Iftikhar Chodhary's Judgment on Islamabad Rent Restriction Ordinance 2001

PLJ 2012 SC 180
[Appellate Jurisdiction]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain & Tariq Parvez Khan, JJ.

JAVED KHAN ABBASI--Petitioner

versus

ZUBAIR ASLAM and others--Respondents

Civil Petition No. 1430 of 2011, decided on 17.10.2011.

(On appeal from the judgment dated 08.7.2011 of the Islamabad High Court, Islamabad passed in W.P. No. 2346 of 2008).

Islamabad Rent Restriction Ordinance, 2001--

----S. 1(2)--S.R.O. No. 83(RE)/02 dated 19.7.2002--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Islamabad Capital Territory--Ejectment petition--Defaulted in payment of rent--Denied relationship of landlord and tenant--Preliminary objection about maintainability of rent case--Orders passed by Rent Controller as well as by Appellate Court were challenged before Islamabad High Court which was dismissed--Challenge to--Urban Property became effective on date of notification--Validity--Rent Controller decided ejectment petition after acquired jurisdiction--No prejudice had been caused to the petitioner, by deciding ejectment application by Rent Controller after he acquired jurisdiction during pendency of the petition--Leave to appeal was refused.         [P. 186] A

Islamabad Rent Restriction Ordinance, 2001--

----S. 2-J(ii)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Islamabad Capital Territory--Ejectment petition--Petitioner was not in possession of the premises--Premises was let out by deceased father of petitioner--Legal heirs of deceased were inherited right of tenant--After death of his father his brother was in possession as tenant--Notice was served upon the petitioner--Validity--On account of death of tenant only members of his family who continued to be in possession or occupation of building, rented land can be termed as tenant and not of legal heirs of tenant who were not in possession of premises, as only legal heirs who were actually in possession or occupation of the premises after death of tenant became statutory tenant--Petitioner was in possession of premises and passed ejectment order--Leave to appeal was refused.    [Pp. 184 & 185] B

Sardar Muhammad Aslam, ASC for Petitioner.

Nemo for Respondents.

Date of hearing: 17.10.2011.

Judgment

Khilji Arif Hussain, J.--The petitioner, seeks leave of the Court, aggrieved by the judgment passed by Islamabad High Court, Islamabad in Writ Petition No. 2346 of 2008 whereby learned Single Judge of the Islamabad High Court dismissed the petition and maintained the orders passed by the Rent Controller as well as by appellate Court.

2.  Brief facts to decide the petition are that Respondents No. 1 and 2 filed ejectment petition against the petitioner in respect of Shop No. 5, Block No. 3, Sector F-6/1, Class-III Shopping Center, Farooqia Market, Islamabad on the ground that the petitioner has committed default in payment of rent despite repeated demand and request made by the respondents. The petitioner in his written statement denied the relationship of landlord and tenant and raised preliminary objection about the maintainability of the rent case under Islamabad Rent Restriction Ordinance, 2001 (hereinafter referred to as the `Ordinance').

3.  After framing the issues and recording the evidence, Rent Controller, vide judgment dated 31.7.2007 accepted the ejectment petition filed by the respondents. The petitioner filed appeal against the said judgment under Section 21 of the Ordinance, which was dismissed by the Additional District Judge, Islamabad vide his judgment dated 16.9.2008. The orders passed by the Rent Controller as well as by the appellate Court were impugned through writ petition before the Islamabad High Court, which too was dismissed vide the impugned judgment dated 08.7.2011, hence this petition for leave to appeal.

4.  Sardar Muhammad Aslam, ASC for the petitioner, vehemently contended that the Rent Controller was competent to entertain and try the ejectment petition only after 24.6.2004 when the Notification under Section 1(2) of the Ordinance was issued, whereas the rent application was filed on 29.1.2003 on which date Rent Controller had no jurisdiction to entertain the same. It is further contended by the learned counsel for the petitioner that the petitioner is not in occupation of the premises in question, which has been occupied by one Khalid and as such the petitioner is not liable to pay the rent, if any, due in respect of the premises in question.

5.  We have taken into consideration arguments advanced by the learned counsel for the petitioner and have perused the available record. From perusal of the record, it appears that respondents have filed ejectment application against the petitioner under the Ordinance, on 29.1.2003. Section 1(2) of the Ordinance defines that the Ordinance shall extend to such urban area of Islamabad Capital Territory and apply to such buildings and rented lands as the Federal Government may, by Notification in the Official Gazette, specify. Section 2(K) of the Ordinance, defined urban area means such area or areas of the Islamabad Capital Territory as the Federal Government may, by Notification in the Official Gazette, specify.

6.  By S.R.O. No. 83(RE)/02, dated 19.7.2002 in exercise of powers conferred by Clause (k) of Section 2 of the Ordinance, the Federal Government specified the urban areas for the purpose of the Ordinance.

7.  It is not disputed by the petitioner that the premises in question is situated within the area mentioned in the table for the purpose of the Ordinance. By another Ordinance dated 29.6.2004, in exercise of the powers conferred by sub-section (2) of Section 1 of the Ordinance, the Federal Government directed that the said Ordinance shall extend to the urban areas specified by Notification dated 19th July, 2002 and apply to all residential and commercial buildings and rented lands situated in the said urban area.

In the case of Adnan Afzal versus Capt. Sher Afzal, (PLD 1969 S.C 187), it was held that:--

"The principle has been admirably put by Crawford in his Book on Construction of Statutes, 1940 Edition, Page 581, as follows:--

"As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation'. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions."

This principle has also been fully adopted by this Court in the cases of The State v. Muhammad Jamil and Muhammad Alam v. The State:

"The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statures retroactively."

In the case of Managing Director, Oil and Gas Development Company Ltd. Versus Syed Najmul Hassan Naqvi, (2005 SCMR 89), it was held that:

"Quite an anomalous situation would it be that on the one hand and at the initial stage, by serious omission, the timely return of appeal is avoided and the cause of action is allowed to mature during pendency and, on the other hand, at the fag end of proceedings, it is dismissed on the ground that the initial submission was premature. Such volte face if taken by the Tribunal cannot be endorsed under any canon of justice. The fact remains that premature matters are not bad but simply premature and must be returned. Failure to do so debars the Tribunal to subsequently jeopardize the rights and bona fide claims of the appellants. We, therefore, conclude that a premature appeal before the Tribunal requires to be returned at the very first instance. If this course of action is not adhered to, the Tribunal subsequently, cannot damage the appellant on grounds of prematurity of appeal when the same had become mature during the pendency allowed by the Tribunal itself. The Tribunal, in the instant case, has rightly declined to dismiss the appeal on this score and moreover, this objection was not taken before the Tribunal either, by filing any concise statement."

8.  From perusal of the record, it appears that the table appendix to Notification dated 19th July 2002 leaves no manner of doubt that the property is situated in an area which is specified in the said Notification to be urban area for the purpose of the Ordinance and that the Rent Controller who took cognizance of the matter was appointed in terms of Section 7 of the Ordinance. Even if, we accept the contention of learned counsel for the petitioner, that the Ordinance in respect of the urban property became effective on the date of Notification issued under Section 1(2) of the Ordinance i.e. 29.6.2004, the Rent Controller decided' the ejectment petition after he acquired the jurisdiction. No prejudice has been caused to the petitioner, by deciding the ejectment application by the Rent Controller after he acquired the jurisdiction during the pendency of petition.

9.  As regards the contention of learned counsel for the petitioner that the petitioner is not in possession of the premises in question, from the record, it appears that the premises was let-out by the deceased father of the petitioner and the petitioner along with legal heirs of the deceased inherited the right of tenant. The petitioner alleged that after the death of his father namely Barkhurdar Khan his brother Khalid is in possession of the shop as a tenant. It appears that though the notice was served upon the petitioner on the premises in question, the said Khalid did not come forward to protect his possession, claiming that he is the tenant in occupation of the premises in question exclusively.

10.  Section 2 J(ii) the Ordinance provided that on account of death of the tenant only members of his family who continued to be in possession or occupation of the building, rented land, can be termed as a tenant and not of the legal heirs of the tenant, who are not in possession of the premises, as only legal heirs who are actually in possession or occupation of the premises after the death of tenant became statutory tenant.

11.  The Rent Controller as well as the Courts below, on the basis of evidence on record came to the conclusion that the petitioner is in possession of the premises in question and passed the ejectment orders.

12.  In view of the foregoing discussion, we are of the view that the impugned judgment is eminently reasonable and proceeds on cogent grounds. The learned counsel for the petitioner has not been able to point out any legal infirmity in the impugned judgment, which could justify interference.

The listed petition is, therefore, dismissed being without merit and leave to appeal is refused.

(R.A.)  Leave refused

Competency of Revenue Courts in case of Eviction of Tenant

P L J 1980 Supreow Court 346

G. SAFDA& SHAH AND KAKAU ELAHH CHAUBAK, U

ABDUL QADUt

Civil Petition

No. 24-P of 1979 decided on 24-4-1979.

NWFPTenaBcy Aet(XX»f 1950)—S. 77, Second Group items (f) «td (g)— Default in payment of rent by tenant/lessee—Suit for recovery of rent end evictionfrom agricultural land—Revenue Courts competent to entertain (be suit—All Courts below recording verdict of default against lessee—Contention that landlord had short delivered possession of land and plea of reduction of rent on its basis—Contention not-upheld—Superstructure raised by tenant wihout consent of landlord cannot be compensated—Held: High Court rightly maintained orders of Courts below.            (Paras. 7, 10}

Kartmullah Durrani ASC and Qesim Imam AOR (absent) for Petitioner. Ds(t fff heartag: 24-4-1979.

ORDER

Karam Elahte Chaahan, /.—Zarbaz Khan (hereinafter called the landlord) filed a suit against the petitioner for the recovery of arrears of rent for the period Kftarif 1971 to Rabi 1974 and for bis eviction from the agricultural land !a dispute on account of the default in the payment of the aforesaid rent.

2.    The Assistant Collector decreed the suit for a sum of Rs. 46,000 andalso ordered eviction of the petitioner on 6th December, 1977.

3,    The petitioner filed an appeal but without any success 8* the same was-dismissed by the Collector on 20th December, 1977*

'4,   The petitioner filfid a Revision whkL &13O stet tee s*i« tats and was dismissed by the Commissioner OB llib Ms    ^!9⁷R

.,-_; ;   $. 'A furtner Revision ^f-.~," '.-, .ait petiuoaer before sise Board of Revenue-, also failed and was dismisses ©B 20sh July, 197$.      :,

6. The* petitioner then filed a writ petition being W.P, No. 587/78 which was dismissed fey a Division Bench of the Peshawar High Court on 16th oflanoary^ J97J- The petmooer has come up in a petition for appeal Teave-ag«lE«f t&e same ft this Court,

7.               Learned counsel for the petitioner bai argued that the Revenue Court had no jurisdiction to try the suit of the respondent landlord.   This  contentionlias been met fully in the order of the High Court and it has been held that the petitioner  being  a tenant/lessee of the respondent, a Revenue Court was quitecompetent to entertain the suit on the subjects involved  therein.   The finding of the High Court seems to be quite in order and the learned counsel covld notpoint out any error Sn it.

8.               Learned counsel then argued that there was no defeat in the payment  of rent on   the part of his client.    Here again all the Courts below have recorded averdict against the petitioner and have held him defaulter after attending to the facts  and circumstances  of the case and the evidence on record.   In these cir­cumstances the rinding of the Courts below were rightly maintained by the High Court.

9.               It was next submitted by the learned counsel that the landlord had noi given full area which was leased out to the petitioner and  withheld delivery olpossession of a  part thereof, and as such, if the rent for the area not delivered is proportionately reduced, then there will be no default on the part of the petitioner.    All the Courts below have found no merit in this plea.    They have nek that there was no short delivery and consequently the tenant was not entitled toany proportionate reduction of rent.   Learned counsel could find no  flaw  in this finding and, therefore, the same is not open to exception before us.

10.    Last  objection  by the learned counsel was that Courts below have not Allowed  compensation to the petitioner for certain super structures   madeon the  land  in  dispute.   It  was held  that these superstructures  were made Without the consent of the landlord and hence no claim for the same could havebeen advanced.   The view taken seems to bs perfectly in accord  with  the law

relevant OB the subject.

. .    11.   The result is that this petition has no merit and is dismissed.

Judgment on Jurisdiction of Rent Controller

2012 S C M R 248

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Tariq Parvez, JJ

JAVED KHAN ABBASI---Petitioner

Versus

ZUBAIR ASLAM and others---Respondents

Civil Petition No.1430 of 2011, decided on 17th October, 2011.

(On appeal from the judgment dated 8-7-2011 of the Islamabad High Court, Islamabadpassed in W.P. No.2346 of 2008).

(a) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 1(2), 2(k) & 17---SRO No. 83(RE)/02 dated 19-7-2002---Constitution of Pakistan, Art. 185(3)---Ejectment petition---Default in payment of rent by tenant, ground of---Ejectment order passed by Rent Controller was upheld in appeal and constitutional petition by Appellate Court and High Court respectively---Tenant's plea was that ejectment petition filed on 29-1-2003 was not entertainable by Rent Controller as jurisdiction to decide same vested in him subsequently through notification dated 29-6-2004 issued under S. 1(2) of Islamabad Rent Restriction Ordinance, 2001---Validity---Federal Government for the purposes of Islamabad Rent Restriction Ordinance, 2001 had specified urban areas by S.R.O. No. 83(RE)/02, dated 19-7-2002 issued under S.2(k) thereof and had extended thereto jurisdiction of Rent Controller through notification dated 29-6-2004 issued under S.1(2) thereof---Demised premises was situated within such specified urban area---Rent Controller had decided ejectment petition after having acquired jurisdictionduringitspendencythroughsuchnotificationdated 29-6-2004---­Supreme Court dismissed petition for leave to appeal in circumstances.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 The State v. Muhammad Jamil and Muhammad Alam v. The State; Managing Director Oil and Gas Development Company Ltd. v. Syed Najmul Hassan Naqvi 2005 SCMR 89 rel.

(b) Jurisdiction---

----Tribunal/court lacking jurisdiction to entertain a lis at time of its institution could decide the same subsequently, if acquired jurisdiction during its pendency---Principles.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Managing Director Oil and Gas Development Company Ltd. v. Syed Najmul Hassan Naqvi 2005 SCMR 89 rel.

(c) Islamabad Rent Restriction Ordinance (IV of 2001)---

----Ss. 2-J(ii) & 17---Ejectment petition---Denial of relationship of landlord and tenant by respondent on ground that after death of his father, his brother remained in possession of suit premises---Validity---Suit premises was rented out to father of respondent---Notice of ejectment petition was served upon respondent at suit premises--- Respondent's brother had not come forward to protect his possession over suit premises by claiming to be its tenant---According to S. 2-J(ii) of Islamabad Urban RentRestriction Ordinance, 2001, after death of a tenant, his legal heir(s) actually remaining in possession/occupation of premises would become statutory tenants thereof---Evidence available on record showed that respondent was in possession of demised premises---Petition for leave to appeal against the order of the High Court was dismissed.

Sardar Muhammad Aslam, Advocate Supreme Court for Petitioner.

Nemo for Respondents

Date of hearing: 17th October, 2011.

JUDGMENT

KHILJI ARIF HUSSAIN, J.---The petitioner, seeks leave of the Court, aggrieved by the judgment passed by Islamabad High Court,IslamabadinWritPetitionNo.2346of2008wherebylearned SingleJudgeoftheIslamabadHighCourtdismissedthepetitionandmaintainedtheorderspassedbytheRentControlleraswellas by appellate Court.

2. Brieffactsto decide the petition are that respondents Nos.1 and2filedejectmentpetitionagainstthepetitionerinrespectof Shop No.5, Block No.3, Sector F-6/1, Class-III Shopping Center, Farooqia Market, Islamabad on the ground that the petitioner has committed default in payment of rent despite repeated demand and request made by the respondents. The petitioner in his written statement denied the relationship of landlord and tenant and raised preliminary objection about the maintainability of the rent case under Islamabad Rent Restriction Ordinance, 2001 (hereinafter referred to as the 'Ordinance').

3. After framing the issues and recording the evidence, Rent Controller, vide judgment dated 31-7-2007 accepted the ejectment petition filed by the respondents.The petitioner filed appeal against the said judgment under section 21 of the Ordinance, which was dismissed by the Additional District Judge, Islamabad vide his judgment dated 16-9-2008. The orders passed by the Rent Controller as well as by the appellate Court were impugned through writ petition before the Islamabad High Court,which too was dismissed vide the impugned judgment dated 8-7-2011, hence this petition for leave to appeal.

4. Sardar Muhammad Aslam, Advocate Supreme Court for the petitioner, vehemently contended that the Rent Controller was competent to entertain and try the ejectment petition only after 24-6-2004 when the Notification under section 1(2) of the Ordinance was issued, whereas the rent application was filed on 29-1-2003 on which date Rent Controller had no jurisdiction to entertain the same. It is further contended by the learned counsel for the petitioner that the petitioner is not in occupation of the premises in question,which has been occupied by one Khalid and as such the petitioner is not liable to pay the rent, if any,due in respect of the premises in question.

5. We have taken into consideration arguments advanced by the learned counsel for the petitioner and have perused the available record. From perusal of the record, it appears that respondents have filed ejectment application against the petitioner under the Ordinance,on 29-1-2003. Section 1(2) of the Ordinance defines that the Ordinance shall extend to such urban area of Islamabad Capital Territory and apply to such buildings and rented lands as the Federal Government may, by Notification in the Official Gazette, specify. Section 2(K) of the Ordinance, defined urban area means such area or areas of the Islamabad Capital Territory as the Federal Government may, by Notification in the Official Gazette, specify.

6. By S.R.O. No. 83(RE)/02, dated 19-7-2002 in exercise of powers conferred by Clause (k) of section 2 of the Ordinance, the Federal Government specified the urban areas for the purpose of the Ordinance.

7. It is not disputed by the petitioner that the premises in question is situated within the area mentioned in the table for the purpose of the Ordinance. By another Ordinance dated 29-6-2004, in exercise of the powers conferred by subsection (2) of section 1 of the Ordinance, the Federal Government directed that the said Ordinance shall extend to the urban areas specified by Notification dated 19th July, 2002 and apply to all residential and commercial buildings and rented lands situated in the said urban area.

In the case of Adnan Afzal v. Capt. Sher Afzal, (PLD 1969 SC 187), it was held that:--

"The principle has been admirably put by Crawford in his Book on Construction o fStatutes,1940 Edition, page 581, as follows:-

"As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions."

This principle has also been fully adopted by this Court in the casesof The State v. Muhammad Jamil and Muhammad Alam v. The State

"The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the otherhand,ifthenewproceduralstatuteisofsucha character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."

In the case of Managing Director, Oil and Gas Development Company Ltd. v. Syed Najmul Hassan Naqvi, (2005 SCMR 89), it was held that:--

"Quiteananomaloussituationwoulditbethaton theonehandandattheinitialstage,byseriousomission, the timelyreturnof appealisavoidedandthecauseofactionisallowedtomatureduringpendencyand, on the other hand, at the fag end of proceedings, it is dismissed on the ground that the initial submission was premature. Such volte face if taken by the Tribunal cannot be endorsed under any canon of justice. The fact remains that premature matters are not bad but simply premature and must be retuned. Failure to do so debars the Tribunal to subsequently jeopardize the rights and bona fide claims of the appellants. We, therefore, conclude that aprematureappealbeforetheTribunalrequires tobe returned at the very first instance. If this course of action is not adhered to, the Tribunal subsequently, cannot damage the appellant on grounds of prematurity of appeal when the same had become mature during the pendency allowed by the Tribunal itself. The Tribunal, in the instant case, has rightly declined to dismiss the appeal on this score and moreover, this objection was not taken before the Tribunal either, by filing any concise statement."

8. From perusal of the record, it appears that the table appendix to Notification dated 19th July,2002 leaves no manner of doubt that the property is situated in an area which is specified in the said Notification to be urban area for the purpose of the Ordinance and that the Rent Controller who took cognizance of the matter was appointed in terms of section 7 of the Ordinance. Even if, we accept the contention of learned counsel for the petitioner, that the Ordinance in respect of the urban property became effective on the date of Notification issued under section 1(2) of the Ordinance i.e. 29-6-2004, the Rent Controller decided the ejectment petition after he acquired the jurisdiction. No prejudice has been caused to the petitioner, by deciding the ejectment application by the Rent Controller after he acquired the jurisdiction during the pendency of petition.

9. As regards the contention of learned counsel for the petitioner that the petitioner is not in possession of the premises in question, from the record, it appears that the premises was let out to the deceased father of the petitioner and the petitioner along with legal heirs of the deceased inherited the right of tenant. The petitioner alleged that after the death of his father namely Barkhurdar Khan his brother Khalid is in possession of the shop as a tenant. It appears that though the notice was served upon the petitioner on the premises in question, the said Khalid did not come forward to protect his possession, claiming that he is the tenant in occupation of the premises in question exclusively.

10. Section 2J(ii) of the Ordinance provided that on account of death of the tenant only members of his family who continued to be in possession or occupation of the building,rented land, can be termed as a tenant and not of the legal heirs of the tenant, who are not in possession of the premises, as only legal heirs who are actually in possession or occupation of the premises after the death of tenant became statutory tenant.

11. The Rent Controller as well as the Courts below,on the basis of evidence on record came to the conclusion that the petitioner is in possession of the premises in question and passed the ejectment orders.

12. In view of the foregoing discussion, we are of the view that the impugned judgment is eminently reasonable and proceeds on cogent grounds. The learned counsel for the petitioner has not been able to point out any legal infirmity in the impugned judgment, which could justify interference.

The listed petition is, therefore, dismissed being without merit and leave to appeal is refused.

S.A.K./J-11/SCLeave refused.

Legal Status of Sale Deed could not be resolved in Rent Proceedings

2015 C L C 103

[Sindh]

Before Farooq Ali Channa, J

Messrs SYMPHONY (PVT.) LTD.----Petitioner

Versus

Haji FAZAL KARIM and others----Respondents

Constitutional Petition No.S-108 of 2006, decided on 12th March, 2013.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Ejectment petition---Scope---Fraud in sale transaction challenging legal status of registered sale deed, could not be resolved in rent proceedings which could only be probed in civil suit.

(b) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Ejectment petition---Relationship of landlord and tenant---Title of ownership was disputed by parties claiming each of them to be owner of demised premises---Rent Controller was to direct the parties to get their title cleared from civil court.

(c) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Ejectment petition---Landlord had acquired right of ownership in the property through sale-deed which was neither cancelled nor was out of field---Landlord could claim to have stepped into the shoes of previous owner---Landlord was entitled to recover rent from the tenant of the building which was subject-matter of the sale.

Qasim and another v. S. Rahim Shah 1990 SCMR 647 ref.

(d) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment oftenant---Concurrent findings---Scope---Concurrent findings of both the courts below did not suffer from any illegality or misreading of evidence---High Court refused to interfereand constitutional petition was dismissed.

Abdul Qadir Khan for Petitioner.

Khawaja Naveed Ahmed for Respondent No.1.

Date of hearing: 7th March, 2013.

JUDGMENT

FAROOQ ALI CHANNA, J--- The petitioner has filed this Constitutional petition against the concurrent findings of two Courts below vide order dated 24-12-2005 passed by learned 1st Additional District Judge, Karachi East in First Rent Appeal No. 104/2004 maintaining the ejectment order dated 27-3-2004 passed by Vth Rent Controller, Karachi East in Rent Case No.33 of 2003.

2.Briefly the facts of case are that Fazal Karim the respondent No.1 claiming himself to be the owner of demised premises filed ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979 for ejectment of petitioner Messrs Symphony (Pvt.) Limited, the tenant of the office/double Shop No.2 on Plot No.99-C, Central Commercial Area, PECHS, Karachi on the ground of default in payment of rent.

3.The petitioner filed written statement denying the relationship of landlord and tenanton the ground that the demised premises belonging to Messrs Print Off Printers andPublishers (Pvt.) Limited Company were sold to the petitioner by Rab Nawaz without having authority. Messrs Print Off Printers and Publishers (Pvt.) Limited was finally dissolved on 4-12-1982 as such Rab Nawaz had no authority to execute the registered sale-deed in favour of Fazal Karim the respondent No.1.

4.The Rent Controller after considering the evidence led by both the parties held that the relationship of landlord and tenant exist between the parties and allowed the ejectment application on the ground of default in payment of rent. The petitioner assailed the above order of Rent Controller in F.R.A. which was dismissed by learned Ist Additional District Judge, Karachi East as referred hereinabolve.

5.Heard Mr. Abdul Qadir Khan, Advocate for petitioner. He has contended that Messrs Print Off Printers and Publishers (Pvt.) Limited Company was dissolved as such Company's properties on dissolution became BONA VACANTIA being state properties in terms of Article 172 of the Constitution of Pakistan, 1973 on the principle of ESCHAEAT (Ownerless property). In the circumstances no person was competent to sale Company's property without leave of Court in terms of sections 315-316 of Companies Ordinance, 1984. Learned counsel has further contended that Rab Nawaz who allegedly sold the property in favour of respondent No.1 had no power of Attorney nor the resolution of company authorizing him to sell the property as such the sale of property amounts to fraud and liable to be set aside. Learned counsel has further contended that the petitioner has also filed Civil Suits before this honourable Court challenging the legal authenticity of Registered sale-deed and had obtained status-quo order. Learned counsel has further contended that ejectment application being premature was not maintainable. In support of his contention learned counsel has relied upon series of citations.

6.Conversely Mr. Khawaja Naveed Ahmed, learned counsel for respondent No.1 has contended that by virtue of Registered sale-deed the respondent No.1 became the absolute owner of the property and the petitioner has no locus standi to call in question the sale transaction which took place between Rab Nawaz and Fazal Karim the respondent No.1, as such the filing of civil suit was sheer effort to put the respondent No.1 under burden and to maintain the possession over the demised premises as long as possible. Learned counsel further contended that on the basis of registered sale deed the concerned department functioning under the Government of Pakistan, Ministry of Housing and Works vide order dated 24-3-1998, ordered the change of mutation of the property allotted to M/s Print Off Printers and Publishers (Pvt.) Limited Company in favour of Fazal Karim, the respondent No.1. Learned counsel has further contended that in writ jurisdiction this Court cannot re-appraise the concurrent findings of two Courts below, unless there is illegality but no illegality appears in the impugned judgments. Learned counsel in support of this contention has also relied upon series of citations.

7.With profound respect to the citations relied upon by learned counsel for both the parties, I am of the view that the questions raised by learned counsel for the petitioner regarding the fraud in sale transaction challenging the legal status of registered sale-deed, cannot be resolved/decided in the rent proceedings, the said questions can only be probed in the civil suits pending adjudication before this Court.

8.Learned counsel for the petitioner has also contended that if the title of the owner is under cloud and doubt is created, the proper course for the Rent Controller was to direct the landlord to get his title cleared from Civil Court and stay his hands from determining the relationship of landlord and tenant. In my view, the above aspect of case is valid if the title of ownership is disputed by the parties claiming each of them to be the owner of demised premises, in the instant case no body has come forward to claim his title of ownership over the property nor challenged the execution of registered sale deed in favour of the respondent No.1. The status/locus standi of petitioner is yet to be determined that whether he was competent to challenge the sale transaction which took place between some other persons particularly when the petitioner has no claim of ownership over the demised premises.

9.Learned Counsel for the petitioner to a query has admitted that petitioner is depositing rent in MRC continuously in favour of Messrs Print Off Printers andPublishers (Pvt.) Limited Company which is in contravention of plea of petitioner raised orally that after dissolution, the company has ceased to exist, however by depositing rent in favour of company, the petitioner shows existence of company. It is also admitted fact that the petitioner was inducted in the demised premises as tenant by Messrs Print Off Printers and Publishers (Pvt.) Limited Company. Now the only question arises that whether, on the basis of Registered sale deed pending adjudication in civil suit, the respondent can be considered as owner of the property. In this respect I am fortified to the case of Qasim and another v. S. Rahim Shah 1990 SCMR 647. In the above case the honourable Supreme Court was pleased to observe as under:---

"All this evidence, prima facie, supports the plea of the respondent that he had acquired the right of the ownership in the property through sale-deed. Until the sale-deed is cancelled and is out of the field, the respondent can claim to have stepped into the shoes of the previous owner, entitled to recover rent from the tenants of the building which was the subject-matter of the sale. There is another aspect of the case which cannot be ignored. Even if the agreement of sale was executed by the previous owner on a prior date before the registered sale-deed, by virtue of section 50 the registered sale-deed, nonetheless has precedence over the prior unregistered deed of agreement. This position would remain till such time the Civil Court passes a decree against the respondent in any of the suits pending in respect of the property. However, for the purpose of the Rent Controller, the position as it stands today was sufficient to satisfy the requirements of law that the respondent was landlord entitled to recover rent. In this view of the matter we find no reason to interfere with the decision of High Court, which is unexceptionable."

10.The facts and circumstance of instant case are identical to that of case decided in the above referred matter, the registered sale-deed in favour of respondent No.1 has not yet been cancelled by any competent Court and the same is in field entitling the respondent No.1 to claim the title of ownership of the demised premises by stepping into the shoes of previous owner which was sufficient to invoke the jurisdiction of Rent Controller.

11.For the reasons discussed above and the dictum laid down by the honourable Supreme Court referred to hereinabove I have come to the conclusion that the concurrent findings of both the Courts below does not suffer from any illegality or misreading of evidence, it requires no interference of this Court, therefore the Constitutional Petition is dismissed.

The, petitioner is allowed 60 days time from the date of this order to vacate the demised premises and hand over vacant possession to the respondent No.1

AG/S-27/SindhPetition dismissed.