PLJ 2016 Islamabad
Present: Muhammad
Anwar Khan Kasi, C.J.
NADEEM
YOUNAS--Petitioner
versus
ADDITIONAL
DISTRICT JUDGE & 3 others --Respondents
W.P. No.
1598 of 2015, decided on 25.11.2015.
----S. 19--Constitution of Pakistan
M/s. Abdul Shakoor Paracha & Haseeb Shakoor Paracha, Advocates for Petitioner.
Mian Abdur
Razzaq,
learned ASC for Respondents.
Date of hearing: 27.10.2015.
Judgment
This Writ Petition as well as W.P. 4754/2014 arise
out of common set of facts and demised premises, therefore, they are decided
through this Single Judgment.
2. Brief facts of the
case are that Respondents 3 & 4 filed application for eviction of
petitioner/tenant (Nadeem Younas)
from Shop No. 2 Ground Floor Block No 13-J, Khan Plaza, Jinnah Super Market, Markaz F-7, Islamabad. It was claimed that demised premises
were rented out to the petitioner by previous owners namely Muhammad Miskeen & Mrs. Nazia Shaheen from whom applicants purchased the same through
registered Sale-Deeds No. 4714, 4715 & 1404 dated 24.10.2012 & 22.03.2012
executed by the Attorney i.e Muhammad Qasim. The eviction was sought on the grounds of expiry of
lease agreement and default in the payment of rent since 1.11.2011, moreover
personal need was also agitated. Respondents 3 & 4 alleged that they had issued
notice dated 4.11.2012 whereby change in ownership was intimated and possession
as well as arrears of rent were demanded while the notice was shown to have
been received by the employee of petitioner/tenant namely Waqar.
Initially the Eviction petition was entrusted to Mr. Naseer
Ahmed Kakar, learned Rent Controller but
subsequently, tenant moved application for transfer of proceedings which was
allowed vide Order dated 20.06.2013,
passed by the learned District Judge whereby it was also directed that eviction
petition be disposed of within one month, the latter portion of Order was
assailed in W.P. No. 2784/2013 and vide Order
dated 01.07.2013 passed by the learned Bench of this Court the Order dated
20.06.2013 was modified by directing that matter be decided on its merits
without giving unnecessary adjournments.
3. After transfer of
proceedings, tenant/petitioner submitted reply to eviction petition wherein, inter alia, he denied receipt of
ownership change notice and raising objection upon his impleadment
refused existence of Landlord & Tenant relationship by asserting that no
lease agreement was executed between the petitioner and previous owners. He
denied to be the tenant, albeit, in evasive manner.
4. Learned trial Court
framed following two issues out of divergent pleadings;
(i) Whether
there exists relationship of landlord and tenant between the parties
? OPA
(ii) Relief.
5. After framing of
issues Eviction petitioner produced his evidence and Respondent No. 4 appeared
as AW-1, who tendered his statement in shape of Affidavit Ex.A-1. He also
produced Photostat Copy of Ownership change notice Es.A-2,
TCS receipt Ex.A-3, Photostat Copy of Delivery Report as Ex.A-4, Photostat
Copies of Sale Deeds as EX.A-5& A-6, Photostat Copy of telephone bill as
Mark-A and Photostat Copy of Metro Group as Mark-B.
6. The case remained
pending for Cross Examination but on several occasions petitioner failed to
appear before Court whereupon vide order
dated 05.06.2014 his right to cross-examine was struck off and after hearing
arguments learned trial Court vide Judgment
dated 25.06.2014 accepted the eviction petition.
7. Against the
aforementioned Judgment Appeal was filed before learned District Court and
during its pendency one Jehan Zeb
Nadeem who happens to be son of petitioner-Nadeem Younas, moved application
for his impleadment as party by asserting that he is
actual tenant of the demised premises because previous owners entered into
lease agreement with him but the new owners [Respondents 3 & 4] have moved
the collusive eviction petition against another person Nadeem
Younas [father of intervener] purportedly in order to
undermine his rights. This application was contested through reply wherein
relying upon local commission report it was asserted that Nadeem
Younas is running “Stiletto” Shoe Shop in two
adjacent Shop Nos. 1 & 2 by removing the middle wall of the shops and said Nadeem Younas had mentioned his
address as Shop No. 2 in previous proceedings i.e
Transfer Application and W.P. No. 2784/13 but in order to protract the
litigation, the father and son crafted a story without disclosing source of
knowledge about appeal as if both had not been sharing common interest. Learned
Appellate Court vide Order dated
14.10.2014 rejected the impleadment application. This
order has been assailed vide connected
W.P. No. 4754 of 2014.
8. Thereafter pursuant
to conceding statement of eviction petitioner the learned Appellate Court vide judgment dated 1.11.2014 set aside
the eviction judgment dated 25.6.2014 and remanded the case to learned Rent
Controller for decision afresh within one month after providing opportunity of
cross-examination & production of evidence to tenant/Nadeem
Younas.
9. In post remand
proceedings petitioner [Tenant] Cross examined the Respondent No. 4 and moved
an application for summoning of proposed witnesses i.e
previous owner Muhammad Miskeen, Muhammad Saeed, CDA record Keeper, Post Office Record Keeper and
Record Keeper Registrar Office Islamabad. This application was dismissed by
learned Rent Controller vide order
dated 08.12.2014 and thereafter the tenant/petitioner again defaulted to
produce defense evidence, resultantly on 07.01.2015 learned Rent Controller
closed his right to produce evidence and finally vide Judgment dated 20.01.2015 accepted the eviction petition.
10. Petitioner/Tenant
again filed appeal against Eviction Order dated 20.01.2015 but his appeal was
dismissed vide impugned Judgment
dated 13.04.2015.
11. Writ Petition No. 1598/2015
was taken up first wherein learned Counsel for petitioner submitted that his
right of evidence was closed without observing the process of law due to which
he has been condemned unheard. He added that learned trial Court denied
summoning of crucial evidence, therefore, the impugned judgments being violative of the principles of natural justice are without
jurisdiction.
12. It is next submitted
that Respondents 3 & 4 failed to exhaust onus regarding existence of
landlord and tenant relationship because in support of their claim that tenant
had entered into lease agreement they should have produced the agreement but
they failed to do so. He added that there was no mention of oral agreement in
the eviction petition or elsewhere in pleadings of purported landlord and
during cross-examination AW-1 admitted that there was no written lease
agreement between the parties which further outcasts the claim that lease
agreement has expired.
13. It is further
averred that learned Courts ignored the material aspect that Respondent No. 4
had sold his share of shop to Respondent No. 3 but the latter did not appear in
witness box which was fatal to his case. He added that no record of CDA was
produced to prove title and private documents in the form of Photostat copies
were allowed to be produced while registered sale deeds had no nexus with
existence of tenancy.
14. It is also contended
that contrary to requirement of Section 19 of Islamabad Rent Restriction
Ordinance, 2001, the notice for change of ownership had not been sent. He added
that claim of respondents in this regard is false and un-creditworthy because
neither the lawyer who sent notice, nor witnesses of notice were produced.
Moreover relationship of petitioner/tenant with recipient Waqar
had to be proved but landlord failed to do so and in absence of such notice
default of tenant cannot be assumed.
15.
He further argued that alleged default of tenant for period prior to
transfer of ownership and payment of rent by vendors of title on this account
is a baseless claim as during the cross-examination Respondent No. 4 admitted
that he had never met previous owner and had no knowledge about the lease
agreement with previous owner. He added that learned Rent Controller appointed
local commission illegally and did not decide objections of petitioner
thereupon due to which consequent judgment is not sustainable in the eye of
law.
16.
Learned Counsel concluded that impugned judgments are liable to be set
aside being result of mis-reading and non reading of
evidence and suffer from illegal exercise and omission to exercise
jurisdiction. Learned Counsel relied on case law cited as “Mst. Munawar
Sultana Vs Additional District Judge, Islamabad
17.
Addressing arguments on W.P. 4754/2014, learned Counsel for petitioner
submitted that previous owner namely Muhammad Miskeen
entered into lease agreement with him and he is in possession of utility bills
for demised premises but respondents intentionally moved ejectment
petition against Nadeem Younas
and by misleading the learned Rent Controller succeeded in obtaining eviction
order and as soon as it came into the knowledge of Jehanzeb
Younas, he moved impleadment
application which was unlawfully rejected by learned appellate Court.
18. He next submited that Jehanzeb is a
necessary party as he produced a written lease agreement with previous owner
while the veracity of allegation with regard to forgery in the lease agreement
is factual dispute which cannot be decided without recording evidence but
learned Appellate Court did not consider material aspect of the case.
19. Learned Counsel for Respondents
3 & 4 while repelling above arguments asserted that petitioners are
willfully exploiting the process of Court as they are father and son inter se
doing the same business but posing to be separate entities. He added that when
learned Rent Controller ordered eviction of Nadeem Younas he manipulated application for impleadment
by his Son in order to prolong proceedings and delay the cause of justice. He
further states that their collusion is evident from the fact that petitioners
have mentioned different addresses at different stages of proceedings and Nadeem Younas mentioned his
address as demised premises in transfer application, W.P. 2784/13 & 2993/14
while in W.P. 1598/15 he has mentioned address of Karachi without giving
parentage. Learned Counsel added that petitioners are playing mockery with
judicial proceedings as the Writ Petition No. 4754/2014 filed by Jehanzeb Nadeem carries an
affidavit of Nadeem Younas
at pages 34 & 37 but same are signed by Jehanzeb Nadeem while such
illegalities cannot be taken lightly rather negate the bona fides of petitioners due to which these petitions merit
outright dismissal.
20. Learned Counsel next
submited that respondents/landlord no where in the eviction petition mentioned that there was
a written lease agreement with the previous owners. He added that purported
lease agreement produced by Jehanzeb Nadeem does not merit to be considered as a valid documents
because it is a photocopy and unregistered piece of paper which neither mentions
date of its execution nor period of its effect and even if it is presumed to be
a valid document, the fact remains that it being an agreement beyond 11 months,
should have been registered hence its non registration shows that it has been
expired, even though its execution is not admitted. In support of this
contention learned Counsel relies on case law cited as “HBL Vs Dr. Munawar Ali Siddiqui”
[1991 SCMR 1185].
21. Learned Counsel
explained the point of non issuance of notice regarding change of ownership by
submitting that notice issued by them had been proved to have reached at the
address of petitioner which is sufficient compliance of the statutory
requirement. Alternatively he submits that filling of eviction petition is also
treated as notice for change of ownership. In support of his contentions
learned counsel placed reliance on case laws titled as “ Qaiser Javed Malik Vs Pervaiz Hameed & 02 others” [2009 SCMR 846], “Ghulam Rasool Vs Mian Khurshid Ahmed” [2000 SCMR 632], “Mst Khursheed
Begum & another Vs Muhammad Siddique” [1991
CLC 1134 Karachi], “Ghulam
Waris Vs Riaz Ahmad
Advocate” [1990 MLD 2300 Karachi], “Muhammad
Yameenullah Pervez Malik Vs Mrs. Syeda Habiba Rizvi” [1990 MLD 2356
Karachi], “Suleman
and another Vs M.A. Mallick” [1988 SCMR 775], “Pakistan National Shipping Corporation Vs M/s.
General Service Corporation” [1992 SCMR 871], “Major (Rtd.) Muhammad Yousaf
Vs Mehraj-ud-Din” [1986
SCMR 751] & “Aziz Begum Vs Faiyaz Butt” [1991 CLC Note 9 Lahore].
22. Heard and Record
Perused.
23. After careful
examination of record, it is pertinent to observe that conduct of Nadeem Younas remained dubious.
From very inception of the case he had been playing hide and seek with the
judicial procedure as he initially resorted to filing of transfer application,
then disjoined the proceedings and when his eviction was ordered, he filed
appeal wherein case was remanded but in post remand proceedings after initial cross-examination,
he again disappeared which compelled the learned Court to finally strike off
his right to produce evidence but outre of his scheme
was introduction of his son through filing of impleadment
application by the latter which is glaringly a ploy to suffocate the course of
justice because despite the fact that both father and son had engaged same firm
of counsel to represent them, they no-where plainly
disclosed their relationship rather mentioned different addresses in
perceivable attempt to suppress the true picture. CNIC issued on 23.07.2014 to Nadeem Younas annexed with Writ
Petition-1598/2015 shows him a resident of Islamabad but he mentioned his
address in the petition as that of Karachi, while Shop No. 2 Block No. 135,
Khan Plaza Jinnah Super Market, Markaz F-7, Islamabad
24. Adverting to
averments in W.P. No. 1598/2015, the main focus had been upon existence of
landlord and tenant relationship between petitioner and Respondents 3 & 4
and in that reference as observed earlier Nadeem Younas had from his own accord acknowledged usufruct of
demised premises but has not uttered anything about his capacity of enjoying
the possession of demised premises, therefore, in absence of adverse claim of
title his status becomes that of a tenant. Guidance is sought from case of “Fakhruddin Khan Syed vs. Mst. Surryia
Sultana” [2005 YLR 349 Karachi
“Where no rent
agreement existed between the parties, law would assume that when a person, who
was not the owner of premises, occupied any portion thereof and had not setup a
title which was adverse to owner of premises, then such a person by fiction of
law would become a tenant of owner landlord.”
25. Mere non production
of lease agreement with the previous owner cannot be termed fatal to the case
of eviction petitioner because despite having possession of demised premises
adverse title has not been setup as defense and as such no other capacity of enjoying the
possession can be attributed. It is not the case of petitioner/tenant that he
either tendered rent in Court or to the previous owner. There is no cavil to
proposition that defect or verification of title documents does not concern the
tenant in any manner and even the most defective title of landlord does not
entitle the tenant to evade payment of rent and he cannot be presumed entitled
to require inspection of title documents. The Hon’ble
Supreme Court in case of “Suleman and another Vs M.A. Mallick”
[1988 SCMR 775] observed that “Tenant, could not raise plea that he was
entitled to demand copy of title deed and as such he deliberately and willfully
defaulted in payment of rent”
26. So far as aspect of
the requirement of ownership change notice is concerned, landlord had produced
copy of notice as well as its dispatch courier receipt which has not been
denied through rebuttal evidence as no evidence was produced from the tenant's
side. Ordinarily learned Rent Controller should have framed issues in respect
of eviction grounds i.e default, bona fide personal need and expiry of lease agreement but in the
peculiar circumstances of the present case default of tenant is made out during
the period when case was pending adjudication, if not from the period mentioned
in the petition. Even otherwise the Hon’ble Superior
Courts have held on
numerous
occasions that filling of eviction petition is sufficient notice and according
to record since eviction petition was filed on 05.12.2012, no rent has been
tendered by the petitioner/tenant which makes him a willful defaulter within
the preview of Section 17 of Islamabad Rent Restriction Ordinance, 2001.
Guidance is sought from case of “Major (Rtd.) Muhammad Yousaf vs Mehraj-ud-Din”
[1986 SCMR 751] wherein the Hon’ble Supreme Court
held as follows:
“6. On the second
question also the respondents have no case it is neither supported by statute
nor any principle of law that if a notice under Section 13-A of the Ordinance
is not served that would amount to absence of relationship of landlord and
tenant. The analogy of case law under Section 30 of Displaced Persons
(Compensation & Rehabilitation) Act, 1958, is not attracted here. Thus, the
finding of issue of relationship has to be reversed and we do accordingly.
7. That being so, rent having admittedly not
been paid after the institution of the application for eviction which has also
been treated as notice under Section 13-A the respondents were liable to be
evicted. We do accordingly.”
27. In view of above landlord
and tenant relationship stand established and in the same sequel default of
petitioner upon his failure to tender rent during pendency of proceedings is
evident, therefore, present Writ Petition as well as Writ Petition No. 4754/2014
are dismissed. In accord with observations recorded in para
23 supra special cost of Rs. 10,000/- is imposed upon the petitioner in
W.P. 4754/2014.
(R.A.) Petitions dismissed
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