IN THE HIGH COURT OF SINDH, KARACHI

 
Constitutional Petition No.S-575 of 2008

  

   Present

    Mr. Justice Aqeel Ahmed Abbasi

 

Naseeruddin and another                    … …………………………..…...Petitioners

 

 

Versus

 

 

Syed Daulat Ali and others.               ………………………………  Respondents

 

Date of hearing                       :               17.02.2014

Date of judgment                    :               10.07.2014

 

 

Mr. Imran Ahmed, Advocate for the Petitioners.

M/s Muhammad Haseeb Jamali, Raheem Shah and Rasheed Ashraf, Advocates for the Respondent.

-----------------------    

 

JUDGMENT

 

Aqeel Ahmed Abbasi, J:  The petitioners namely Naseeruddin and Shahid, who claimed to be the tenants in respect of Shop No.1, Plot No.R-303-304, situated at Mustafabad, Nusrat Bhutto Colony, North Nazimabad, Karachi, through instant petition have impugned the judgment dated 13.10.2008, passed by the learned 1st Additional District Judge, Central Karachi, in F.R.A. No.99/2007, whereby the appeal filed by the respondent No.1 landlord was allowed and the order passed by the learned Rent Controller/IVth Senior Civil Judge, Karachi Central, was set-aside.

 

2.         Briefly the facts as recorded by the Appellate Court are that respondent No.1 Syed Daulat Ali son of Murad Ali is the owner/landlord of Shop No.1, Plot No.R-303-304, situated at Mustafabad, Nusrat Bhutto Colony, North Nazimabad, Karachi, and respondent No.2 namely Syed Muhammad Abdullah was the tenant in respect of the said shop. The said shop was given on rent (goodwill basis) by respondent No.1, whereas, the respondent No.2 (tenant) Syed Muhammad Abdullah took over the physical possession of the said shop w.e.f. 06.11.1995. The said agreement was reduced in writing vide tenancy agreement dated 09.06.1997. Initially the rent of premises in question was Rs.600/- only to be paid in the first week of every month. Thereafter, it was enhanced from Rs.600/- to Rs.720/- per month. As per record, the respondent No.2, namely, Syed Muhammad Abdullah deposited an amount of Rs.150,000/- in respect of the subject premises as security deposit/goodwill. The respondent No.2 continued to pay rent to respondent No.1 upto January, 2005, thereafter, the respondent No.2 has sublet the premises in question to the petitioners on 02.02.2005, without consent of the respondent No.1. Respondent No.1 Syed Daulat Ali filed ejectment application against respondent No.2 and the petitioners, being Rent Case No.203/2005 in the Court of VIth Senior Civil Judge/Rent Controller, Karachi Central, seeking ejectment of the petitioners and respondent No.2 on the ground of default in payment of rent and subletting. The respondent No.1 was examined on Oath and produced the evidence in support of his claim, whereas, the petitioners also filed written statement and the evidence in support of their contentions.

 

3.         The Rent Controller/VIth Senior Civil Judge, Central Karachi, formulated the following points for determination:-

1)         Whether the opponent No.1 has sublet the shop in question to opponent No.2 and 3 in violation of tenancy agreement?

2)         Whether the opponents have committed willful default towards payment of rent of shop in question?

3)         What should the order be?          

 

4.         After examining the evidence of both the parties, the Rent Controller/VIth Senior Civil Judge (Central) Karachi, dismissed the rent application vide order dated 28.03.2007. The order of the Rent Controller was assailed by respondent No.1 by filing First Rent Appeal No.99/2007 before the learned 1st Additional District Judge (Central) Karachi, which was contested by the petitioners as well as respondent No.2 through their Advocates. The learned 1st Additional District Judge (Central), Karachi, after examining the evidence and the record of the case allowed the appeal as prayed and set-aside the order of the Rent Controller with the direction to the petitioners to handover the vacant and peaceful possession of the subject shop to respondent No.1 within 60 days from the date of order subject to payment of rent of the said period, whereas, respondent No.1 was also directed to deposit the amount of Rs.150,000/-, which was received by way of pugri amount after deducting the rent for the month of February, 2005.

 

5.         Being aggrieved by the aforesaid order passed by the learned 1st Additional District Judge (Central), Karachi, in the F.R.A., the petitioners have filed instant Constitutional Petition with the prayer to set-aside the impugned judgment and to restore the order of the Rent Controller in the instant case.

 

6.         Learned counsel for the petitioners, after having readout the impugned judgment and the order passed by the Rent Controller in the instant case, has contended that the learned Appellate Court was not justified to set-aside the order passed by the Rent Controller as the same was passed on proper reading of evidence and correct application of law to the facts of this case. It has been argued by the learned counsel that the subject shop was initially given on rent after receiving an amount of Rs.1,50,000/- towards Pugri by the respondent No.1 Syed Daulat Ali, to respondent No.2 Syed Muhammad Abdullah, pursuant to a tenancy agreement dated 09.06.1997 on monthly rent of Rs.600/-. However, per learned counsel, in terms of clause-4 of such agreement, the tenant was given a right of subletting the shop to any person on goodwill basis. It has been further contended that in terms of clause-6 of the said agreement the landlord was bound to change the receipt in the name of sub-tenant, however, the respondent No.1 instead of changing the receipt in favour of the petitioners in respect of subject tenement, filed ejectment case against the previous tenant i.e. Respondent No.2 in the instant case. Learned counsel further submitted that respondent No.2, while sub-letting the subject shop to the petitioner after making payment of substantial amount towards goodwill/pugri also duly informed the respondent No.1 about such transaction inspite of the fact that right to sub-let the said shop was acknowledged in terms of clause-4 of the said agreement. Per learned counsel, the learned Appellate Court has failed to appreciate that under Sindh Rented Premises Ordinance, 1979, there is no prohibition with regard to receiving amount of pugri in respect of rented premises as in contradiction to provision of Section 7 of West Pakistan Urban Rented Premises Ordinance, 1959, which provided for such prohibition. Learned counsel further argued that in terms of Sindh Rented Premises Ordinance, 1979, subletting of the premises with the consent of the landlord is not prohibited, whereas, in the instant case there was specific clause, which authorized the previous tenant to sublet the premises to the petitioners. It has been contended by the learned counsel that the learned Appellate Court was not justified to disregard the entire agreement between the parties on the pretext that since the pugri has not been recognized as legal tender, therefore, the agreement cannot be enforced. Per learned counsel, in terms of Section 23 and 24 of Contract Act, 1872, only such provisions of the agreement which are contrary to law or public policy cannot be enforced by law, whereas, the provisions which are not in violation of any law can still be enforced through process of law and entire agreement will not become illegal or void. Learned counsel further submitted that in the instant case, the subletting of the subject premises by respondent No.2 was with the consent of respondent No.1, whereas, the petitioners have paid substantial amount of pugri as consideration, hence the petitioners cannot be deprived from their right to occupy the subject premises on technical grounds. Learned counsel for the petitioners has also argued that if no weightage is to be given to the goodwill agreement then its benefit also cannot be extended to the respondent No.1 only, as a party at fault, cannot take advantage of its own wrong. In support of his contention, learned counsel has placed reliance in the following cases:-

(1)   Dip Narian Singh v. Nageshar Prasad & others AIR 1930 ALL 1

(2)   Babasaheb Rahimsaheb v. Raja Ram Raghunat Alpe AIR 1931 Bom. 264

 

(3)   Muhammad Khalilur Rehman Khan v. Mohammad Muzammilullah Khan AIR 1933 All 468

 

(4)   Haji Dawood v. Mst. Rahima Bai & another PLD 1980 Karachi 126

 

(5)   Mrs. Zehra Begum v. Pakistan Burmah-Shell Ltd. PLD 1984 SC 38

 

(6)   M.K. Muhammad v. Muhammad Aboobakar 1991 MLD 801

 

(7)   Nadeem Ahmed Mirza v. Mrs Shah Sultana Begum & another PLD 1994 Karachi 177

 

 

7.         Conversely, learned counsel for the respondent No.1 has vehemently opposed the contention of the learned counsel for the petitioners and has raised an objection with regard to the maintainability of the instant petition. It has been contended by the learned counsel for respondent No.1 that no jurisdictional error or illegality in the impugned judgment passed by the learned 1st Additional District Judge (Central) Karachi in F.R.A. No.99/2007 has been pointed out by the learned counsel for the petitioners, which is otherwise based on proper reading of evidence and correct application of law, therefore, the petitioners are not justified to invoke the constitutional jurisdiction of this Court under Article 199 of Constitution of Islamic Republic of Pakistan, which has a very limited and restricted scope in rent matters. It has been further contended by the learned counsel for the respondent No.1 that through instant petition, the petitioners, who admittedly, did not have any privity of contract with respondent No.1, have assailed the impugned judgment passed by the learned 1st Additional District Judge (Central) Karachi, whereas, the respondent No.2, namely Syed Muhammad Abdullah, to whom the subject premises was given on rent by respondent No.1 has not filed any appeal or petition against the impugned  judgment, therefore, per learned counsel, the petition filed by the present petitioners in the instant case, besides being misconceived in fact and law, is liable to be dismissed on this account as well. Learned counsel has also referred to written statement filed by the petitioners before the Rent Controller and submitted that the petitioners did not even consider themselves as tenant in respect of subject shop, on the contrary, claimed to be the owners of the premises for having paid the alleged amount of goodwill to respondent No.2. It has been further contended by the learned counsel that the agreement dated 09.06.1997 referred by the petitioners in the instant case is merely a pugri agreement and not tenancy agreement, whereas, the subsequent pugri agreement allegedly executed between the petitioner and respondent No.2 is a fraudulent document as the same does not even refer to previous agreement dated 09.06.1997 executed between the respondent No.1 and respondent No.2 in respect of subject premises. Per learned counsel, if reference is to be made to the provisions of pugri agreement then subletting of the subject premises, without consent of respondent No.1, is of no legal value, whereas, there is no privity of contract between the petitioners and respondent No.1 in respect of subject premises. Per learned counsel, it is a clear case of default in payment of rent and subletting of the subject tenement by the tenant without consent of landlord i.e. respondent No.1, hence the impugned judgment passed by the 1st Additional District Judge, Central Karachi, directing the petitioners to vacate the subject tenement and to handover physical vacant possession to the respondent No.1 does not suffer from any error or illegality. Moreover, per learned counsel, the respondent No.1, pursuant to directions of the Court, has already deposited the amount of deposit/pugri amounting to Rs.150,000/- before the Nazir, which also reflects upon the good faith on the part of the respondent No.1. It has been further contended by the learned counsel for the respondent No.1 that his client is an old man of infirm health, who is being deprived the fruits of his property i.e. the subject shop on technical grounds and frivolous proceedings filed by the petitioners, whereas, instant petition is pending since 2008. It has been prayed that instant petition may be dismissed with cost. In support of his contentions, learned counsel for respondent No.1, has placed reliance in the following cases:-

 

1,         Muhammad Ilyas v. Mst. Khursheed Begum 1989 CLC 506

2.         Syed Mehmood Ali Shah v. Zulfiqar Ali PLD 2013 SC 364

3.         M.K. Muhammad v. Muhammad Abobakar 1991 MLD 801

4.         Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99

5.         Muhammad Aslam v. Hanif Abdullah & Brothers 2003 SCMR 1667

 

6.         Raees Ahmed Pasha v. Kamaluddin 2004 MLD 587

7.         Azizur Rehman v. Pervaiz Shah 1997 SCMR 1819

8.         Almas Khan v. Mrs. Bano PLD 2009 Karachi 268

9.         The Hub Power Co. Ltd (HUBCO) v. Pakistan WAPDA PLD 2000 841

 

 

8.         I have heard both the learned counsel for the parties, perused the record and examined the case law relied in support of their contention. Admittedly, the subject tenement i.e. Shop No. 1, Plot No.303-304, situated at Mustafabad, Nusrat Bhutto Colony, North Nazimabad, Karachi, is owned by Syed Daulat Ali son Murad Ali, respondent No.1 in the instant petition, who being the landlord let-out the same on rent to Syed Muhammad Abdullah, respondent No.2 in the instant petition, vide Agreement dated 9.6.1997 on monthly rent of Rs.600/- after receiving an amount of Rs.1,50,000/- towards pugri/deposit. The rent of the said shop was subsequently enhanced from Rs.600/- to Rs.720/-, which the respondent No.2 continued to pay to respondent No.1 upto January, 2005 and thereafter the respondent No.2 sub-let the subject shop to the petitioners on 2.2.2005 and stopped making payment of rent to the respondent No.1 (owner/landlord). The respondent No.1 namely, Syed Daulat Ali filed ejectment application against the respondent No.2 and the petitioners, being Rent Case No.203 of 2005, in the Court of VIth Senior Civil Judge and Rent Controller (Central) Karachi, seeking ejectment of the petitioners and respondent No.2 from the subject shop on the ground of default in payment of rent and sub-letting of the shop without consent of respondent No.1 (owner/landlord). The Rent Controller vide order dated 28.3.2007 dismissed the rent case filed by respondent No.1. The order of Rent Controller was challenged by respondent No.1 (owner/landlord) through an F.R.A No.99 of 2007 in the Court of Ist Additional District Judge, Karachi Central, who vide impugned judgment dated 13th October 2008 set aside the order of the Rent Controller and allowed the appeal filed by respondent No.1 in the following terms:

 

“The up-shot of the above discussion is that the impugned Judgment/order passed by the trial Court is not legal, proper and accordance with law, as such, the same is not sustainable in this Appeal. I, therefore allow the appeal of the appellant as prayed with no order as to cost and set aside the impugned Judgment/Order of the trial Court. The Respondents are directed to hand over the vacant and peaceful possession of the shop in question to the Appellant within 60 days from the date of passing of this order, subject to payment of rent of the said period. The Appellant is directed to deposit amount of Rs.1,50,000/- which he was received being Pugri amount after deducting the rent from the month of February, 2005 and deposit the same with the Nazir of trial Court within 30 days from the date of this order.”

 

9.         Admittedly, the petitioners in the instant case do not have any privity of contract with respondent No.1 (owner/landlord) in respect of subject shop, and have claimed their entitlement and possession over the subject shop pursuant to a subsequent Good Will Agreement dated 2.2.2005 executed between the petitioner No.1 namely, Naseeruddin and respondent No.2 namely, Syed Muhammad Abdullah. From perusal of the terms of such agreement, it has been noted that there is no reference of previous Good Will Agreement dated 9.6.1997, which was initially executed between respondent No.1 (owner/landlord) namely, Syed Daulat Ali and respondent No.2 (tenant) namely, Syed Muhammad Abdullah, hence such purported Good Will Agreement looses  the continuity and the linkage regarding entitlement of the petitioners to acquire any valuable right over the subject shop, whereas, it also reflects upon the unauthorized sub-letting of the subject shop without consultation of respondent No.1 (owner/landlord). Learned counsel for the petitioners has mainly relied upon the provisions of the two Agreements to substantiate the claim of the petitioners in respect of their entitlement and possession over the subject shop, particularly clauses (4), (5) and (6) of Agreement dated 09.06.1997, which according to learned counsel for the petitioners, authorised the tenant to let-out the subject shop to any person on Good Will basis, whereafter, according to learned counsel, the landlord was bound to change the receipt. However, when the attention of the learned counsel for the petitioners was drawn to provision of clause (5) of such agreement, which required the consultation and permission of the owner/landlord before sub-letting the shop to any other person, which consultation or permission has categorically been denied by respondent No.1 (owner/landlord) in the instant case, learned counsel for the petitioners could not refer to any evidence on record to show that while sub-letting the subject shop by respondent No.2 to the petitioners, any consultation was made or permission was obtained from the respondent No.1 (owner/landlord). Similarly, while confronted as to why in the subsequent Good Will Agreement executed on 02.02.2005 between Respondent No.2 and Petitioner No.1, reference to the previous agreement was not made, the learned counsel for the petitioners could not satisfactorily respond to such query as well. It will not be out of place to observe that the concept of sub-letting of a tenement, without consent of landlord by the tenant to some other person, is alien to the provisions of Sindh Rented Premises Ordinance, 1979. On the contrary, sub-letting has been recognized as a valid ground for seeking ejectment of the tenant from the rented premises. It may be further observed that the title of an immovable property or the right of possession, other than the possession of a recognized tenant, if disputed, has to be decided by the Civil Courts of competent jurisdiction through evidence, whereas, the Sindh Rented Premises Ordinance, 1979 only caters to the disputes arising between the landlord and tenant in respect of a rented premises.

 

10.       In the instant case the owner/landlord of the subject tenement filed an ejectment application under Section 15 of Sindh Rented Premises Ordinance, 1979 seeking ejectment of respondent No.2 (tenant), who admittedly sub-let the subject tenement to the petitioners, without consent of the owner/landlord. Whereas, the petitioners (sub-lettees) and the respondent No.2 (tenant) have not disputed the relationship of landlord and tenant between the respondents No.1 and respondent No.2, nor they have denied the fact regarding default in payment of rent by respondent No.2 (tenant) to the respondent No.1 (owner/landlord) and sub-letting by the respondent No.2 (tenant) to the petitioners (sub-lettees). From perusal of the evidence produced by the parties in the instant case, it has been established that the respondent No.2 (tenant) has defaulted in payment of rent of the subject tenement to respondent No.1 (owner/landlord) and has also sub-let the subject tenement to the petitioners, without consent of respondent No.1 (owner/landlord), therefore, the necessary consequence of hereinabove admitted position was to allow the ejectment application filed by respondent No.1, which was wrongly declined by VIth Senior Civil Judge and Rent Controller (Central) Karachi, in the instant case through his order dated 28.05.2007, whereas, such order has been rightly set aside by the 1st Additional District Judge (Central) Karachi vide impugned judgment dated 13th October 2008.

 

11.       Since it has been observed hereinabove that the Sindh Rented Premises Ordinance, 1979 only caters to the disputes between the landlord and tenant in respect of a rented premises, therefore, this Court is not inclined to dilate upon the validity or otherwise of the purported Good Will Agreements as referred to hereinabove. Moreover, the amount of pugri has not been recognized by the superior Courts as a legal tender and it has no bearing on rent proceedings. The submissions made and the case law relied upon by both the learned counsel regarding validity and the effect of the Good Will Agreement(s) in the instant case is accordingly of no relevance for the purposes of the disposal of the instant Constitutional Petition filed in a rent case, whereas, parties are at liberty to seek resolution of such dispute by filing appropriate proceedings before the proper Court of civil jurisdiction in accordance with law.

 

12.       In the case of Azizur Rehman v. Pervaiz Shah and others 1997 SCMR 1819, it has been held as under:

“6.       Now examining the plea relating to payment of ‘Pagri’, it may be seen that same admittedly does not form terms or condition of tenancy. There is hardly any doubt that concept of ‘Pagri’ is contrary to public policy, therefore, on the settled principles, any supra-contractual arrangement which negates tenancy, would not affect maintainability of eviction proceedings. The observations of this Court in case Sheikh Muhammad Yousaf v. District Judge, Rawalpindi and 2 others (1987 SCMR 307) are sufficiently instructive on this aspect, therefore, operative part is reproduced below:-

 

“We have carefully considered these arguments of the learned counsel for the petitioner-tenant. The Courts below had held that the respondent-landlord was successful in establishing a bona fide personal need of the said shop and, therefore, while exercising Constitutional jurisdiction the learned Single Judge of the Lahore High Court, Rawalpindi Bench was justified in observing that since that issue had been correctly and properly resolved it being a question of fact was not reviewable in the exercise of Constitutional jurisdiction. According to the lease agreement the shop had been let out to the tenant-petitioner for a fixed period of ten years with a right of re-entry reserved by the respondent-landlord, but it is not mentioned in the lease deed that the respondent landlord had received  Rs.11,000 as Pugree from the petitioner-tenant, although it is so stated by him in its statement before the Rent Controller. However, that being mutual arrangement between the parties, would not debar the respondent-landlord from instituting eviction proceedings on the ground of bona-fide personal need.”

 

Similar principle has been discussed in Messrs M. Qasim v. Sharbat Khan 1992 MLD 1225, M.K. Muhammad and another v. Muhammad Abu Bakaar (1993 SCMR 200) and Saeed Muhammad v. Mehrullah and another (PLD 1996 Quetta 48). Additionally, Rent Controller and Appellate Authority, Mardan have clearly disbelieved the plea pertaining to payment of ‘Pagri’ by the petitioner. Therefore, Constitutional jurisdiction for challenging said decision could not be legitimately invoked. Impugned order/judgment on this score does not suffer from any defect or legal infirmity.”

 

13.       In the case of Muhammad Aslam and others v. Hanif Abdullah & Brothers through Proprietor 2003 SCMR 1667, it has been held as under:-

“The practice prevalent in old areas of Karachi City is that shops and apartments change the hands from one tenant to another on payment of Pagri subject to change of receipt by the landlord in the name of incoming tenant and the landlord only gets fixed percentage of commission on the Pagri amount for the change of receipt but in case no change in receipt is made by the landlord, the incoming tenant in respect of the premises would not pay Pagri amount to the original tenant who in return would not hand over possession to the proposed incoming tenant and the landlord would not in any case put him into possession of premises to enable him to use the said shop for his personal requirement consequently incoming tenant would not be put into unauthorized possession of the premises by the original tenant to entitle the landlord to sue the new occupant of the premises for sub-letting.”  

 

14.       Moreover, the amount of Rs.1,50,000/-, which was deposited by respondent No.2 (tenant) has already been deposited by respondent No.1 (owner/landlord) with the Nazir of the trial Court as per directions contained in the impugned judgment. It is pertinent to mention here that the tenant, Syed Muhammad Abdullah has not challenged the impugned judgment passed by the 1st Additional District Judge (Central) Karachi, against whom ejectment case was filed on the ground of default in payment of rent and sub-letting, whereas, instant petition has been filed by the sub-lettees only with whom admittedly there is no privity of contract of respondent No.1 (owner/landlord) in respect of subject tenement.

 

 

15        In view of hereinabove facts and circumstances of the case, I do not find any merits in the instant petition, which is hereby dismissed alongwith listed applications with no order as to cost. Since the landlord in the instant case filed ejectment application in the year 2005, whereas, the First Rent Appeal was decided in his favour on 13.10.2008 and since then instant petition is pending disposal, therefore, the petitioners are directed to handover the vacant and peaceful possession of the shop in question to respondent No.1 namely, Syed Daulat Ali son of Murad Ali within two months from the date of announcement of this judgment. If the petitioners fail to vacate and handover the peaceful possession of subject shop to the respondent No.1 (owner/landlord) namely, Syed Daulat Ali within two months from the date of announcement of this judgment, the Writ of Possession shall be issued without notice with police aid, and the possession shall be handed over to the respondent No.1 (owner/landlord).

 

Petition stands disposed of alongwith listed applications in the above terms.              

 

                                                                                                                   J U D G E