2015 C L C 103
Before Farooq Ali Channa, J
Messrs SYMPHONY (PVT.) LTD.----Petitioner
Haji FAZAL KARIM and others----Respondents
Constitutional Petition No.S-108 of 2006, decided on 12th March, 2013.
(a) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Ejectment petition---Scope---Fraud in sale transaction challenging legal status of registered sale deed, could not be resolved in rent proceedings which could only be probed in civil suit.
(b) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Ejectment petition---Relationship of landlord and tenant---Title of ownership was disputed by parties claiming each of them to be owner of demised premises---Rent Controller was to direct the parties to get their title cleared from civil court.
(c) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Ejectment petition---Landlord had acquired right of ownership in the property through sale-deed which was neither cancelled nor was out of field---Landlord could claim to have stepped into the shoes of previous owner---Landlord was entitled to recover rent from the tenant of the building which was subject-matter of the sale.
Qasim and another v. S. Rahim Shah 1990 SCMR 647 ref.
(d) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment oftenant---Concurrent findings---Scope---Concurrent findings of both the courts below did not suffer from any illegality or misreading of evidence---High Court refused to interfereand constitutional petition was dismissed.
Abdul Qadir Khan for Petitioner.
Khawaja Naveed Ahmed for Respondent No.1.
Date of hearing: 7th March, 2013.
FAROOQ ALI CHANNA, J--- The petitioner has filed this Constitutional petition against the concurrent findings of two Courts below vide order dated 24-12-2005 passed by learned 1st Additional District Judge, Karachi East in First Rent Appeal No. 104/2004 maintaining the ejectment order dated 27-3-2004 passed by Vth Rent Controller, Karachi East in Rent Case No.33 of 2003.
2.Briefly the facts of case are that Fazal Karim the respondent No.1 claiming himself to be the owner of demised premises filed ejectment application under section 15 of Sindh Rented Premises Ordinance, 1979 for ejectment of petitioner Messrs Symphony (Pvt.) Limited, the tenant of the office/double Shop No.2 on Plot No.99-C, Central Commercial Area, PECHS, Karachi on the ground of default in payment of rent.
3.The petitioner filed written statement denying the relationship of landlord and tenanton the ground that the demised premises belonging to Messrs Print Off Printers andPublishers (Pvt.) Limited Company were sold to the petitioner by Rab Nawaz without having authority. Messrs Print Off Printers and Publishers (Pvt.) Limited was finally dissolved on 4-12-1982 as such Rab Nawaz had no authority to execute the registered sale-deed in favour of Fazal Karim the respondent No.1.
4.The Rent Controller after considering the evidence led by both the parties held that the relationship of landlord and tenant exist between the parties and allowed the ejectment application on the ground of default in payment of rent. The petitioner assailed the above order of Rent Controller in F.R.A. which was dismissed by learned Ist Additional District Judge, Karachi East as referred hereinabolve.
5.Heard Mr. Abdul Qadir Khan, Advocate for petitioner. He has contended that Messrs Print Off Printers and Publishers (Pvt.) Limited Company was dissolved as such Company's properties on dissolution became BONA VACANTIA being state properties in terms of Article 172 of the Constitution of Pakistan, 1973 on the principle of ESCHAEAT (Ownerless property). In the circumstances no person was competent to sale Company's property without leave of Court in terms of sections 315-316 of Companies Ordinance, 1984. Learned counsel has further contended that Rab Nawaz who allegedly sold the property in favour of respondent No.1 had no power of Attorney nor the resolution of company authorizing him to sell the property as such the sale of property amounts to fraud and liable to be set aside. Learned counsel has further contended that the petitioner has also filed Civil Suits before this honourable Court challenging the legal authenticity of Registered sale-deed and had obtained status-quo order. Learned counsel has further contended that ejectment application being premature was not maintainable. In support of his contention learned counsel has relied upon series of citations.
6.Conversely Mr. Khawaja Naveed Ahmed, learned counsel for respondent No.1 has contended that by virtue of Registered sale-deed the respondent No.1 became the absolute owner of the property and the petitioner has no locus standi to call in question the sale transaction which took place between Rab Nawaz and Fazal Karim the respondent No.1, as such the filing of civil suit was sheer effort to put the respondent No.1 under burden and to maintain the possession over the demised premises as long as possible. Learned counsel further contended that on the basis of registered sale deed the concerned department functioning under the Government of Pakistan, Ministry of Housing and Works vide order dated 24-3-1998, ordered the change of mutation of the property allotted to M/s Print Off Printers and Publishers (Pvt.) Limited Company in favour of Fazal Karim, the respondent No.1. Learned counsel has further contended that in writ jurisdiction this Court cannot re-appraise the concurrent findings of two Courts below, unless there is illegality but no illegality appears in the impugned judgments. Learned counsel in support of this contention has also relied upon series of citations.
7.With profound respect to the citations relied upon by learned counsel for both the parties, I am of the view that the questions raised by learned counsel for the petitioner regarding the fraud in sale transaction challenging the legal status of registered sale-deed, cannot be resolved/decided in the rent proceedings, the said questions can only be probed in the civil suits pending adjudication before this Court.
8.Learned counsel for the petitioner has also contended that if the title of the owner is under cloud and doubt is created, the proper course for the Rent Controller was to direct the landlord to get his title cleared from Civil Court and stay his hands from determining the relationship of landlord and tenant. In my view, the above aspect of case is valid if the title of ownership is disputed by the parties claiming each of them to be the owner of demised premises, in the instant case no body has come forward to claim his title of ownership over the property nor challenged the execution of registered sale deed in favour of the respondent No.1. The status/locus standi of petitioner is yet to be determined that whether he was competent to challenge the sale transaction which took place between some other persons particularly when the petitioner has no claim of ownership over the demised premises.
9.Learned Counsel for the petitioner to a query has admitted that petitioner is depositing rent in MRC continuously in favour of Messrs Print Off Printers andPublishers (Pvt.) Limited Company which is in contravention of plea of petitioner raised orally that after dissolution, the company has ceased to exist, however by depositing rent in favour of company, the petitioner shows existence of company. It is also admitted fact that the petitioner was inducted in the demised premises as tenant by Messrs Print Off Printers and Publishers (Pvt.) Limited Company. Now the only question arises that whether, on the basis of Registered sale deed pending adjudication in civil suit, the respondent can be considered as owner of the property. In this respect I am fortified to the case of Qasim and another v. S. Rahim Shah 1990 SCMR 647. In the above case the honourable Supreme Court was pleased to observe as under:---
"All this evidence, prima facie, supports the plea of the respondent that he had acquired the right of the ownership in the property through sale-deed. Until the sale-deed is cancelled and is out of the field, the respondent can claim to have stepped into the shoes of the previous owner, entitled to recover rent from the tenants of the building which was the subject-matter of the sale. There is another aspect of the case which cannot be ignored. Even if the agreement of sale was executed by the previous owner on a prior date before the registered sale-deed, by virtue of section 50 the registered sale-deed, nonetheless has precedence over the prior unregistered deed of agreement. This position would remain till such time the Civil Court passes a decree against the respondent in any of the suits pending in respect of the property. However, for the purpose of the Rent Controller, the position as it stands today was sufficient to satisfy the requirements of law that the respondent was landlord entitled to recover rent. In this view of the matter we find no reason to interfere with the decision of High Court, which is unexceptionable."
10.The facts and circumstance of instant case are identical to that of case decided in the above referred matter, the registered sale-deed in favour of respondent No.1 has not yet been cancelled by any competent Court and the same is in field entitling the respondent No.1 to claim the title of ownership of the demised premises by stepping into the shoes of previous owner which was sufficient to invoke the jurisdiction of Rent Controller.
11.For the reasons discussed above and the dictum laid down by the honourable Supreme Court referred to hereinabove I have come to the conclusion that the concurrent findings of both the Courts below does not suffer from any illegality or misreading of evidence, it requires no interference of this Court, therefore the Constitutional Petition is dismissed.
The, petitioner is allowed 60 days time from the date of this order to vacate the demised premises and hand over vacant possession to the respondent No.1