ORDER SHEET
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Date Order
with signature of Judge
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Date of hearing 26.04.2012
Mr. Muhammad Shoaib Abidi Advocate for the Petitioner.
Mr. S. Hasan
Imam Advocate for the Respondent No.1.
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SYED HASAN AZHAR RIZVI, J: Present
constitutional Petition has been filed by the petitioner against the order
dated 01.02.2012 passed by the Vth Rent Controller, Karachi-South in Rent Case
No.38/2011 on Respondent No.1’s application under section 16(1) of the Sindh
Rented Premises Ordinance, 1979, whereby Petitioner was directed to deposit the
arrears of the rent amounting to Rs.11,25,000/- (Rupees
Eleven Lacs Twenty Five Thousand only) within fifteen days and future rent on
every 10th of English Calendar month in the Court.
Brief facts of the case are that on 15.09.2007 the
Petitioner and Respondent No.1 were entered into a lease agreement in respect
of Town House situated on Plot No.A-19, Block-5, Clifton, KDA Scheme No.5,
Clifton, Karachi on monthly rent of Rs.45,000/-. Lessor/present Petitioner paid
Rs.5,40,000/- (Rupees Five Lacs Forty Thousand only) on signing of lease
agreement out of which Rs.4,95,000/- being advance rent for eleven months and
Rs.45,000/- being security deposit through Cheque No.2028816 dated 10th
September, 2007. Lease agreement executed between the Respondent No.1 and the
Petitioner and receipt issued to the Petitioner by Respondent No.1 are enclosed
alongwith Memo of Petition from page No.35 to 45. According to clause-4 of the
lease agreement at page 39 of the Memo of Petition that after expiry of lease
agreement lease may be renewed with mutual consent of lessor and lessee subject
to one moth prior written notice for further period. Respondent No.1 on
27.05.2009 filed earlier Rent Case No.753/2009 in Court of VII Rent Controller,
Karachi-South against the Allah Bux Khan Daheri on the basis of lease agreement
referred to above for eviction of the tenant on the ground of wilful and
deliberate default from September, 2008 to November, 2008. A cheuque bearing
No.5144404 for the rent of six months from 15.12.2008 to 15.05.2008 amounting
to Rs.2,74,000/- was issued by the Petitioner, which
was bounced. Name of the Opponent was mentioned in the Rent Case No.735/2009 as
Allah Bux Khan Daheri instead of Ellahi Bux Khan Daheri. Learned VII Rent
Controller, Karachi-South on 13.05.2010 passed exparte order in the Rent Case
No.735/2009, Respondent No.1 filed Execution
Application No.52/2010. After having knowledge and information of the passing
of exparte ejectment order the present Petitioner filed Application under
section 12(2) CPC on the ground that the order dated 13.05.2010 was obtained by
fraud, misrepresentation and misguiding the Court as the premises situates within
the jurisdiction of P.S. Boat Basin and not within the jurisdiction of P.S.
Clifton. It was stated in para-5 of the affidavit in support of that
application that on 14.08.2009 after expiry of first lease agreement since
15.09.2009 the agreement was mutually and verbally renewed for further five
years and the present petitioner paid advance of such period to Respondent No.1
in present Petition.
Attorney of Respondent No.1 filed Counter Affidavit to the
application under section 12(2) CPC and
in para-5 of the counter affidavit, it is categorically stated that due to
typographical mistake/typing error the name of the opponent (present
Petitioner) was mentioned as Allah Bux Khan Daheri instead of Illahi Bux Khan
and in para-7 thereof Attorney of the Respondent No.1 specifically denied that
he had received advance rent for five years and the opponent (present
Petitioner) has failed to enclose any documentary evidence in respect of
payment of rent of five years amounting to Rs.27,00,000/- and transaction of
such big/heavy could not be done verbally. Petitioner filed rejoinder and not
specifically and categorically denied the contents of paras-5 and 7 of the
Counter affidavit of the Respondent No.1. However, on 20.10.2010 Counsel for
the Respondent No.1 endorsed his no objection to the grant of Application under
section 12(2) CPC filed by the present Petitioner and on 01.11.2010 learned VII
Rent Controller, Karachi-South allowed the Application of the Petitioner under
section 12(2) CPC, recalled exparte order dated 13.05.2010 on the basis of no
objection given by the Applicant/ Respondent No.1’s Counsel.
On 06.01.2011 Respondent No.1 filed Rent Case No.38/2011
against the petitioner in the Court of VI Rent Controller, Karachi-South for
ejectment of the Petitioner on the ground of committing wilful and deliberate
default in payment of rent. In Rent Case No.38/2011 an application under
section 16(1) of the Sindh Rented Premises Ordinance, 1979 was also filed by
the Respondent No.1. Petitioner filed written statement and counter affidavit
to the Application under section 16(1) SRPO, 1979 in Rent Case No.38/2011.
Petitioner had also filed an application under Order VII Rule 11 CPC on the
ground that the ejectment application is not maintainable as the same is hit by
resjudicata. Respondent No.1 filed counter affidavit to the said application.
In the written statement and counter affidavit to the Application under section
16(1) SRPO, 1979 the present Petitioner stated that after expiry of the Lease
Agreement on 14.08.2008 the parties entered into a new mutual verbal agreement,
tenancy was extended for further five years and the Petitioner paid
Rs.27,00,000/- in cash as advance rent for five years. Petitioner/tenant denied
that he had given any cheque No.544404 of payment of six months rent. It was
further pleaded by the Petitioner/tenant that Allah Bux Khan Daheri is the
elder brother of the opponent and not the tenant of the subject rented
premises. Respondent No.1/applicant tried to obtain exparte order in Rent Case
No.753/2009. Petitioner filed application under section 12(2) CPC, said
application was allowed after no objection of the Counsel for the Respondent
No.1/Applicant and the learned Rent Controller had observed that the Applicant
(present Respondent No.1) admits the contents of the application as well as
affidavit in his order dated 01.11.2010.
On 01.02.2012 Learned VI Rent Controller, Karachi-South in
Rent Case No.38/2011 passed order on application filed by the present
Respondent No.1 under section 16(1) SRPO, 1979 and observed that since the
opponent/present Petitioner has not produced any document to prove that he paid
the monthly rent to the Applicant/present Respondent No.1 through cheque or any
receipt was issued by the Applicant/present Respondent No.1 for the period of
25 months from December 2008 to December 2010 and onwards. Therefore, the opponent/present
Petitioner was directed to deposit the arrears of rent amounting to
Rs.11,25,000/- at the rate of Rs.45,000/- per month after December, 2010 at the
same rate in that case. He was also directed to deposit the current/future rent
at the same rate on every 10th of English Calendar month in this
Court. The opponent/present petitioner was directed to deposit the arrears of
rent within 15 days after passing of the said order.
Learned Counsel for the Petitioner contended that the
impugned order passed on Application under section 16(1) SRPO, 1979 on
02.01.2012 is illegal, void and ab-initio and has been passed in haste without
applying judicial mind. He contended that the earlier Rent Case No.753/2009 was
dismissed vide order dated 01.11.2010. He further urged that on Application
filed under section 12(2) CPC by the Petitioner in earlier rent case though
Counter affidavit was field by the Respondent No.1 to the said application but
on the basis of no objection given by the Counsel for the Applicant, the
Application was allowed as such according to the learned Counsel contents of
the Application under section 12(2) CPC
and affidavit in support thereof were admitted by the Respondent
No.1/Applicant. He further contended that the Petitioner has paid advance rent
for five years at the time of renewal of lease agreement as such petitioner has
not committed any default in payment of rent. It was also contended by the
learned Counsel that the Trial Court has failed to appreciate various documents
annexed with the main Application under section 15 of Sindh Rented Premises
Ordinance, 1979.
Mr. Syed Hasan Imam learned Counsel for the Respondent No.1
submitted that the present petition is not maintainable as the same has been
filed by the Petitioner against the impugned order under section 16(1) SRPO,
1979 and he supported the impugned order, which has been passed in accordance
with law. According to the learned Counsel for the Respondent No.1 since the
earlier Rent Case No.753/2009 filed by the Respondent No.1 in the Court of VII Rent
Controller, Karachi-Southin the court having no jurisdiction and there was a
typographical error in the tile of that case as instead of Illahi Bux Khan
Daheri, Allah Bux Khan Dahri was mentioned therefore, Respondent No.1 filed
comprehensive and detailed counter affidavit to the Application of the Petitioner
under section 12(2) CPC. On having knowledge of clerical/typographical mistake
in the title the fresh Rent Case was filed by the Respondent No.1 in the Court
of VI Rent Controller, Karachi-South having jurisdiction of P.S. Boat Basin.
Hence, the Respondent No.1/Applicant endorsed his no objection to the
Application filed under section 12(2) CPC.
I have heard Mr. Muhammad Shoaib Abidi Counsel for the
Petitioner, Mr. Syed Hasan Imam Counsel for the Respondent No.1 and perused the
material available on record with their assistance.
Instant Constitutional Petition has been filed against an
interlocutory/interim order passed by the learned Rent Controller on an
Application filed under section 16(1) Sindh Rented Premises Ordinance, 1979. Relationship between the parties as well as rate of rent of the
subject premises are not disputed. All the payments according to the
Lease Agreement were made by the Petitioner through pay-orders/cheques, which
is apparent from the receipt enclosed as annexure “B/1” at page 43 with the
Memo of Petition. Clause-4 at type page-3 of the Lease Agreement executed
between the parties on 15.09.2007 for a period of eleven months was upto
14.08.2008. According to Lease Agreement executed between the parties after
expiry of that lease agreement, lease may be renewed with mutual written consent
of lessor and lessee subject to one month prior written notice for further
period, therefore, submission of the learned Counsel for the petitioner that
after expiry of the Lease Agreement on 14.08.2008 the agreement was mutually and
verbally renewed for further five years and the Applicant paid advance of such
period is contrary to the terms of Lease Agreement referred to above. Moreover,
Petitioner has failed to mention in any of the pleadings any date and time when
the Petitioner had paid advance rent for five years as claimed by him from
15.09.2009 onwards to the Respondent No.1/Applicant. Learned Rent Controller in
the impugned order has observed that the Petitioner/tenant has not produced any
document to prove that he paid monthly rent to the applicant/Respondent No.1,
the relevant portion has already been reproduced above.
Since no Appeal is maintainable against the
interim/interlocutory order passed under section 16(1) SRPO, 1979 and there is
no irregularity/illegality in the impugned order passed by the learned Rent
Controller on Application under Section 16(1) SRPO, 1979. Writ petition is also
not maintainable against such order as sufficient alternative and efficacious
remedy by filing Appeal before the District Judge is available after passing
order to the Petitioner, if defence of the tenant is struck off under section
16(2) of the Sindh Rented Premises Ordinance, 1979.
Impugned order passed by the learned Rent Controller is
based upon material available on record and the learned Judge discussed reasons
in detail while allowing the application of Respondent No.1. Impugned order
passed by the learned Rent Controller under section 16(1) SRPO, 1979 on the
Application of the Respondent No.1 cannot be deemed to be without jurisdiction
or as corum-non-judice. Assertion made by the learned Counsel for the
Petitioner at this stage cannot be looked into for the simple reasons that the
order passed by the learned Controller directing the tenant to deposit the
arrears of rent and future rent during pendency of the case is purely interlocutory/interim
in nature and cannot be subjected to challenge by filing Constitutional
Petition before this Court as it amounts to defeat the intend of the legislature.
I am of the considered view that the present Constitutional Petition is not maintainable, therefore, the same is dismissed in limini.
Observations
made hereinabove are of tentative nature and the trial Court shall not be
influenced by any such observation.
Karachi,
Dated:
J U D G E