C.P.No. S-188 of 2003

ORDER

Date of hearing: 27-3-2003.

Petitioner: Mst. Fatima since deceased through her husband

Haji Jan Muhammad through Mr. Latif A.Shakoor

Advocate.

Respondents: Mst. Bushra Shahid, in person.

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MUHAMMAD SADIQ LAGHARI, J. The facts relevant to this order as appeared from the record are that Mst. Fatima w/o Jan Muhammad was tenant in respect of tenement No. 1 to 3 on first floor and 7 to 9 on the third floor, Amina Manzil, Plot No. G-K-1/2631, Ghulam Hussain Qasim Quarters, Near Punjab Club, Kharadar Karachi. The tenement were let out to her by original owner Sherali Muhammad. After death of Sherali his wife was receiving the rent of tenement as landlord. On 31. 5.1999 same tenements were sold by Fatima Khanem to Azhar Abbas through registered sale deed, thereafter Azhar Abbas served statutory notice under Section 18 of Sindh Rented Premises Ordinance 1979 upon the lady tenant on 11.6.1999. Despite that notice the lady tenant first tendered the rent to previous owner through money order but she refused to accept the same. After that the rent was tendered to Azhar Abbas through money order but he too declined to accept it.

On 7.8.1999 Azhar Abbas gifted the tenements to his mother Bushra Shahid who served notice under Section 18 of Sindh Rented Premises Ordinance 1979 upon the lady tenant. After that the lady tenant sent the rent to Bushra Shahid through money order but the same was not accepted. She then deposited the rent in the Court in Misc. Rent Case 914 of 1999.

On 25.8.1999 Bushra Shahid the respondent No.1 filed Rent Case against Mst. Fatima the tenant for ejectment on the ground of bonafide personal need. Petitioner/tenant filed written statement pleading therein that the respondent No.1 Bushra Shahid made demands for enhanced rate of rent and thereafter filed the ejectment application. She pleaded further that the ejectment application was frivolous and vaxcious and without justification and the Respondent No.1 had not produced title documents therefore could not claim to be the landlady. It was also pleaded by the lady tenant that the title of the Respondent No.1 had come under clouds in consequence of institution of a Suit No. 209 of 2000 (Mst. Zubeda Bai & others Vs. Mst. Fatima Khanem and others) Whereby, the title of Fatima Khanem the original landlady and transferor to Azhar Abbas was challenged.

After recording the evidence the learned IVth Rent Controller ordered the ejectment of lady tenant by judgment dated 12.5.2000. As Fatima the lady tenant had expired her husband Jan Muhammad appealed against the ejectment order. He filed two appeals one in the name of Mst Fatima through Jan Muhammad and the other by him. Those were F.R.As No. 455 & 457 of 2001. Both of the appeals were dismissed by the learned District Judge Karachi South on 22.1.2003, thereafter the concurrent finding have been assailed through two Constitutional Petitions No.179 of 2002 and 188 of 2002. One is in the name of Haji Jan Muhammad and the other in the name of Mst. Fatima through her husband Jan Muhammad. In fact after demise of Mst. Fatima her husband Jan Muhammad stepped in her shoes and could himself take her place but, it appears, he filed one petition in the name of Mst. Fatima together with his own petition as an abondunt caution. Legally a dead person can not file a petition. However the two petitions being same in substance shall be disposed of by this order.

Petitioner’s learned Advocate agitated one point only. He argued that the petitioner/opponent (tenant) had challenged the status of Respondent No.1 Bushra as landlord but the learned Rent Controller failed to appreciate that preliminary objection and did not frame the preliminary issue on the question of relationship. That the nature of the objection was such that the Rent Controller was compulsorily required to determine first the preliminary question of relationship before entering into the question of personal requirement That for the judgment of the Rent Controller and also the judgment of District Judge are illegal.

No doubt the question of relationship is fundamental one and if there is dispute relating to relationship it is to be resolved as preliminary issue. However the dispute is essentially required to be the legitimate and real one and not an artificial and baseless. In present case the petitioner lady tenant has been admitting to be the tenant in respect of the demise premises. She also admitted that she was tenant of Mst. Fatima the original owner of the premises. It is also admitted fact that after receipt of notice under Section 18 of Sindh Rented Premises Ordinance, 1979 from Respondent No.1 the rent was tendered to her through money order and after her refusal to receive the same it was deposited in the Court. Thus on one hand the rent was being offered to the Respondent Bushra Shahid and on the other it was being asserted that she has not produced the title documents i.e. Sale Deed, therefore is not entitled to claim herself to be the landlord. The plea of the petitioner in respect of the production of the title documents is self contradictory as on one hand she pleaded that the Respondent No. 1 had not produced the title documents and on the other hand she also pleaded that title of Fatima Khanem from whom Azhar Abbas purchased the demised premises was challenged through Suit No. 671 of 1999 therefore title of Azhar Abbas and then Bushra Shahid had come under clouds. By pleading that it was admitted that Azhar Abbas had purchased from Fatima Khanem and then transferred to his mother Bushra Shahid. Thus the petitioner impliedly, if not expressly, admitted the transfer of title to the Respondent No.1 from Fatima Khanem whom she was admitting to be her original landlord. Since the driving of title by Azhar Abbas and his mother from Mst. Fatima Khanem was not disputed clearly and also the rent was tendered first to Azhar Abbas and then to his mother to Bushra Shahid. Thus the status of the Respondent No.1 as landlord was not under real and legitimate challenge. The so called dispute by the petitioner being baseless was unfair and with ulterior motive therefore did not require the framing of preliminary issues regarding the relationship.

In the result of above no interference in the impugned judgments is warranted. Consequently, the petitions are dismissed in limine.

JUDGE