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Petitioner: MUHAMMAD ESSA GODIL through L.Rs.s VS Respondent: Mst. SITARA JAMIL and 2 otherss
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: MUHAMMAD ESSA GODIL through L.Rs.s vs Mst. SITARA JAMIL and 2 otherss Case No.: Constitution Petition No.809 of 2009 Date of Judgment:2014-02-07 Reported As: 2014 YLR 1901 Result: Petition dismissed
JUDGMENT
JUDGMENT ' AZIZ-UR-REHMAN, J-- Through this writ petition the legal heirs of Muhammad Essa Godil [since deceased] upon feeling aggrieved and dissatisfied with Judgment dated 29-8-2009 passed by 2nd Addl. District and Sessions Judge, Karachi, South in F.R.A. No.43 of 2007 [Muhammad Essa Godil [Deceased] through his legal heirs v. Mst. Sitara Jamil] whereby while he upholding the order dated 30-5-2006 passed by the Xth Sr. Civil Judge and Rent Controller, Karachi, South, in Rent Case No.1632 of 2000 [Mst. Sitara Jamil v. Muhammad Essa Godil [deceased] through his legal heirs] whereby the learned Rent Controller had allowed the ejectment application filed by the respondent No.1 against the petitioners was pleased to dismiss F.R.A. No.43 of 2007, have assailed the aforesaid judgment/order with prayer for setting aside the same and allowing the instant petition. 2. Brief and relevant facts of the case in the background. 3. Respondent io.1 [hereinafter means the landlady] is one of the co-owners of Plot No.209 AM, Saddar, Karachi as well as shops and flats constructed thereon [known as 'Mumtaz Mansion']. Originally, it appears that [late] Ramzan Muhammad son of Imamuddin was the owner of the 'Mumtaz Mansion' who sold the said property to [late] Mst. Zahoor Fatima wife of [late] Ch. Muhammad Jameel including Flats Nos.1 and 2, situated on the First Floor [hereinafter means 'demised premises'] of 'Mumtaz Mansion'. The respondent No.1, is one of the legal heirs of [late] Mst. Zahoor Fatima. 4. Regarding such sale of the property, dispute arose between [late] Ramzan Muhammad and [late] Mst. Zahoor Fatima whereupon the vendor [late] Ramzan Muhammad filed a Civil Suit No.194 of 1972 against the vendee, [Mst. Zahoor Fatima] amongst others for declaration and cancellation of sale deed dated 13-3-1972'before this court. The aforesaid suit, nonetheless, was dismissed vide
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judgment dated 22-5-1984. Against such judgment and decree, [late] Ramzan Muhammad thereafter had preferred HCA No.72 of 1984 which upon hearing was dismissed vide short order dated 20-10-1992. Reasons for the short order were later-on recorded on 13-2-1993. The operative part of the detailed order reads as follows:-- "All the above-mentioned facts and circumstances prove that Ramzan Muhammad had signed the above-described documents knowing their contents and that there had remained nothing for the respondent Ch. Muhammad Jamil to prove. The learned Single Judge had, on appraisal of the evidence, arrived at correct conclusion and we have no reason to disagree with him. ' For the foregoing reasons we dismiss this appeal." 5. Against the aforesaid judgment passed in H.C.A. No.72 of 1982 [Ramzan Muhammad [since deceased] through his legal heirs] filed Civil Petition No.124-K of 1993 before Hon'ble Supreme Court of Pakistan but Hon'ble Supreme Court of Pakistan while, refusing leave to appeal, was also pleased to dismiss the same on 30-5-1993. The operative part of order dated 30-5-1993 reads as follows:-- "5. We are unable to find any flaw or legal infirmity in the reasoning adopted by the Division Bench of the High Court in the process of evaluation of evidence. No interference is called for and in the result leave is refused and this petition is dismissed as having no merits." 6. Upon purchase of the building ['Mumtaz Mansion' ] through registered sale deed the original tenant viz. Muhammad Essa Godil was informed/ intimated vide notice/letter dated 12-1-1972 about such purchase of 'Mumtaz Mansion' and inter alia was asked to pay rent to the new landlady/owner viz. Mst. Zahoor Fatima through her husband viz. Alhaj Ch. Muhammad Jameel as her duly constituted attorney. 7. Despite such request/demand, the original tenant [husband of petitioner No.1 and father of the other petitioners], failed and/or avoided to pay the rent/dues as requested. Under such circumstances, vide legal notice dated 24-3-1972, sent through registered post A/D, the tenant was called upon to make the payment of arrears/ current dues within three days of the receipt of notice failing which owner [landlady] would be constrained to file legal proceedings for the ejectment and recovery of rent. Through the aforesaid legal notice inter alia the tenant was also called upon to note that Mr. Ramzan Muhammad [vendor] or any person claiming through or under him has no right, title or interest left in the property ['Mumtaz Mansion'] and any nerson dealing with him, shall do this at his own risk and costs. Despite, receiving of the aforesaid legal notice/letter the tenant nevertheless, failed and/or avoided to comply with the instructions given/demand made upon him. Upon failure of the tenant, Rent Case No.759 of 1994, was filed in the Court of 1st Senior Civil Judge & Rent Controller, Karachi, South, on 8-4-1994 on two grounds i.e. 'wilful default' and 'personal bona fide need' of Respondent No.1 for her young son of marriageable age. 8. Upon service in the year 1996, the petitioner No.1 did appear in the afore-said rent case and after long long delaying tactics, she ultimately disclosed the death of her husband [Muhammad Essa Godil] on 19-12-1993 i.e. Sometime before filing of the rent case. Upon such disclosure, an application under Order I, Rule 10, C.P.C. Was filed for impleading/joining of the legal heirs of tenant [late] Muhammad Essa Godil. Such application was seriously contested/opposed by the petitioner No.1 by way of filing 'counter-affidavit' thereto. On hearing, nevertheless, the said application under Order I, Rule 10, C.P.C. Was dismissed vide order dated 11-4-2000. The operative part of order dated 11-4-2000 passed by IXth Senior Civil Judge, Karachi South, reads as follows:-- "It appears that applicants had filed this ejectment application against a dead person which is nullity in the eyes of law and thus this ejectment application is not maintainable and liable to be dismissed. I therefore accordingly dismissed the application in hand as well as main ejectment application of this case, with no order as to cost however applicants would be at liberty to file fresh ejectment application against the legal heirs of opponent deceased Muhammad Essa and Godil before the court having jurisdiction." [Underlining is mine].
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9. Upon dismissal of the earlier Rent Case, bearing No.795 of 1994 on 11-4-2000, fresh Rent Case No.1632 of 2000 [Mst. Sitara Jameel v. Muhammad Essa Godil through his LRs.] under section of 15 of SRPO, 1979 for ejectment of the Petitioners [tenants] was filed on 30-5-2000 in the court of VIIIth Senior Civil Judge/Rent Controller, Karachi, South, on the grounds of 'wilful default' regarding 'non- payment of rent' in respect of the 'demised premises' [i.e. Flats No.1&2 situated on the 1st Floor of 'Mumtaz Mansion' standing on Plot No.209 AM, Saddar, Karachi] as well as on the ground of bona fide need/requirement of the 'demised premises' for her son whose marriage was being delayed due to non-availability of sufficient and independent accommodation. 10. Upon service, the legal heirs of [late] Muhammad Essa Godil, filed their written statement, wherein inter alia it was clearly admitted that [late] Muhammad Essa Godil was a tenant in respect of two Flats Nos.1 and 2, First Floor of 'Mumtaz Mansion' standing on Plot No.209 AM, Saddar, Karachi @ Rs.75 per month for each flat [total Rs.150 only per month for both the flats]. 11. Per averments, the said two flats. ['demised premises'] were, indeed, rented out to Muhammad Essa Godil [husband of petitioner No.1 and father of the other petitioners] however, by the previous owner [landlord] namely Ramzan Muhammad under the tenancy agreement dated 15-12-1969. The filing of the Rent Case No.759/94, against [late] Muhammad Essa Godil in respect of the 'demised premises' and 'dismissal' thereof, was not denied. However, it was averred in the written statement that the respondent No.1 is not the 'exclusive owner' of the 'Mumtaz Mansion' where the 'demised premises' are situated. Per averments, the Rent Case No.1632 of 2000 filed by respondent No.1 is without permission/consent of the other legal heirs of deceased owner viz. Mst. Zahoor Fatima, [mother of respondent No.1], thus being incompetent was liable to be dismissed. 12. The allegations of 'wilful default' in payment of monthly agreed rent and/or 'bona fide need'/'requirement' of the 'demised premises' as pleaded by respondent No.1, was also denied. Per stand taken by the 'Petitioners, rent was offered but it was not accepted by respondent No.1 [landlady]. Per averments, the rent on such refusal is being deposited in MRC No.352 of 1994 in the Court of 1st Senior Civil Judge and Rent Controller, Karachi, South. The permission for filing of 'fresh rent case' by IXth Senior Civil Judge and Rent Controller, Karachi, South was also forcefully denied. 13. The receiving of letters dated 12-1-1972 and 24-3-1972 was not denied, but per averments, they were stated to be replied vide letters dated 21-1-1972 and 6-3-1972 respectively. The arising of 'cause of action' in favour of respondent No.1 [landlady] regarding filing of Rent Case No.1632 of 2000 [Sitara Jameel v. Muhammad Essa Godil], was, also vehemently denied. 14. In view of the controversial pleas raised, both parties led their evidence. The attorney of the respondent viz. Pervez Iqbal Khan filed his 'affidavit-in-evidence' as Exh. 'A'. The said witness was also 'cross examined' by the learned counsel for the petitioners and upon conclusion of evidence, respondent No.l's side was closed on 28-3-2002. From the petitioners' side, their attorney viz. Muhammad Siddique, thereafter filed his 'affidavit-in-evidence' as Exh. 'Oil'. The said witness also produced tenancy agreement as Exh. '0/1/A', certified true copy of rent case as Exh.'0/1/B', statement of rent paid as Exh. '0/1/B' to '0/1/C', rent receipt deposited in MRC as Exh.'0/1/Ds, letter of Excise and Taxation as Exh.'0/1/E', property and water tax paid by him as Exh.0/1/F, letter dated 8-11- 1993 as Exh.'0/1/G', letter dated 15-9-1193 Exh. '0/1/H', certificate of post office receipt and coupon of money order as Exh. '0/I/I' and special power of attorney as Exh.'0/1/J. Thereafter the witness wa. 'cross-examinec by learned counsel `...Or respondent No.1 [landlady] whereafter the side of the petitioners was also closed 15-4-2006. 15. The points framed for determination by learned Xth Senior Civil Judge and Rent Controller, Karachi, South, upon transfer of Rent Case No. 1632 of 2000 , filed under section 15 of SRPO, 1979, [Mst. Sitara Jameel v. [late] Muhammad Essa Godil] from the 'Court of VIIIth Senior Civil Judge and Rent Controller, Karachi, South, for disposal of the case, read as follows:-- (1) Whether the opponent has committed wilful default in payment of rent?
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(2) Whether the applicant requires the flats in questions for personal use of her son namely Shahid Iqbal in bona fide good faith? (3) What should the order be? 16. After hearing the arguments advanced by the learned counsel for the parties, Xth Senior Civil Judge and Rent Controller, Karachi, South, upon reaching the conclusion, under points Nos.1 and 2 that the petitioners [tenants] have committed 'wilful default' and 'demised premises' are also required by respondent No.1 [landlady] bona fidely, was pleased to allow the Rent Case No.1632 of 2000 under point No.3. The operative part of Order dated 22-1-2007 under points No.3 reads as follows 'POINT NO.3 ' In view of above discussion on Points Nos.1 and 2 I am of the opinion that the applicant has proved his case against the opponent. Therefore, opponent is directed to vacate the case premises and hand over its peaceful, physical possession to the applicant within 30 days from the date of this order." 17. The petitioners upon feeling aggrieved, impugned the aforesaid order through filing of F.R.A. No.43 of 2007 [Muhammad. Essa Godil through his legal heirs v. Mst. Sitara Jameel] under section 21 SRPO, 1979 with the following prayer:-- "It is respectfully prayed, on behalf of the above named appellant, that this Hon'ble Court may be pleased to call the R & P of the Rent Case No.1632 of 2000 filed by the respondent against the appellants above named, and set aside the impugned order passed on 22-1-2007 against the appellants in the larger interest of justice and equity. ' Any other relief(s) which this Hon'ble Court may deem fit in and proper under the circumstances of the case." 18. On hearing of arguments, the learned 2nd District and Sessions Judge, Karachi, South, upon founding the same as devoid of any merits was pleased to dismiss F.R.A. No.43 of 2007 [Muhammad Essa Godil through his legal heirs v. Mst. Sitara Jameel] on 29-8-2009. The operative part of order dated 29-8-2009 passed by the learned appellate court reads as follows:- "In view of the above admission, I am of the opinion that the appellant/opponent has committed default in payment of rent, therefore, I am of the view that learned Rent Controller has rightly decided the point of default in affirmative. So far the personal requirement is concerned it is held by our superior courts that it is upon the landlord to choose the tenement for his personal use. The respondent/applicant has produced sufficient/material before the learned trial court for his personal requirement. On the other hand the appellant has miserably failed to prove that respondent/applicant did not require the premises in question for her son. In view of my above discussion I am of the opinion that learned R/C has rightly allowed the ejectment application and directed the appellant/opponent to vacate the premises in question. I found no merits in the appeal, hence the same is hereby dismissed accordingly. However the appellant is directed to vacate the premises in question within 90 days from the date of this order and hand over its possession to respondent/landlord." [Underlining is mine]. 19. Against the aforesaid order, the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred in this court with a prayer for setting aside the judgment/order passed by the courts below and allowing the petition accordingly. 20. On 16-12-2013, when the case came up before me, I heard Mrs. Zubaida. Moton along with Uzma Yousuf, learned counsel for the petitioners and Mr. Muhammad Yaseen Azad, learned counsel for respondent No.1 and with their valuable assistance, have also gone through the available record before me. 21. Mrs. Zubeda Moton, learned counsel for the petitioners vehemently argued that both the courts below have failed to appreciate, that the Rent Case No.1632 of 2000 [Mst. Sitara Jamil v.
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Muhammad Essa Godil [deceased] through his legal heirs] filed by one of the legal heirs of [late] Mst. Zahoor Fatima, was not only incompetent but also not maintainable under law. Per learned counsel, the case as framed and filed without joining of the other legal heirs, no doubt, is liable to be dismissed with cost. Mrs. Zubeda Moton, further contended that neither [late] Muhammad Essa Godil [husband of petitioner No.1/father of the other petitioners], nor the petitioners themselves had ever committed any 'wilful default' in payment of the agreed monthly rent. 22. Learned counsel further contended that the 'demised premises' was never required muchless bonafidely by the respondent No. 1. Per learned counsel, both the learned courts below have not only failed to appreciate the factum of old tenancy i.e. Since, 1969 but have also failed to hold that there was no 'default' in payment of rent. The rent, no doubt, was offered to the landlady but was refused. Per learned counsel the rent is being deposited in MRC No.352 of 1994 regularly. Learned counsel, further urged that the orders/ judgments passed by the both the courts below besides erroneous having been passed without properly appreciating the evidence. 23. Mrs. Zubeda Moton, learned counsel for petitioners' further urged that the mother of respondent No.1 [late Mst. Zahoor Fatima] was not the owner of 'Mumtaz Mansion' where the 'demised premises' [2 flats] are situated. She further contended that at the time of taking the flats on rent huge amount was paid to the previous owner viz. [late] Ramzan Muhammad. Per learned counsel, reason for fixing the 'minimum rent' is obviously on account of such payment of huge amounts to the previous owner. Per learned counsel, an amount of Rs.38,800 [Rupees Thirty Eight Thousand and Eight Hundred only] is still due against the previous owner. Per learned counsel there is no arrears of rent or dues outstanding against the petitioners. 24. Learned counsel for petitioners, further urged that since, 1969 the 'demised premises' is in continuous possession of the petitioners, under tenancy agreement of 15-1-1969. Being old tenants cannot be evicted on the grounds of default and/or bona fide requirement of the 'demised premises', if any. Per learned counsel the advance amount of Rs.60,000 [Rupees Sixty Thousand only] for both the Flats under tenancy agreement dated 15-1-1969 be deemed converted automatically into 'possession value' i.e. 'Pugree' of the 'demised premises'. According to the learned counsel, the petitioners are not liable to be evicted from the 'demised premises' at the whims of the respondent No.1 [landlady] in view of the 'Pugree' paid to the old landlord/Owner viz. Ramzan Muhammad. 25. Against this, Mr. Muhammad Yaseen Azad, learned counsel for respondent No.1 vehemently argued that the petitioners besides 'wilful defaulter' are liable to be ejected from the 'demised premises' on the ground of personal 'bona fide need'. Mr. Muhammad Yaseen Azad, learned counsel for respondent No.1 further argued that, no doubt, Rent Case No.759 of 1994 was dismissed vide order dated 11-4-2000 passed by IXth Senior Civil Judge, Karachi, South, but permission/ liberty was given to respondent No.1 to file 'fresh ejectment application' against L.Rs. Of [late] Muhammad Essa Godil. Learned counsel further contended, that despite service of legal notice upon the tenants through registered post A/D dated 12-1-1972 and information/intimation therein to the effect that the building ['Mumtaz Mansion'] had been purchased by respondent No. l's mother [Mst. Zahoor Fatima] from previous owner [Ramzan Muhammad] and the tenancy thereof had been attorned in her favour, the tenants, failed and/or avoided to pay the rent. Once again the tenants were requested to pay the rent to the new owners, but the petitioners [tenants] in their own wisdom did not pay any heed to such requests/demands. Such being the position, the petitioners committed 'wilful default' in payment of rent. Not only this, even the previous owner Ramzan Muhammad on 12-1-1972 had also intimated the tenants in the 'demised premises' about the 'sale transaction' of the property ['Mumtaz Mansion] and handing over possession thereof to Mst. Zahoor
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Fatima. Under circumstances, per learned counsel, the petitioners/[late] Muhammad Essa Godil should not have avoided/refused the payment of rent to new landlord/owner. 26. Per learned counsel, the averments made in the ejectment application regarding 'personal bona fide need' of the respondent No.1 for her son could not be denied much-less through evasive denials. The son of respondent No.1 [landlady] was young and of marriageable age but his marriage was delayed on account of non-availability of suitable accommodation. The son of respondent No.1, indeed, was living in two bedded apartment along with six family members. Under circumstances, per learned counsel, respondent No.1 required the 'demised premises' bonafidely. The need of the respondent No.1 was not only bona fide but also based on good faith. As such both the learned courts below concurrently decided the case in favour of the respondent No.1 which needs no interference under the Constitutional jurisdiction of this Court. 27. The attorney [husband of respondent No.1] has not only deposed that the Petitioners had/have committed 'wilful default' in payment of monthly rent but had/have also deposed that the 'demised premises' are required bonafidely for the use of her son. During the 'cross-examination' , the petitioners' side, badly failed to shake the evidence of respondent's witness vis-a-vis commission of 'wilful default' in payment of rent and/or personal bona fide need'. 28. Per learned counsel as far as the alleged amount of 'Pugree' is concerned, the same has no legal sanctity behind it and the same, if any, paid to the old landlord/owner sometime, in the year, 1969 besides being not refundable cannot be adjusted against the liability of rent payable to the new landlord [owner] who purchased the building [Mumtaz Mansion'] where the 'demised premises' i.e. 02 Flats are situated. Even otherwise, learned counsel further contended, that the Rent Controller has no jurisdiction to get the 'pugree amount' adjusted at his will against the rent due to the new landlord/owner. 29. Mr. Muhammad Yaseen Azad, learned counsel for respondent No.1 vehemently argued that in the evidence `wilful default' on the part of the petitioners has been fully proved. It is the admitted position on record that the 'default' in payment of rent has been committed. Per learned counsel for respondent No.1, the trial court as well as appellate court have rightly allowed the ejectment application on the grounds of 'wilful default' in payment of rent as well as 'bona fide need' of respondent No.1 [landlady or her son]. The respondent No.1 has successfully discharged her burden of proving the case vis-a-vis 'wilful default' and personal bonafide need. Per Mr. Muhammad Yaseen Azad, the concurrent findings passed by the courts below are valid, proper and have been passed after proper appreciation of evidence thus need no interference much-less under the Constitutional jurisdiction of High Court. 30. Heard and record perused. 31. Before proceeding further the two letters sent to and admittedly received by petitioners predecessor viz Muhammad Essa Godil [the original tenant allegedly died on 19-12-1993] as being relevant are reproduced hereinbelow:-- 32. {{TABLE}} A. "REGD WITH A/D KARACHI 12th Jan, 72 To, 1. Eastern & West Optical Service, 2. Rana Radoo 7. Manna 3. Zafar Sahib 8. Muhammad Shafi Ghulam Samdani 9. Chaudhri Hashmat Ali, Muhammad Ali, 10. Iqbal Brothers, Sadiq Ali, 11. Muhammad Esa 12. Shaikh Mohd.Rafiq 209-A.M. Karachi
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'Dear Sir, ' Under instructions from our clientess Mst. Zahoor Fatima, purchaser of building on Plot No.209- A.M. Karachi we have to address you as under: (1) That our clientess has purchased the building on Plot No.209 A.M. From Ramzan son of Imam Din and has attorned your tenancy in favour of our clientess who alone shall hereinafter be entitled to receive rent, issue receipts and deal with the property which you may kindly, note. (2) That our clientess's husband Alhaj Chaudhri Mohd.Jamil holds full General Power of Attorney who will be managing and looking after the property. (3) You are therefore, requested, to call upon our client on the following address and show your papers for confirmation of your tenancy and hereinafter pay the rent and dues who shall issue you proper receipt. [Underlining is mine]. Thanking you, Yours faithfully, For MOHD.MOHSIN SIDDIQUI & CO., ADVOCATES Jamil Super Market 262-A.M Behind Sadar Cooperative Market, Saddar, Karachi." B. "REGD WITH A/D Muhammad Essa Godil Resident of Flat No.1 & 2, First Floor Mamtaz Mansion 209 A.M. Karachi KARACHI 24-3-1973 ' Dear Sir, ' Under instructions from our client Mst. Zahoor Fatima, Purchaser of building on Plot No.209 A.M. We have to address you as under:- (1) That as already intimated by our letter dated 12th January, 1972 on behalf of our client that our client is the sole ad exclusive owner of the building in which you are occupying premises No. Flat Nos.1 & 2 and all the formalities have been complied with. (2) That Mr. Ramzan by his letter dated 12th January, 72 has attorned the tenancy ad duly intimated you tat in pursuance of the aforesaid notice you have not paid rent for the month/s of January, February and March, 1972. (3) That under this notice you are called upon to make payment of the arrears as well as the current dues within 3 days of the receipt of this notice failing which our client shall be compelled to take legal proceedings for ejectment and recovery of rent at our sole risk as to cost and consequences. You may further note that Mr. Ramzan or any person claiming through or under him has no right, title or interest left in the property…
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