1. The petitioner has challenged the legality and propriety of the judgment dated 21-8-2002 passed by the learned find Additional District Judge (South) Karachi in F.R.A. No, 1162/2001 (HC FRA 756/00)
2. Whereby she allowed the appeal of the landlord filed against the Order dated 25-4-2000 passed by the learned VIIIth Senior Civil Judge and Rent Controller (South) Karachi dismissing the ejectment application for ejectment of the Petitioner from Flats Nos, 5 and 6 on the first floor of the building known as Rooman Building, Robson Road, Karachi.
3. Respondent No, 1 Ghulam Ghous, on 15-2-2000 filed ejectment Case No, 374 of 2000 against the petitioner for his eviction from Flats Nos,5 and 6 situated in Rooman Building Robson Road, Karachi in the VIIIth Court of Rent Controller (South) Karachi on the ground of default in the payment of rent from January, 1997 The petitioner filed his written statement and pleaded that he is residing at Flats Nos,5 and 6 on the first floor of the building known as Rooman Building which, at relevant time, was jointly owned by Zohra Bi, Zaib-un-Nisa, Amna Khatoon and Fatima Khatoon and all the shops/flats in the building were occupied by the tenants. The petitioner was also tenant of the said owners/landladies in respect of Flats Nos, 5 and 6 and Shops Nos, 12 and 13. The rent of two flats was Rs, 250.00 per month. Sometime in 1996 the said ladies wanted to sell the said building and meetings of the occupants/tenants of the said building took place wherein it was ultimately decided that the said building be purchased for the benefit of the tenants/occupants out of the money collected from them wherefore three persons amongst the occupants/tenants namely Mr. Mehtab son of Iqbal Ahmed, Advocate, Muhammad Raees son of Haji Muhammad Taqui, shop-keeper and Jamil Ahmed son of Noor Muhammad having printing press were authorized by the tenants/occupants to deal with the said owners through their attorney. In pursuance thereof negotiations started and deal was effected for a sum of. Rs, 25,00,000 on Out of the money collected from the occupants/tenants a s m of Rs, 2,50,000.00 towards the part sale consideration was paid to the landladies/owners and it was agreed that on payment of the balance sale consideration a sale agreement will be executed by the owners/landladies for sale of the said building in the name of those three persons and simultaneously a power of attorney shall also be executed and got registered by them in favour of those three persons who shall act as nominee/agents of the occupants/tenants of the building and discharge the trust. A joint current Bank Account No, 4777 was also opened by all the three viz. Agents/Attorneys in the United Bank Limited. Moulvi Musafirkhana Branch Karachi, "wherein out of the three any two jointly could operate the said account. The aim of opening the account was that the amount received from the tenants/occupants of the building will be deposited therein. Upon payment of balance sale consideration the landladies/owners executed a sale agreement and a general power of attorney in favour of the three nominated persons named above.
4. It was further the case of the petitioner that consideration of each tenement (floor-wise) was determined and the full consideration/ price of the shops in possession of the petitioner was Rs, 2,00,000 Rs, 1,00,000.00) for each shop) and Rs, 50,000.00 for two flats (Rs, 25,000.00 for each flat).
5. Towards the purchase of the tenement in possession of the deceased petitioner he had already paid a sum of Rs, 2,00,000.00 to Jameel Ahmed and Rs, 50,000,00 to Raees Ahmad. It was the case of the petitioner that after the execution of the sale agreement and the power of Attorney Mehtab Ahmad and Raees Ahmad committed acts of malfeasance and misfeasance. The occupants/tenants made number of complaints to the third Attorney about misconduct and misbehavior of the other two Attorneys and efforts were made by him to talk to the other two attorneys but they avoided to meet him and under the circumstances the third Attorney filed Suit No, 789 of 1997 in this, Court for declaration, injunction and for rendition of accounts against the two Attorneys and vide Order dated 9-8-1999 this Court directed the parties to maintain status quo and not to create any third party interest.
6. The petitioner further pleaded that he received letter dated 4.9.1998 from the Respondent No, 1 purporting to be a notice under Section 18 of the Sindh Rented Premises Ordinance, 1979 intimating that he had purchased the two flats in possession of the petitioner in the month of April 1997. The petitioner replied the said notice through his Advocate on 30-9-1998 explaining the true facts and disputing the ownership of the Respondent No, 1 in respect of the flats in his occupation and intimating that, without prejudice to his rights in the matter, he would deposit the rent in Court subject to final decision of the Court.
7. The petitioner on 2-10-1998 filed Suit No, 969 of 1998 against the, three attorneys and the Respondent No, 1 for specific performance, injunction and cancellation of sale-deed executed in favour of the Respondent No, 1 in the Court of VIIIth Senior Civil Judge (South) at Karachi. Along with the suit the plaintiff filed an application under Order XXXIX, Rules 1 and 2, C.P.C. which was on contest finally allowed and the Defendant No, 4 therein (Respondent No, 1) was restrained to use the sale deed in respect of the suit flats as the title document and take any action on that count against the plaintiff therein (the petitioner). Pending disposal of the said suit the Respondent No, 1 filed an ejectment Case No, 374 of 2000 wherein the petitioner filed his written statement taking the defence as explained above.
8. The learned Rent Controller settled the following points for determination:--
(1) Whether there is a relationship of landlord and tenant in between the application and the opponent?
(2) Whether the Opponent committed default in payment of rent since January, 1997 onwards?
(3) What should the Order be?
9. In the said ejectment case the Respondent No, 1 examined himself. In rebuttal the petitioner besides himself examined Jameel Ahmed the third Attorney in his defence. The said ejectment case was dismissed on 25-4-2000. The Respondent No, 1 preferred a First Rent Appeal No, 756 of 2000 before this Court on 31-5-2000. Pending hearing of appeal the rent Ordinance was amended and the appeal was transferred to the Court of learned District Judge (South) Karachi where it was renumbered as FRA 1162/01 and transferred to the Court of the learned IInd Additional District Judge, (South) Karachi who vide her impugned judgment dated 21-8-2002 allowed the said appeal and directed the, petitioner to vacate the flats in his possession within sixty days of the Order.
10. The petitioner has challenged the impugned Order through this petition on the grounds that:--
(a) The impugned judgment is not sustainable and is contrary to the applicable law on the subject as the learned Rent Controller had given negative finding on the issue of relationship of landlord and tenant between the parties and held that the ejectment application filed by the Respondent No, 1 was premature on account of pendency of litigation before the Civil Court which was in accordance with the dictum laid down by the superior Courts and therefore no finding was given by him on the point of default whereas the learned First Appellate Court had acted without jurisdiction in upsetting in appeal the finding of facts arrived by the Rent Controller without giving any reason for differing with the learned Rent Controller and straightaway ordered ejectment of the petitioner on the ground of default without giving any finding on the point of default.
(b) There was a stay operating against the Respondent No, 1 for using the sale-deed which was sub judice before the Civil Court and he was not entitled to maintain the ejectment application on the basis of the sale-deed;
(c) The petitioner/tenant had shown a genuine and bona fide doubt over the title of the Respondent No, 1 and had brought on record evidence making the claim of the landlord doubtful and the learned Rent Controller had rightly held that the ejectment application was premature.
11. The contentions raised by Mr. M. Isma il Kassim, counsel for the petitioner have force. A perusal of the Order passed by the learned Controller shows that the same has been passed after taking into consideration the respective contentions of the parties and after analyzing the evidence produced in support thereof and the conclusion reached that the ejectment application was premature is well founded The relevant portion of the order of the learned Rent Controller is reproduced hereunder:- "There are certain facts in this case which are admitted by the applicant in his cross-examination i,e, the sale agreement, power of attornies i,e, Mehtab, Raees and Jameel Ahmad. One of the attorneys Jameel Ahmad also a tenant of in question building has filed the above suit, the whole building admittedly consists number of tenants. Apparently the suit was filed in the year 1997 whereas this rent case filed on 15-2-2000, it means that after few years of the suit this rent case was filed. Applicant also filed a sale-deed dated 10th March, 1997 and registered on 10-41997. I have also gone through the other correspondence of the counsel of the respective parties.
12. Considering these annexures I am of the view that already Civil Suit Bearing No, 789 of 1997 is pending in the High Court of Sindh for further adjudication and as being the Hon'ble superior Court has to decide the fate of the above said suit. Therefore applicant has waited for sometime and filed the rent case against the opponent. The material on record shows that the present rent application is premature and filed before taking the orders from the Hon'ble High Court of Sindh in respect of the title of the building in question."
13. The above discussion shows that the learned Rent Controller after careful analysis of the evidence and material produced before him came to the conclusion that the relationship between the parties cannot be decided due to pendency of the civil suit and the ejectment application filed by the Respondent No, 1 was premature and no finding can be given on the ground of default. Perusal of the impugned judgment of the Appellate Court Karachi indicates that neither any reasons have been given while disturbing the finding of the learned Rent Controller on the issue of relationship nor any evidence has been discussed while deciding the issue of the default and directing ejectment of the petitioner. Furthermore perusal of the impugned judgment reveals that the learned First Appellate Court without applying her mind or appreciating the defence of the petitioner of the evidence produced straightaway allowed the appeal and admittedly did not advert to the reasoning of the learned Rent Controller in impugned judgment. There are plethora of case law on the point that an Appellate Court while disturbing the finding of the trial Court is under legal duty to meet the reasoning of the trial Court in the judgment and to consider the controversy entirely afresh, both as regards facts and law and to substitute its own judgment for that of subordinate Court. Reliance in this behalf can be placed on the case of Madan Gopal v. Maran Bepari PLD 1969 SC 617 at page 620 in which the following principle has been laid down: If the finding of the First Appellate Court cannot be supported' on the evidence on record or it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, 00s otherwise 'found to be arbitrary or capricious it will have to be rejected in second appeal."
14. The above case was followed by the Lahore High Court in the case of Mst. Iqbal Begum and two others v. Muhammad Bashir and others 2003 M LD 1280 Lahore and it was observed as under: "It is also settled principle of law that the First Appellate Court has to reverse the findings of the trial Court after meeting the reasoning of the trial Court, as per principle laid down by the Honourable Supreme Court in Madan Gopal's case PLD 1969 SC 617. The First Appellate Court did not advert to the reasoning of the trial Court impugned judgment. The judgment of the First Appellate Court is in violation of the law laid down by the superior Courts in the aforesaid judgments. This concept 1 of jurisdiction and illegality had been considered by the Honourable Supreme Court in Kanwal Nain's case PLD 1983 SC 53 to cover cases, where decision on facts is based on no evidence, inadmissible evidence or so perverse as to cause grave injustice would result there from."
15. Reliance can also be placed on the case of Ali Raziq v. Sabar Khan 2003 CLC at page 1342 wherein the learned Judge has held: "....It is necessary for the Appellate Court to record the points for determination, so that it can be determined whether the Court has dealt with all the points. The Appellate Court is required to give its decision with regard to each point, which should be self-explanatory, illuminative and in. the nature of a speaking order. Where the provisions of Order XLI, Rule 31, C.P.C. are not complied with the judgment is not in accordance with law. It should be evident from the judgment that the Judge was conscious of the matter involved and that the decision has been pronounced on the basis of the record. Where a judgment does not substantially comply with the requirements of this rule, it is a bad judgment in the eye of law. The perusal of the judgment of the learned Appellate Court shows that the appeal was dealt with in a very cursory manner. Neither issue-wise findings were given by the learned Appellate Court nor points for determination as envisaged under Order XLI.
16. Rule 31, C.P.C. were set out and decision given thereon. The trial Court and the Appellate Court are duty bound to consider and discuss the evidence of both the parties satisfactorily s( that it may be visible that the Courts below have applied their mind and that they have based their findings on proper appraisal of such evidence. The Courts are required under the law to give issue-wise findings in order to ensure that substantial justice has been done and no material prejudice has been caused to the parties....
17. A perusal of the impugned judgment in the light of the principle laid down in the above cases would clearly reveals that the material facts have escaped notice of the learned Appellate Judge and the judgment has been recorded in a- mechanical manner without discussing the material on record in detail.
18. The second contention of Mr. Ismail Kassim, the learned counsel for the petitioner that the learned Appellate Judge has not considered the civil litigation being Suit No, 789 of 1997 pending between the attorneys where in the authority of the two attorneys has been challenged by the third attorney and is pending sub judice and the title to the entire building including the flats in question is in dispute. The factum of pendency of the suit has been admitted by the Respondent No, 1 in his cross-examination as he being an Advocate appeared in that suit for and on behalf of one of the defendants i,e, Defendant No, 2 namely Mehtab Ahmad. This aspect has been considered by the learned Rent Controller and has delivered the finding that Being a Rent Controller he had no jurisdiction to go into the disputed question of title and that the Respondent No, 1 should wait till such time the litigation is decided between the attorneys. The Respondent No, 1 in his ejectment application has claimed ownership to the flats in question through a sale-deed executed in his favour by the two attorneys on 10-4-1997. This very sale-deed is pending sub judice in Civil Suit No, 969 of 1998 filed by the petitioner against the three attorneys and the Respondent No, 1. this fact has been admitted by the Respondent No, 1 in the cross-examination. One of the issues in the said suit is "Whether the Defendants Nos, 1 and 2 sold out Flats 12-G and 13-G in favour of Defendant No, 4 by virtue of registered sale-deed strictly in accordance with the terms of powers of attorney?".
19. Along with the suit the petitioner filed an application under Order XXXIX, Rules 1 and 2, C.P.C. (page 255 of the file) praying the Court, amongst other to restrain the Defendant No, 4 (herein the Respondent No, 1) from using illegal sale-deed executed by the two attorneys in respect of suit flats as the title documents of the suit flats and take any action on that count against the plaintiff (petitioner hereinabove) pending disposal of the suit. The said application on contest was finally allowed vide orders dated 28-11-2000 and dated 7-1-2002 and the Defendant No, 4 therein (Respondent No, 1) was restrained to case the sale-deed in respect of the suit flats as the title document and take any action on that count against the plaintiff therein (the petitioner) till disposal of the suit. (pages 451 and 465 of the file).
20. From the above facts, it is evident that the Respondent No, 1 was not entitled to use the sale-deed as title documents in respect of the suit flats in presence of the interim stay operating against him' and therefore he was not entitled to maintain the very ejectment application. The learned Rent Controller had rightly held that the ejectment application was premature and the Respondent No, 1 should wait for the result of the civil litigation which aspect has not been considered by the learned Appellate Judge while upsetting the findings of the learned Rent Controller and this has rendered the impugned judgment unsustainable. This also covers the last contention of Mr. Kassim, the learned counsel for the petitioner, that the petitioner/tenant had shown a genuine and bona fide doubt over the title of the Respondent No, 1 and had brought on record evidence showing the pendency of civil litigation between the parties thereby making the claim of the landlord doubtful and the learned Rent Controller had rightly held that the ejectment application was premature and this finding has been disturbed by the learned Appellate Court without giving any cogent reasons.
21. Admittedly the civil litigation is pending between the parties where the very sale-deed is pending, sub judice and an issue has been framed by the Civil Judge in that behalf. There is a cloud on the title of the Respondent No, 1/Landlord and unless the same is established before the Civil Court ejectment proceedings cannot be maintained by him and the learned Rent Controller has rightly held so in his well-reasoned Order. Reliance in this behalf is placed on the judgment in the case of Rehmatullah v. Ali Muhammad and another 1983 SCM R 1064 wherein it has been observed that:-- "What is permissible for Court of general jurisdiction in the field of fairplay, justice and equity when there is no statutory bar, is also permissible for the Controller. He. can, in a given case even when the landlord has discharged the initial burden in the title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy in a Civil Court, first and then again approach to the Controller. Even when the tenant has not succeeded before the Controller to create the required "reasonable" doubt but has convinced him that his plea is not frivolous and/or vexatious but due to Constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Controller can leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same."
22. The dictum laid down in the above case apply with full force to the facts of the present case and the Petition merits acceptance.
23. Mr. Ghulam Ghaus, Advocate/Respondent No, 1, appearing in person supported the impugned Judgment and has contended that he had produced registered sale-deed in respect of the tenements in question and the petitioner/tenant was estopped from challenging the same or dispute his title as landlord of the premises. He has further contended that the petitioner in response to the Notice issued to him under Section 18 of the Sindh Rented Premises Ordinance, 1979 deposited the rent with the learned Rent Controller in the name of a fake landlady and after a month realizing the mistake corrected the title of the application by substituting his name without obtaining permission from the learned Rent Controller. Lastly he contended that there may be defects/short comings in the Appellate judgment but this Court has ample powers to correct the same and decide the case on merits. On the point of registered sale-deed he has placed reliance on the judgment in the case of Iqbal v. S. Rahim Shah 1990 SCM R 647. This case is of no assistance to the Respondent No, 1 as in that case the tenant pleaded agreement of sale in his favour and pendency of suit for specific performance as against the registered sale-deed in favour of the landlord. The Hon'ble Supreme Court held that "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 cover the prior unregistered deed of agreement". In the present case the very sale-deed is sub judcie before the Court of competent jurisdiction and a stay is operating against the Respondent No, 1 and facts of the said case are completely different then the present case and hence are distinguishable. The another case relied upon by him is the case of Province of Punjab through Education Secretary v. Mufti Abdul Ghani PLD 1985 SC 1. This case rather supports the contention of the learned counsel for the petitioner that the person claiming to be the landlord of a property has to first satisfy the Rent Controller about his title. This case is of.no help to the Respondent No,
1. The third case relied upon by him is reported in Muhammad Shabbir v. Mst. Hamida Begum 1992 M LD 323. This case is also of no help to the Respondent No, 1 as in this case the tenant pleaded sale agreement in their favour as against the registered sale-deed and the learned Rent Controller as well as this Court held that the sale-deed executed and registered in favour of the landlady clearly establishes her title over the property in question. Till such time as the appellants succeed in having the sale-deed cancelled and in obtaining a decree for specific performance of the agreements in their favour, the respondent shall continue to be the owner of the property in dispute. The position in the above case, as explained earlier, is completely different. The very sale-deed is pending sub judice before the Court of competent jurisdiction and an interim order is operating against the Respondent No, 1 not to use the sale-deed as title document in respect of the disputed tenement. The facts of the case are distinguishable.
24. The upshot of the above discussion is that this is a fit case for exercise of constitutional jurisdiction as the judgment passed by the learned First Appellate Court is not sustainable being opposed to law and settled principles for administration of justice.
25. Accordingly this constitutional petition is allowed and the judgment dated 21-8-2002 passed by the learned IInd Addl, District Judge (South) Karachi in FRA No, 1162/01 (HC FRA 756/00) is set aside and the Order dated 25-4-2000 passed by the learned VIIIth Senior Civil Judge and Rent Controller (South) at Karachi in Rent Case No, 374 of 2000 dismissing the ejectment application of the Respondent No, 1/Landlord for ejectment of the petitioner is restored.