' ARSHAD NOOR KHAN, J.- By this constitutional petition, the petitioner has challenged the vires of the order, dated 5-4-2008 passed by the learned II-Additional District Judge, Malir Karachi, in F.R.A.
No,4 of 2007 Amir Ali Khan (deceased) through his L.Rs, v. Masood-ur-Rehman Farooqui, whereby the appeal filed by the appellant was dismissed and the judgment passed by the 1st Senior Civil Judge/Rent Controller, Malir, Karachi, dated 30-3-2007 passed in Rent Case No,12 of 2003 Masoodur Rehman Farooqui v. Amir Ali Khan through his L.Rs,, whereby the ejectment of the petitioner was ordered with the direction to hand over the vacant possession of the demised premises to the landlord within 60 days.
2. Facts leading to the present petition in brief are that the respondent No,1 filed Rent Application under section 15 of the Sindh Rented Premises Ordinance, 1979, (hereinafter shall be referred to as the Ordinance, 1979), stating therein that he is owner of Flat No,A-21/3, Farhad Square, Gulzar-e- Hijri, Karachi, which was rented out to the predecessor-in-interest of the petitioner namely Amir Mi Khan on 2nd June, 2006 at a monthly rent of Rs,2,200 excluding electricity and maintenance charges and such agreement was reduced in writing. It is further stated in the rent application that the predecessor-in-interest of the petitioner paid rent upto September, 2002 and thereafter stopped the payment of monthly rent in spite of several demands but he showed his paucity and financial problems towards payment of monthly rent and always requested time for payment of the same, but did not pay the monthly rent till filing of the rent application in the month of January, 2003. It is further stated in the rent application that the predecessor-ininterest of the petitioner filed Suit No,144 of 2002 before the Senior Civil Judge, Malir Karachi for specific performance of the sale agreement by preparing forged and fabricated sale agreement of the said flat. The respondent No,1, therefore, filed application for eviction of the petitioner from the demised premises.
3. Said Amir Ali Khan was served with the notice of the rent application who appeared before the learned Rent Controller and filed his written statement, inter alia, denying therein relationship of landlord and tenant in between the parties. He further stated that the rent application was not maintainable in view of the fact that Suit No,144 of 2002 for specific performance of the contract is pending, as such the respondent No,1 had no cause of action to file rent application. He further admitted para.3 of the rent application in his written statement and stated that he paid rent upto November, 2002 and has further admitted that he had purchased the said premises from the landlord through sale agreement dated 4-6-2002 for a consideration of Rs,4,25,000 and he paid Rs,3,50,000 to him being part payment of the performance of the contract dated 4-6-2002 and it was agreed in between the parties that the landlord will clear loan of House Building Finance Corporation amounting to Rs,1,25,000 within six months from the date of sale agreement and that he will pay rent to the landlord till September, 2002.
4. After filing of written statement, the respondent No,1 filed application under section 16(1) of the Ordinance, 1979 on 10-2-2004 whereupon the learned Rent Controller passed the tentative rent order thereby directing the predecessor-in-interest of the petitioner to deposit arrears of monthly rent as well as future monthly rent in Court. The tentative rent order was not complied with by the predecessor-in-interest of the petitioner, therefore, the respondent No,1 filed application under section 16(2) of the Ordinance, 1979, which after hearing of the learned counsel for the parties was allowed vide order of the learned Rent Controller dated 14-2-2005 and the petitioner filed appeal against the said order of their eviction. Said Amir Ali Khan preferred F.R.A. No,2 of 2005, which was entrusted to learned 1st Additional District Judge, Malir Karachi who after hearing of the learned counsel for the parties, allowed the same and remanded the matter to the Rent Controller for fresh adjudication on merit after recording evidence of the parties vide order, dated 26-10-2005.
5. On remand of the matter, the respondent No,1 filed his affidavit-in-evidence as well as affidavit of his witnesses namely Adil Khan son of Abrar Ali, Salim Ahmed son of Muhammad Ahmed as well as affidavit in evidence of S. Habib Ahmed son of Syed Shamsuddin Qadri, who were cross- examined by the learned counsel for the tenant at great length and the learned counsel for the landlord closed their side. The predecessor-in-interest of the petitioner namely Amir Ali Khan filed his affidavit in evidence as well as affidavit of his witnesses namely Muhammad Shahid and Muhammad Salim, who were also cross-examined by the learned counsel for the landlord. After recording the evidence of the parties in pro and contra to their respective claims, the learned Rent Controller after hearing of learned counsel for the parties allowed the rent application by holding that their exist relationship of landlord and tenant in between the parties and the tenant has committed wilful default in payment of rent. At the time when the judgment was recorded by the learned Rent Controller, the following points were framed by the learned Rent Controller:--
(1) Whether the relationship of landlord and tenant is existed between the applicant and opponent?
(2) Whether the opponent has committed wilful default in the payment of monthly rent?
(3) What should the order be?
6. Against the order passed by the learned Rent Controller thereby eviction of the predecessor-in- interest of the petitioner was allowed, the present petitioner preferred F.R.A. No,4 of 2007, which was entrusted to the learned II-Additional District Judge, Malir Karachi, who vide order dated 5-4-2008 dismissed the appeal, hence the present petition.
7. I have heard Mr. Naseer Ahmed, Advocate for the petitioner. He vehemently contended that there exists no relationship of landlord and tenant in between the parties and Civil Suit No,144 of 2002 is pending adjudication in the Court of learned Senior Civil Judge for specific performance of contract, and unless the title of the respondent is cleared, the relationship in between the parties could not be decided legally. He has further contended that the evidence led by the petitioner has not been considered by the learned courts below in its true perspective, as such by non-appraisal of evidence properly, the learned courts below have committed grave error in granting ejectment of the petitioner, as such judgments passed by both the learned lower Courts suffer from legal infirmity and are liable to be set aside.
8. I have considered the arguments advanced on behalf of the petitioner and have gone through entire evidence available on record with the assistance of learned counsel for the petitioner.
9. The-main emphasis of the learned counsel for the petitioner, is that, there exists no relationship of landlord and tenant in between the parties. The respondent No,1 in his rent application has stated that the property in dispute was rented out to the predecessor-in-interest of the petitioner vide tenancy agreement, .Dated 2nd June, 2002 at a monthly rent of Rs,2,200. The said fact has been admitted by the petitioner in the written statement filed before the learned Rent Controller. It is, therefore, evident that initially the property in question was rented out by the respondent No,1 to Amir Ali Khan and the said tenant subsequently purchased the said property from the respondent No,1 vide agreement of sale dated 4th June, 2002. The respondent No,1 in his evidence before the learned Rent Controller has specifically denied the execution of sale agreement in between him and the predecessor-in-interest of the petitioner namely Amir Ali Khan. The witnesses of the respondent No,1 namely Adil Khan son of Abrar Ali Khan, Saleem Ahmed son of Muhammad Ahmed and S. Habib Ahmed son of Shamsuddin have categorically stated that the respondent No,1 had rented out the demised premises to Amir All Khan on monthly rent of Rs,2,200 and that respondent No,1 had not executed any sale agreement with him and the said agreement is forged one. The respondent No,1 and his witnesses have been cross-examined at great length by the learned counsel for the petitioner. The learned counsel for the petitioner specifically put questions to the respondent No,1 in his cross-examination about his signature on the sale agreement (Annexure "B" to the present petition) to which he specifically denied. The denial of the respondent No,1 coupled with the assertion of the witnesses of the respondent No,1 shows that no such agreement was executed, nor it bears signature of the respondent No,l. The sale agreement therefore, seems to be a fake document on this score alone. I have compared the signatures of the respondent No,1 allegedly signed by him on agreement of sale (Annexure "B" to the present petition) with the admitted signature of the respondent No,1 on tenancy agreement, dated 2-6-2002 and a minute comparison of the admitted signature of the respondent No,1 with the signature on agreement of sale, it reveals that both the signatures are not resembling with each other and are quite different in their' nature, which cast a reasonable cloud on the execution of sale agreement (Annexure "B" to the present petition). The assertion of the petitioner and their predecessor-in-interest is that they have paid Rs,3,50,000 to the respondent No,1 towards sale consideration of the property in dispute to the respondent No,1 and had obtained such receipts from him. The photocopy of said receipts has also been filed by the petitioner along with present petition vide Annexures "C" to Annexure "C/5". I have also gone through the said receipts minutely and it appears that receipt Annexure "C" bears signature on revenue stamp and the signature of the respondent No,1 on this receipt Annexure "C", seems to be quite different from the admitted signatures of the respondent No,1 on tenancy agreement (Annexure "B/1" to the present petition). Receipt Annexure "C/1" bears signature of the respondent No,1 in English which is dated 9-8-2002 and receipts Annexures "C/2" and "C/3" also bears signatures of the respondent No,1 in English, whereas in his cross-examination to the learned counsel for the petitioner before the learned trial Court, he has admitted that he can only sign in Urdu therefore, his signatures on these documents in English recites some other story. Even the contents of receipts Annexures "C/2" and "C/3" shows that a sum of Rs,50,000 was paid by Amir Ali Khan to the respondent No,1 as second and third instalments respectively towards total sale price of Rs,2,200, which is also well-worded in English as "Rs,two thousand two hundred" only, which amount actually is the amount of monthly rent. All said receipts annexures "C/1", "C/2" and "C/3" bears the date below the alleged signature of the respondent No,1 on 9-8-2002 and it is not clarified what was the necessity for the petitioner to obtain three receipts on one and same day if they had paid said amount to the respondent No,1 at the same time. Receipt Annexures "C/4" and "C/5" to the present petition also bears signature of the respondent No,1 which is also not in consonance with the admitted signatures of the respondent No,1. The said documents as discussed above, heavily relied upon by the learned counsel for the petitioner during. The course of his arguments, failed to show that the property has been disposed of by the respondent No,1 to the petitioner and there exists no such relationship of landlord and tenant in between them but on minute examination of these documents as discussed above, it transpired that sale agreement Annexure "B" and its receipts appears to be fake, fabricated and fallacious documents, which have been prepared by the petitioner's predecessor-in-interest for certain wrongful and extraneous consideration after two days from the date of receipt of the property on rent by the predecessor- in-interest of the petitioner from the respondent No,
1. It is also an admitted position that property was rented out to Amir Ali Khan on 2-6-2002 and alleged sale agreement was executed on 4-6- 2002 and what were those problems and difficulties for respondent No,1 to dispose of his property just after 2 days of its renting out. In such state of affairs, it appears that the evidence led by the petitioner was quite shaky, unbelievable and not inspiring confidence so as to record the finding against the respondent No,
1. The learned Rent Controller while dealing with the said aspect of the matter regarding existence of relationship of landlord and tenant in between the parties has observed as under:-- "Though, opponent has asserted that the applicant had sold out the case property to him through, the sale agreement, dated 4-6-2002, but the rent agreement, admittedly executed just three days before the sale agreement had not shown any intention of the applicant for sale of his flat. Besides the said sale agreement, stated to be executed between the parties, opponent has no other title document regarding the case property. Even the sale agreement has not been registered as required under the law. It is worth-noting that the amount stated to be paid by the opponent to the applicant had not been paid through any bank draft or cheque. The receipts of payment filed by the opponent have also not bear the signature of any witness."
10. The aforesaid finding of the learned Rent Controller seems to be quite reasonable, confidence inspiring and in consonance with the evidence available on record and the learned Appellate Court rightly maintained the said finding of the learned Rent Controller.
11. After appraisal of the oral as well as documentary evidence available on record, it appears that evidence led by the predecessor-in-interest of the petitioner seems to be tainted with mala fide and for certain extraneous consideration as it is settled principle of law that when two stories are put before the Court in juxtaposition with each other and the Court on appraisal of the evidence accepts one story the other story automatically appears to be fake and fallacious. The evidence led by the petitioner's predecessor-in-interest itself shows that the said evidence has been prepared and created by him with mala fide intention to deprive of the respondent No,1 from his legitimate right over the property in question.
12. The pendency of the suit for specific performance of the contract cannot come in the way of the respondent No,1 nor the said pendency of his suit for specific performance of the contract put any restriction on the powers of the Rent Controller not to adjudicate upon lis pending before him only on the said score that the suit is pending adjudication. In case, if finally the petitioners are succeeded in proving their pleas regarding execution of sale agreement by the respondent No,1 in favour of Amir Ali Khan, naturally they will get fruit of the said decree but for the time being the respondent No,1 could not be deprived of from his legitimate right to recover rent as well as possession of property from the petitioner.
13. Since it has been established on the basis of evidence available on record that there exists relationship of landlord and tenant in between the parties, now the points for determination remain as to whether the petitioner or their predecessor-in-interest committed any default in payment of monthly rent to the respondent No,
1. It is admitted by the deceased Amir Ali Khan in his written statement that he has not paid rent to the respondent No,1 since from November, 2002 though the respondent No,1 claimed the default in payment of rent since from September, 2002 but from the admission of the deceased Amir Ali Khan in his written statement that he paid rent upto November, 2002 shows that thereafter he has completely failed to pay any rent to the respondent No,1 and it is an admitted position that till today the petitioner or their predecessor-in-interest did not pay any rent to the respondent No,1, as such a wilful default has been committed by the petitioners in payment of rent to the respondent No,1 at the rate of Rs,2,200 per month since September, 2002 till date. As such finding of the learned Rent Controller on this aspect of the matter are neither arbitrary nor capricious nor liable to be reversed.
14. After appraisal of the whole evidence available on record, I am of the considered opinion that the respondent No,1 has not executed any sale agreement with the predecessor-in-interest of the petitioner and the deceased Amir Ali Khan wilfully committed default in payment of rent since September, 2002 till the decision of the rent case before the Rent Controller, as such the courts below rightly ordered the eviction of the petitioner. In view of the aforesaid discussion, I find that both the learned courts below have not committed illegality or irregularity in appraisal of the evidence available on record while passing the judgment for eviction of the petitioners from the property in question and I do not find any reason to interfere in the finding record by the both the learned lower courts. The petition was dismissed in limine in the morning for the reasons to be recorded later on. The short order is reproduced hereinbelow for sake of convenience:-- "For reasons to be recorded later on, the petition is dismissed in limine along with listed applications. The petitioners are allowed one month time to hand over the vacant and peaceful possession of the property in dispute to the respondent No,1, provided they continue to deposit rent in the Court of Rent Controller."
15. These are the reasons for the same.