nill (Appellant) VS nill (Respondent)

ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF

SINDH AT KARACHI

HCA No. 01 of 2009

Present:

Mr. Justice Khilji Arif Hussain

Mr.

Justice Arshad Noor Khan

For hearing of CMA No.181/2009(u/s 151 CPC)

(Notice issued to Respondents No.1 & 2

as well as their advocates by Bailiff.)

Date of hearing : 16/02/2009

Mr. Balal A. Khawaja, advocate for the appellant.

Mr. Qazi Faez Essa, advocate for the respondents.

Khilji Arif Hussain, J:- Brief facts to decide appeal are that appellant acquired tenancy right in respect of Shop No.6, Electronics Market No.1, Ground Floor, Al-Haroon Building, Saddar, Karachi. M/s. Republic Motors (Pvt) Ltd., through intervention of the privatization Commission sold out the entire Al-Haroon Building by a registered conveyance deed dated 9/9/2002 to respondent. The appellant shop No.6 is also situated in the said building. The appellant started paying rent to respondent No.2 after he was informed that respondent No.2 has purchased the building namely Al-Haroon Building where shop No.6 under tenancy of the appellant is situated.

Respondent No.2 filed Rent Case No.694/2004 against the appellant under Section 15 of the Sindh Rented Premises Ordinance 1979 that the shop in question is required for the personal use of the respondent No.2 and further appellant has failed to pay the rent since March 2004 until filing of the rent application. Appellant filed written statement and admitted that the respondent No.2 is the landlord/owner of the shop in question and after recording evidence ejectment order was Passed by the learned Rent Controller on the ground that the appellant has committed default in payment of rent as well as respondent No2 required the premises for his personal use. The appellant preferred appeal being first appeal No.303/2006 against order of ejectment, which was dismissed on 27/01/2007. The order passed by the learned Rent Controller as well as first appellant Court was called in question in CP No.S-119/2007 in this Court, which too was dismissed on After the ejectment order passed by the learned Rent Controller on the ground of default and personal requirement upheld by the appellant Court, and this Court the appellant then filed Suit to declare that the orders passed by the Rent Controller, Appellant Court as well as order passed by the learned Single Judge of this Court were procured fraudently and on misrepresentation. The appellant alleged that Property M/s. Al-Haroon Building was purchased by respondent No.1 in his personal capacity and registered conveyance deed was executed in his favour. Rent case was filed on false frivolous ground by misrepresenting that respondent No.2 is the owner and order of ejectment was procured fraudulently. After hearing the learned advocates for the parties, plaint was rejected which order has been impugned by this Appeal.

Heard Mr.

Balal A. Khawaja, advocate for the appellant and Mr. Qazi Faez Essa, advocate for the respondents.

Learned advocate for the appellant vehemently argued that respondent No.1, who is chief executive of respondent No.2 is in fact the owner of the building where the shop in question is situated was purchased by him by registered conveyance deed dated 9/9/02, the conveyance deed does not bear the seal of respondent No.2 Company, nor Board mentioned any resolution passed by the Board of Directors to execute the conveyance deed. On the basis of these documents learned advocate for the appellant argued that the respondent No.1 is the real owner of the property in question and all the orders were obtained by misrepresentation of fact and liable to be set aside. It was contended by the learned counsel that the privatization commission informed the appellant that the building has been sold out to respondent No.2 and appellant bonafidely started paying rent to respondent No.2 as that the said respondent is the owner of the premises in question. The respondent No.2 filed several rent cases against various tenants in the building which are pending before different courts. It was contend by the learned advocate for the appellant that from various documents including Annual Report of 2006 of respondent No.2 produced by the witness of respondent No.2 in evidence before the Court some in February 2008 appellant acquired the knowledge about the status of the respondent Nos.1 and 2 and immediately filed suit for declaration to set aside the order passed by the learned Rent Controller as well as Appellate Court and by this Court as the same was obtained by misrepresentation. It was contended by the learned counsel for the appellant that respondent No.2 is not covered by the definition of the ‘landlord’ and proceedings before the Rent Controller, Appellate Court and before this Court was corum non judice. It was argued that because of the lack of knowledge and true facts about the status of the property and its ownership the appellant has not raised those questions before the Rent Controller as well as before the appellate Court. Learned advocate in support of his contention that respondent No.2 is not the owner of the building where shop in question is situated heavily relied upon Annual report of 2006 where auditors recorded that conveyance deed of the property has been made in the name of chief executive which was required to be made in the name of the Company therefore title of the property is not appearing in the name of the Company which needs to be duly rectified. Learned advocate in support of his contention relied upon the case of Umar Hayat Khan vs. Inayatullah Butt 1994 SCMR 572.

Mr. Qazi Faez Isa learned advocate for the respondents in reply argued that the property in question was duly recorded in the name of respondent No.2 record of different government agencies/departments and in this regard he relied upon Extract of the Property as well as PT-1 form issued by the Office of the Excise & Taxation Department. It was argued by the learned advocate for the respondents that the ownership as well as relationship of landlord and tenant between the appellant and respondents was not denied at any stage of the proceedings right from the Court of Rent Controller up to the level of this Court and appellant himself admitted in the memo of petition filed before this Court that the property in question was purchased by the respondent No.2 in the year 2002 and now appellant cannot take new defence just to delay execution of the order of ejectment order passed by the learned Rent Controller maintained up to the level of this Court. Learned advocate also relied upon counter affidavit filed by the respondent No.1 in which said respondent categorically stated that the property in question has been purchased by respondent No.2 through respondent No.1 after completing all the requisite formalities. In support of his contention learned counsel for the respondents relied upon the cases of Barkat Masih vs. Manzoor Ahmed (deceased) through LRs ,2006 SCMR 1068, Mir Salah-ud-Din vs. Qazi Zaheer-ud-Din, PLD 1988 SC 221, Dr. Burjor N. Anklesaria vs. Zobia and another,1982 SCMR 98, Siraj vs.Lal Bux and 3 others, 1989

CLC 736.

We have taken in consideration respective arguments advanced by the learned advocates for the parties and perused the record. So far as the contention of the learned advocate for the respondent that the appellant has not taken plea about the ownership of the building in question before the Rent Controller, Appellate Court as well as before this Court in Constitution Petition and now cannot take this objection, since it was alleged by the appellant that the status of ownership of the property came to knowledge of the appellant from the documents produced by the Respondent No.2’s witness during rent proceedings in another matter sometime in February 2008 merely because such plea has not been taken before the Rent Controller, appellate Court etc., not bar the appellant to agitate the same now.

As regard the contention of appellant about ownership of property from the conveyance deed on record, it is difficult to say whether respondent No.1 has purchased the property in his personal capacity or purchased the same on behalf of respondent No.2. Vendee name has been shown as Mian Pervez Akhtar s/o Mian Mohammad Rafiq Anwar Chief Executive of New Electronics Industries (Pvt) Ltd, but what is important here is the intention of the parties. From the Annual Account Report of 2006 on the which Mr. Balal A. Khawaja learned advocate for the appellant heavily relied upon, the auditor’s report recorded that the property in question was acquired in the year 2003 by Respondent No.2 Company and while recording that the property was acquired by the respondent No.2 Company auditor directed for rectification of the conveyance deed when auditor recorded that building was acquired by respondent No.2, it means that consideration of the property was paid from the account of respondent No.2. The building in question was shown one of the fixed assets of the Company in the Annual Accounting Report. The respondent No.2 has been shown owner of the building/property in question in the official record of the Excise and Taxation Department which entry was recorded immediately after registration of the conveyance deed. The name of the respondent No.2 as ownership was duly recorded in the extract of the property registered of Karachi district on 05.10.2002 i.e. just after conveyance deed was registered. It was recorded in extract of property that the property has been purchased by respondent No.2. Respondent No.1 has also filed his affidavit in which he categorically stated that the respondent No.2 is the owner of the shop in question and building has been purchased by the respondent No.2 through him.

In the case of Mst. Maryam Bibi and others vs. Muhammad Ali, 2007 SCMR 281, Hon’ble Supreme Court held that:

“ It is also a settled law that the Courts of law are required to examine the intention and not merely the form of any order or direction contained therein dependent upon the facts, situation and context of each case while considering a document or instrument.”

From the documents available on record merely because there is some discrepancies in the sale deed the same cannot be made basis for setting aside the order passed by the competent Courts after hearing the parties.

Section 2(f) of Sindh Rented Premises Ordinance 1979 define “landlord” means the owner of the premises and include a person who is for the time being authorized or entitle to receive rent in respect of premises.

The order of ejectment was passed not only on the ground of personal requirement but also on the ground of default committed by the appellant which finding was maintained on both ground upto the level of this Court. Even if it is conceded for the sake of arguments that the respondent No.2 was not owner of the premises in question ejectment proceedings on the ground of default was maintainable by the respondent No.2 as admittedly respondent No.2 was receiving rent of the premises in question as landlord of the premises in question. If any case is required one can see of Ziledar and 3 others vs Commissioner, Sukkur Division, Sukkur & 9 others, 1994 CLC 932 Dr. Burjor N. Anklesariai vs. Mrs. Zenobiai and another,1982

SCMR 98.

Mr. Qazi Faez Essa learned advocate for the respondents relied upon the case of Bakhat Masih vs. Manzoor Ahmed, 2006 SCMR 1068, where the suit was filed for the purpose of determination of the right of the parties. It was contended till the decision of the suit ejectment of the petitioner cannot take place, the Hon’ble Supreme Court held that this argument is not available in view of the law laid-down, in the case of Rehmatullha vs. Ali Muhmmad,1983 SCMR 1062, where it was held that it is a settled principle of law, if tenant denied the property right of landord then it is bound to first of all deliver possession of the premises in question then to contest property right ultimately succeed in getting relief in the Court in his favour enforce. Principle laid-down in case of Inayat Ullah Butt vs Umer Hayat, 1994 SCMR 572, is not attracted to the facts of this case, as the Hon’ble Supreme Court in the said matter held that while relying upon Rehamtullah’s case (supra) held that: the Rent Controller cannot decide the question of relationship of landlord and tenant against tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be to decide the issue against landlord and advised him to first get his title established before seeking ejectment.

For the foregoing reasons, the appeal has no merit and accordingly dismissed in limine.

Judge

Judge