IN THE HIGH COURT OF SINDH, KARACHI

F.R.A.No.53 of 2016

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Order with signature of Judge

Present : Mr. Justice Fahim Ahmed Siddiqui

Imran Qadir……..…………...……………………..……………….….Appellant

Versus

Roqiya Sultana and 07 others……………..…………………....Respondents

Date of Hearing:- 16.01.2017

Ms. Shahida Haq, advocate for the petitioner

Mr. Khalid Daudpota, advocate for the respondent No.1 to 5

Mr. Arshad Iqbal, advocate for the respondent No.6

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: The instant rent appeal is directed against the order dated 18-02-2016 passed by learned Additional Controller of Rent, Clifton Cantonment, Karachi in rent case No 89/2015 whereby appellant (tenant) was directed to vacate the premises bearing No 100/II, Commercial Avenue, Phase-IV, Defence Housing Authority, Karachi and hand over its vacant and peaceful possession to the respondent No. 1.

2. As per memo of appeal, the facts of the case in a nutshell are that the respondent No. 1 on her behalf as well as being attorney of respondents No. 2 to 5 filed a rent case under section 17 of Cantonment Rent Restriction Act, 1963 for ejectment of the appellant. Respondents are co-sharer in the aforesaid property being the legal heirs of Sardar Ali Khan (late) who died at Karachi on 14-09-2004. The respondent No. 1 before going to UK, allowed the respondent No. 6 (her son) to live within the said premises along with his family. When she was residing in the UK with her daughters, she received a notice from her son for family settlement of the properties which was responded by her through her lawyer. Thereafter, she received a notice from this court in Suit No. 1688/2012 filed by the respondent No. 6 against the rest of the private respondents for administration and accounts. The Respondents No. 1 to 5 subsequently came to know that the respondent No. 6 has let out the premises in question to the appellant on monthly rent of Rs. 80,000/-who has not paid the rent since occupation i.e. January 2012.

3. After institution of the rent case, the learned Additional Controller of Rent issued notice to the opponents including appellant, who appeared before the learned Rent Controller and service on his part was held good with directions to him for filing of written statement. Thereafter the appellant neither appeared before the Rent Controller nor filed WS in spite of several chances were given to him. Consequently, the side of the appellant was closed on 04-02-2016 and he was proceeded ex-parte. As the assertion of the appellant remained un-rebutted therefore the learned Rent Controller allowed the rent application filed by the Respondents No. 1 to 5, and impugned order was passed.

4. The learned counsel for the appellant assailed the impugned order solely on the ground that the same was an ex parte order and the same is not based on merit therefore the matter ought to be remanded back. Regarding nonappearance of the appellant after giving assurance to file WS, her contention is that the appellant was fallen ill and he has filed a medical certificate for reopening his side but the same is not considered. She then submitted that the medical certificate was actually filed with an application under section 12 (2) and objections before executing court. She further submitted that the learned Additional Controller of Rent could not appreciate the fact that the respondent No. 6 is the actual landlord who has rented out the premises to the appellant. She submitted that the Respondents No. 1 to 5 and respondent No. 6 have a dispute over the property in question as such appellant is not sure who is the landlord and he is suffering in their dispute.

5. The learned counsel for the respondent No. 6 also addressed the court. According to him, his client was made opponent No. 2 in the rent proceedings while he is the co-sharer in the property and he has rented out the premises being landlord for which he is fully authorized as co-sharer. He submitted that there was nothing against him in the rent order but even then it is a fact that the learned Rent Controller has to determine relationship before passing any order. According to him, the proceedings before the learned Rent Controller was regarding default but the quantum of default was also not determined by the learned Rent Controller. He further submitted that his client has already filed a suit for administration against his mother and sisters, which is pending and preliminary decree has been passed as such the relationship is a serious question of law. He further submitted that in the Administration suit, Nazir of this court has been appointed as Administer. He also conceded with the arguments of the learned counsel for the appellant for remanding the case. In response to a query, he submitted that he is not aware whether there is any default.

6. In contrast to above, the learned counsel for the respondents No. 1 to 5 submitted that all the private respondents are the co-owners of the property in question, and any of the co-owner can initiate rent proceedings against the tenant. He submitted that after service of the rent case, the appellant appeared before the Rent Controller and thereafter he preferred to be aloof of the proceedings. According to him, he was well aware of the proceedings and he admitted that he appeared in the case once, therefore, there was no question of fraud or misrepresentation. He submitted that neither an application nor objection was filed before the Rent Controller, and objections are filed before civil court in execution proceedings. He submitted that the application under section 12 (2) was filed after 30 days while the instant FRA was filed after four months, as such the same is hopelessly time-barred. He submitted that there is no question of relationship as respondent No. 6 is the son of Respondent No. 1 and being co-sharer she can file a rent case against the tenant. Per him, the order of learned Rent Controller is a speaking order and based on proper reasoning.

7. After hearing the arguments at bar, I have scanned the relevant record. The appellant did not deny his status as a tenant but he took plea that he was not heard before the tribunal and that he had been the tenant of respondent No. 6 and not the respondents No. 1 to 5. It is also admitted by him that he had appeared before the tribunal after service but thereafter he could not appear because of his ailment. In this respect, he had filed certain medical records in shape of physician's prescriptions and lab-investigations. According to impugned order, the appellant appeared before the Rent Controller on 02-11-2015 and after considerable time i.e. 04-02-2016, his side was closed and the final order was passed on 18-02-2016. It means that after the first appearance of the appellant, it took more than four months in finally deciding the rent case. For such a long period, he did not pay any heed regarding legal proceedings against him for which he was well aware that the same might be culminated to his ejectment from the premises. As far as his ailment is concerned, he only produced some prescriptions and lab-investigations. He also filed an admission request of a hospital for surgical process of laparoscopic cholecystectomy i.e. removal of gallbladder stones through laparoscopic procedure. It is not clear whether such process was done but even if it was done, the surgery under laparoscopic procedure normally needs a very short stay in hospital as an indoor patient. It does mean that even if the appellant was suffering from some ailment than the same is not so severe to hinder his appearance before the tribunal for such a long duration. It is also worth noting that not only an application under section 12 (2) was filed with delay but even the instant FRA is delayed. The impugned order was passed on 18-02-2016 by the learned Rent Controller while the instant FRA was filed on 20-07-2016 that is a delay of more than five months without any plausible explanation. The above stated situation and position are very much clear regarding the conduct of the appellant, who remained non-serious during the proceedings before the learned Rent Controller and also filed an appeal with delay. I have already mentioned that his alleged ailment is not a reasonable ground for his slaphappy conduct.

8. Now, I would like to divert towards the plea of relationship taken by the appellant as well as the learned counsel for the respondent No. 6. The appellant tried to question the relationship on the ground of his induction in the premises by the co-sharer, who filed an administrative suit against his mother and siblings. It is the settled legal position that any of the co-sharers may file a rent case against the tenant irrespective of the fact that some other co-sharer has inducted the tenant in the tenement. In the case of Abudl Ghani v. Abrar Hussain (1999 SCMR 348), the Hon'ble Supreme Court has observed that a co-sharer can file ejectment proceedings against a tenant without impleading other co-sharer. Similar view is taken in the case of Muhammad Hanif and another v. Muhammad Jameel Turk and 5 others (2002 SCMR 429). The wisdom behind such principle is that co-sharer acts on behalf of and represents the interest of all the co-owners of the property. As far as filing of an administration suit is concerned, it does not improve the case of the appellant. It is a controversy between the legal heirs of the deceased owner of the premises, which has no bearing on the appellant’s status as a tenant.

Considering the above facts and circumstances, I am of the considered view that the appellant has failed to point out any material illegality and irregularity in the order of the learned Additional Controller of Rent, Clifton Cantonment, therefore, same does not deserve for any interference, hence maintained. Consequently, the instant FRA being devoid of any legal substance stands dismissed.

J U D G E