Qasim S/o Ghani Babra (Petitioner) VS Dawood and Others (Respondent)

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C.P No.S-'I385 of 2023

Qasim

Vs.

Dawoocl & others

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Mr. Justice Mohanrmad l(arinr l(han Agha

Dllcsol'lrearing : l9-08-2024 Dccidecl otr : l9-08-2024

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BEFORE THE HON'BLE H IGH COURT OF S DH [Tl*oo^.r, Constitution PetitionNo., - I98\r ron oAstM s/o GHANI BABRA 6ds Muslim, Adult resident of Flat No. B-l I 5th Floor, Maryam Garden, Plot No. 2202/A, Street No.5, New I(humarwara, Lyari Town, I(arachi.....,........... ......... Petiti,

VERSUS

I DAWOOD S/O USMAN

Muslim, Adult, resident of, Plot No. Al<-24-6-5-24, Street No.2. New l(huniarwara, Lyari Town,l(arachi,

2 LEARNED XII ADDL. DISTRICT & SESSIONS JUDGE

South at l(arachi.

3 Learned 3'dsENloR ctvtL JUDGE

&RENT CONTROLLER

South at l(arachi................. Respondents

CONSTITUTIONAL PETITION UNDER ARTICLE I99

OF ISLAMIC ITEPUBLI OF PAKISTAN- 1973-

Being aggrieved and cJissatisfiecl with the order dated:-Z1- 11-ZAZ3, passed by the Learned Xll Additional District & Sessions Judge South at l(arachi (respondent No.02 ), in F. R.A No.2 17/2023, and Order Dated:- O4-OB'2O23 passed by the learned'3'd S.C.J. / Rent Controller l(arachi South at l(arachi, in Rent Case No.l43/2019, wherein the Hon'ble trail Court allowed application under Section I5 of Sindh rented ordinance 1979, filed by the respondent No.0l and issued difections to the Petitioner to deliver vacant and peaceful possession of premises

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i.e., Flat No.B- l I , sth Floor, Dawood B.D, compound, Plot No.LZO2/A, lAl<-2+-3-S-50) Street No. 5, New l(umharw'aralyari Town l(arachi. within 3O days from the date of order, although Petitioner prefer FRA No.zoll/zaz3, wherein 1'tpetitioner court

ORDtrR SHEET

N HA C I

N HI URT

CP No S-i385 of2023 DATE RD trR WITH SI GNATURtr o F JUD G a

He. / prioriW

I For hearing of MA No. 1O I 16 I 2023 2 For hearing of main case.

Mr. Abdul Nabi, Advocate for the Petitioner.

Mr. Sheheryar Qazi, & S. Arshad Hussain Naqvi, Addl.

A.G.

IWHAAIMAD KARIM KHAN AGHA.J., The landlord Dawood moved Rent Case No.143 of 2AL9 in the Court of IIIrd Rent Controller (South at Karachi for return of his Property known as Dawood B.D. Compound situated at Plot No.22O2/A (AK-24-3-S-50), Gali No.S, New Kumhar Wara near Gabol Park, Lyari Town, Karachi (the Property) on the basis of default in payrnent of rent by the lenant.

2.The main ground raised by the tenant who is the petitioner in this case tJ:at there was no relationship of landlord and tenant between the parties. The trial Court vide judgment dated 04.8.2023 rejected his arguments and through the impugned judgment allorved the ejectment application.

3.Being aggrieved and dissatisfied by the impugned judgment mentioned above the tenant filed an Appeal in the Court of Addl.

District Judge-XII / Model Civil Appellate Court Karachi-South, rvhich in FRA No.21712023 vide judgment dated 21.11.2023 upheld rhe

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impugned judgment. Hence the appellant has moved this petition against the impugned judgment and appellate judgment.

4.As noted facts of the case are that the petitioner f appellant was the tenant of the Property as claimed by the landlord who was in t

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default of rent. This led to the landlord filing an application for ejectment of the tenant / petitioner from the Property. Such ejectment was allowed by the impugned judgment. and was maintained by the appellate judgment.

5.The main contention ol lhe petitioner/appellant/tenant is that no relationship of landlord and tenant existed between him and the Iandlord and as such he could not have been ejected as a tenant based on a sale agreement,

6.Appellate judgment whiist addressing this point it held as under:-

"15. I have considered the arguments advanced by the learned Advocates for the Appellant. The findings and reasons recorded by the learned IIIrd Rent Controiler Karachi South, qua relationship of landlord & tenant between Respondent No. I and Appellant and default in payment of rent and maintenance, has been jr:xtaposed with the evidence adduced by the Respondent No. 1 and Appellant and on careful analysis of evidence, I am of the view that Appellant has admitted his induction in the demised premises as Tenant in Para -2 of the written statement, however, has averred and deposed t}rat he has purchasecl the demised premises through sale agreement dated 23.O2.2018 in total sale consideration of Rs.20,OO,00O/= and alter the purchase of the demised premises through sale agreement he became owner of the demised premises and was not liable to pay the rent to the Respondent No. 1. The stance and version taken by the Appellant qua termination of relationship of landlord and tenant on the basis ol sale agreement, is not basecl on backing of law as agreement of sale is not a document of title/ownership rather it is a document to obtain another document from the seller. Suffice it to say that the sale agreement is not a title document but at the most grants a right to sue for such title as well as rights arising out of such sale agreemenl. More-over, in the context of claim of terminalion of relationship of landlord and tenant, it is trite law that where a person rvho has been inducted as a tenant in the demised premises and )" he/tenant claims that he has purchased the demised premises subsequently, then, such tenant has to vacate the demised premises hrst and obtain a decree of specific performance against the seller to entitle him to recover the possession of lhe demised premises. Scanning of the impugned judgment shows that this aspect has been considered and attended by the learned Ist Rent Controller I(arachi South in Point No. i and in my considered vier,v, the finding recorded by the learned Ist Rent Controller"

I(arachi South are inconsonance with the judgment with the Hon'ble Apex Court. Guidance may be sought from the principles laid-dorvn in the case o[ Syed Imran Ahmed v. Bllat and othcrs [PtD 2OOg SC 546] wherein it u,as hcld ns rrndcr:

"5. lt is 1:rirrcilllc too rvcll cstablished by now that a sirlc agrccurcrrt clicl nol itscll creale any interest cvcll a cltnrgc on thc propcrty in dispute that ttnlil<c thc lnrv in Dngland, the law in Pakistan dicl not recognizc any distirrction bctween the real and cquitablc cstatcs, that a sale agreement did not confcr any litle on the person in whose favour such an agreemetrt was executed and in fact it only granted him the right to sue for such a title and further that such an agreement did not affect the rights of any third parly involved in the mattcr. It may be added that till such time that a person suing for ownership of a property obtains a decree for specific performance in his favour, such a person cannot be heard to deny the title ol the Iandlord or to deprive the landlord of any benefits accruing to him or arising out of the property which is the subjecl matter of the litigation. Postponing the ejectment proceedings to await the firral outcotrte of a suit for specilic performance would be causing serious prejudice to a landlord and such a practice, if approved by this Court, rvould onl1' give a license to un-scrupulous tenants to defeat the interests of the landiords who may be filing suits for specific performance only to delay the inevitable and to throw spanners in the wheels of larv and justice."

16.In another case of Abdul Rasheed v. Maqbool Ahmed and others [2OIL SCMR 32O] it has been held as under:

"5. It is settied law that where in a case fileci for eviction of the tenant by the landiord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and l-rle a suit for specific performance of the sale agreement r.vhereafter he would be given easy access to tl"re premises in case he prevails ..., Conseqnerrtly, tl're relationship in so far as the juriscliction ol the Rer-rt Controller is concerned stoocl established because per settled I law thc question oi title lo the property Coutd never be dccidecl by the Ilcnt Controller. In the tentative rent order the learnecl Rent Controller has carried oul such sLlmmary exercise and decided the relationship between the parties to exist."

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7.It is quite clear that the Appellate Court has rightly found t}'ral the tenant was indeed the tenant of the Property and relationship of landlord and tenant did exist between the parties as was also eiucidated by various Supreme Court judgments.

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8.Learned counsel for the petitioner I tenant has not been able to point out any legal in{irmity in respect of the appellale judgment and as such this constitution petition is dismissed,

9.Petition stands disposed of in the above terms.

JUD E n)"tlu

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