the period June 1989 to November 1989, which was made a ground for the eviction of the respondent as per para 2 of the ejectment application, the appellant had also committed default for the subsequent period commencing from December 1989 and up to May 1990. Learned counsel for the appellant had no answer to this assertion of the learned counsel for the respondent/landlady and conce ded that the rent for this period had not been either paid or tendered to the respondent/landlady but he argued that rent for this period had been deposited in Court in furtherance of the order dated 14.5. 1990 passed by the learned Rent Controller under s ection 16(1) of the Ordinance. In my view, deposit of rent in Court in furtherance of the order passed under section 16(1) of the Ordinance is no defence. The appellant/tenant was not supposed to remain idle and await the passing of the order under section 16(1) of the Ordinance. Notwithstanding the filing of the rent case, it was the duty of the appellant/tenant to tender rent in accordance with law, i.e., in terms of Section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979. The appellant is, therefore, liable to be evicted on the ground of default for this period as well.”
30. In another case reported as Muhammad Asif and another Vs. The Vth Additional District Judge and 2 others (2017 CLC Note 201), it was held as under:
“13. The learned counsel submitted that the learned Appellate Court has given a verdict regarding non -pleaded default, which is not lawful. He contended that if the respondent did not take the ground of default in pleadings and there is no prayer on this account, then no relief could be granted. In this respect, he took reliance from the case reported as Muhammad Yousuf v. Muhammad Hassan (1980 CLC 1414) and Abdul Rasheed v. Muhammad Akhter (1980 CLC 1141). On the other hand, the contention of learned counsel for the respondent is that the default has taken place after filing of rent case as after rent case, they stopped payment of rent. According to him, this fact has come on the record as such an order for ejectment can be passed on this score also. It is an admitted position that in the rent application there was no allegation of default as…
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