IN THE HIGH COURT OF SINDH AT KARACHI
C.P. NO. S-202 OF 2010.
Present:
Mr. Justice Irfan Saadat Khan.
Petitioner Muhammad Shamim Farooqui, through Mr. M. Saleem Bhatti, advocate.
Respondent No.1 Faisal Hadi through Mr. Raja Basantani, advocate.
Dates of hearing: 2-2-2011.
J U D G M E N T
IRFAN SAADAT KHAN, J: This constitutional petition has been filed against the judgment dated 14.9.2009 passed by learned II Additional District Judge, Karachi East in First Rent Appeal No.42 of 2009, dismissing the same and maintaining the Order of ejectment dated 19.1.2009 passed by learned V Senior Civil Judge and Rent Controller, Karachi East in Rent Case No.76/2007 filed by the respondent No.1.
2. Brief facts of the case are that Respondent No.1, who is the owner of Plot No.61-D-6 (Survey Sheet No.35-P/1), Block 6, PECHS, Karachi by virtue of purchase from its previous owner Nafisuddin vide conveyance deed dated 17.3.2006, filed Rent Case No.76/2007 under section 15 of the Sindh Rented Premises Ordinance, 1979 for ejectment of the petitioners on the ground of subletting and personal bona fide need of the landlord. The opponents/petitioners filed their written statement wherein inter alia they denied the existence of relationship of landlord and tenant.
3. The learned Rent Controller, vide order dated 19.1.2009, allowed the rent case and directed the opponents/petitioners to vacate and hand over the demised premises to the applicant/respondent No.1 within 60 days from the date of the said order. The petitioners, being aggrieved by the order dated 19.1.2009, filed First Rent Appeal No.42/2009, which was also dismissed vide the impugned judgment. It is against this Judgment that the present petition has been filed.
4. Mr. Muhammad Saleem Bhatti, learned counsel for the petitioner, submitted that no relationship of landlord and tenant exists between the parties as the demised premises was acquired by the brother of petitioner No.1 and father of petitioner No.2 for a lump sum amount of Rs.500,000 from its previous owner, namely, Nafisuddin son of Hakim Ghayasuddin, through his attorney Mrs. Shah Talat Khan, who, after issuing receipt in this regard, executed sale agreement in his favour and physical possession of the demised property was also handed over to him. Thereafter, in 2007, the petitioners were approached by the father of respondent No.1 and an agreement was executed between them for the sale of the demised premises for total consideration of Rs.3,200,000 and an amount of Rs.100,000 was paid in advance as token money. Thereafter, as per the learned counsel, the respondent No.1 and his father backed out from their commitment and filed the above rent case. The learned counsel also submitted that when the matter being agitated before the Rent Controller the petitioner was not allowed to adduce evidence and to produce relevant material before him. The learned Rent Controller, according to the counsel for the petitioners, also did not allow the petitioners to cross-examine the witness of the respondent No.1 and his side was closed. The application filed by the petitioners for re-opening their side was also dismissed. The learned counsel also submitted that in the appeal also the learned Additional District Judge, without considering the merits of the case, in a slipshod manner, affirmed the order passed by the learned Rent Controller. As a result, according to the learned counsel, the petitioners were condemned unheard. As such the judgment/order passed by the two Courts below are illegal and uncalled for.
5. Mr. Raja Basantani, learned counsel for the respondent No.1, on the other hand, submitted that it is an admitted position that the petitioners obtained the demised premises from its previous owner on the basis of pugree and it is a trite proposition of law that pugree could not be considered to be partake of the actual sale. He further submitted that a number of opportunities were provided to the petitioners but they remained absent on one pretext or the other and, therefore, the two Courts below were justified in passing the Judgment/Orders in their absence. In support of his contentions the learned counsel relied on a number of reported of reported judgments and submitted that the petition is liable to dismissed in limine.
6. I have heard both the learned counsel for the parties at length and have also perused the record.
7. A perusal of the memo of petition shows that the petitioners claimed that 40 years back the demised premises were purchased by father of respondent No.2, however, para 1 of the written statement filed by the petitioners/opponents in the Rent Case shows that the demised premises was obtained by the father of petitioner No.2 on Pugree basis. This fact is further confirmed by para 4 of the petition wherein it is admitted by the petitioners that “Petitioners and father of the Respondent Mr. Fazal Hadi were agreed to enter into a new sale agreement on new terms and conditions and total value of the house was fixed at Rs.32,00,000/- (Rupees Thirty two lac) and on the same day the Petitioners pad and respondent and his father received an amount of Rs.100,000/- (Rupees One Lac) as part payment..” In case, as per averment in para 2 of the memo of petition, the demised premises were purchased by the petitioner No.2’s father 40 years back, what was the need to enter into a new sale agreement. This is an attempt to twist the facts. Thus, from the foregoing it is established that the property was never purchased by the father of the petitioner No.2 at any time but was let out to him by the previous owner of the property, namely, Nafisuddin on pugree system. So far as tenancy on Pugree system is considered it is a trite law that the same was not recognized by law and, therefore, the tenant could not claim any right on the basis of such illegal transaction. Reference in this regard may be made to 2004 MLD 587.
8. So far as the submission of the learned counsel for the petitioners that no opportunity was hearing was provided to the petitioners and that they were condemned unheard, penultimate para of the order dated 22.12.2008, passed on the application for re-opening of the side of the petitioner, may be quoted, which reads as under:
“Perusal of case file shows that the applicant filed rent application against the opponent for eviction. The opponent had filed written statement, and the evidence of the applicant’s side had been concluded on 8.4.2008. Thereafter the mater remained for evidence of opponent’s side but the opponent had failed to appear in the witness box though chances were provided. It is further revealed from case file that last and final chances were also provided to the opponent to lead the evidence, but to no avail, and finally vide order dated 17.12.2008 the side of the opponent for leading evidence was closed. Hence the matter remained for opponent’s evidence for about 8 months. Therefore, enough opportunities have already been provided to the opponent for leading evidence.”
9. Thus, from the above, it is crystal clear that enough opportunity was provided to the opponents/petitioners to lead evidence but they failed to do so. In such situation it would be absolutely incorrect to say that the petitioners were condemned unheard. The courts can only provide opportunity to a party to lead evidence but cannot compel it to do so.
10. So far as merits of the case are concerned, the learned Rent Controller, vide his Order dated 19.1.2009, allowed the rent case on both the points of personal requirement as well as subletting. The appellate Court also maintained the findings of the learned Rent Controller. Thus, there are concurrent findings against the petitioner on the points of subletting and personal requirement. However, the learned counsel for the petitioners did not utter a single word on the findings on the said questions. Even otherwise this Court, in its constitutional jurisdiction, cannot interfere with such findings of facts of the Courts below.
11. Learned counsel for the petitioners has not been able to show any non-reading or mis-reading of the evidence calling for interference by this Court.
12. In view of the above narrated uncontroverted facts and the concurrent findings of the two Courts below in favour of the respondent No.1, I do not find any merit in this petition and the same is accordingly dismissed in limine together with the pending application.
Karachi, the ___ February, 2010. Judge