1. This order will dispose of above-noted Constitution Petition filed by Ms. Shaista Shams daughter of Shamsuddin against the judgment, dated 7-9-2007 passed by learned 1st Additional District and Sessions Judge, Karachi Central, in F.R.A. No, 240 of 2006, directing the petitioner to vacate the premises in her possession and hand over the same to the Respondent No,
1. Through the afore- noted order passed in appeal, the learned Judge has upheld the. judgment dated 29-9-2006, passed by learned IInd Senior Civil Judge and Rent Controller, Karachi-Central in Rent Case No, 22 of 2003.
2. Brief facts of the case are that Respondent No, 1 is the owner and landlady of building known as `Seema Estate', constructed on Plot No, 1-K-7, situated at Nazimabad No, 1, Karachi. That attorney of the respondent had entered into an agreement of the sale dated 26-5-1980 with the petitioner for Flat No, 24, First Floor of the aforesaid building (hereinafter referred to as the flat in question) for total sale consideration of Rs, 1,60,000. That under the aforesaid agreement the petitioner had paid Rs,60,000 as earnest money at the time of execution of agreement and further amount of Rs,40,000 in instalments by cheques and cash. That the balance amount of Rs,60,000 was to be paid on execution of sale-deed. That the sale-deed was to be preferred by vendee at her own cost, as stain!) duty for execution of the sale-deed was to be borne by the vendee. That the petitioner was/is ready and anxious to perform her obligations for getting a sale-deed executed and registered by virtue of the terms and conditions under the aforesaid sale agreement and had been repeatedly contacting the Respondent No, 1 and her attorney that the Respondent No, I and her attorney avoided to do the needful on one pretext or the other, with mala fide intention to defeat the right, of the petitioner. That in this regard, some correspondence / exchange of notices also took place but the Respondent No, 1 did not execute the registered sale-deed in the name of the petitioner. That subsequently Respondent No, 1 through her husband and attorney, Syed Razi Ahmed filed Ejection Application No, 22 of 2003' against the petitioner in the Court of IInd Senior Civil Judge and Rent Controller, Karachi-Central. That the said case was decided in favour of Respondent No, 1 without considering the fact that she through her attorney had executed sale agreement in favour of the petitioner. That the Rent Controller during trial framed following issues in the mater:--
(1) Whether there exists no relationship of landlady and tenant in between the parties and the rent ejectment application is not maintainable?
(2) Whether opponent has committed willful default in payment of rent?
(3) What should the order be?
3. That the learned Rent Controller, Karachi-Central decided the rent application against the petitioner and directed her to vacate the premises in question and hand over its possession to the Respondent No, 1 vide his order dated 29-9-2006.
4. That feeling aggrieved with the order of learned Rent Controller, petitioner preferred F.R.A. No, 240 of 2006, which was dismissed by the learned 1st Additional District & Sessions Judge, Karachi-Central under her order dated 7-9-2007.
5. Through the instant Constitution Petition, the petitioner has challenged the findings of the learned appellate Court as well as learned Rent Controller, Karachi Central and has prayed as under:--
(a) To declare that the impugned orders dated 29-9-2006 and 79-2007 passed by the learned Respondents Nos,2 and 3 respectively are not sustainable both on facts as well as in law and are liable to be set aside.
(b) That the aforesaid impugned orders be set aside allowing cost to the petitioner.
(c) Granting any further and better relief to the petitioner to which this Honourable Court deems fit and proper in the circumstances of the case.
6. Heard Advocate for petitioner and Advocate for Respondent No, 1, who has appeared in pursuance of the pre-admission notice as ordered by this Court on 9-10-2007, also perused case papers.
7. Learned counsel for the petitioner submitted that after execution of sale agreement the petitioner remained in occupation of the disputed premised as owner. She has paid about Rs, 1,00,000 towards the sale consideration. That thus after the payment of the said amount, the relationship of landlord and tenant did not exist between the parties. That the learned Rent Controller as well as appellate Court while deciding the matter have not taken this fact into considerations, thus they committed gross illegality in deciding the case. He further submitted that after filing of affidavit-in- evidence, the husband/ attorney of the Respondent No, 1 did not appear in Court for his cross- examination, therefore, the learned Rent Controller closed side of the Respondent No, 1 under his order dated 2-8-2006. That as the attorney of the Respondent No, 1 has not appeared in Court for cross-examination, therefore, his affidavit has got no evidentiary value. That this fact has also not been taken into consideration by the learned Rent Controller as well as by the learned 1st Additional District and Sessions Judge, Karachi Central. Thus they have committed serious error of non-reading and mis-reading of the evidence cm the 'word. That the learned lower Courts have also failed to consider the other material available on the record while passing the impugned orders. He therefore, requested for admission of this Constitution petition for regular hearing. In support of his contentions, he relied upon the cases of Anis Ahmed v. Government of Pakistan and 3 others PLD Karachi 709, Haji Mohibullah & Co. and others v. Khawajabahuddin 1990 SCMR 1070, The Deputy Registrar, Cooperative Societies v. Mst. Zulekha and 4 others 1990 GLC 1003, Barkat Ali v.
8. Muhammad Ehsan & another 2000 SCMR 556, Amina Nuzhat Babar v. Khan Sher 2002 CLC 1 and Mushtaq Ahmad v. Mst. Ismat Faiz Khan PLD 2005 Karachi 521.
9. On the other hand, learned counsel for Respondent No, 1 has disputed the contentions of learned counsel for the petitioner and submitted that the alleged sale agreement executed in between the parties has got no value in the eye of law, as in pursuance of that sale agreement, the petitioner failed to perform her part of agreement, therefore, the same stands nullified in the eye of law and no force can be attached to the same. He further contended that in case the petitioner was interested to get the sale agreement concluded then even in case of failure of the Respondent No, 1 her attorney to execute registered sale-deed in her favour, she was required to have filed a suit for specific performance against the Respondent No, 1 but till date she has not filed any suit for specific predominance of the contrant. This shows that even the petitioner herself was not interested in fulfilment of the sale agreement.
10. He further contended that the petitioner in her cross-examination has admitted that "it is correct to suggest that applicant has succeeded as new owner and I, remained her tenant when applicant. purchased the building in question where the flat in question is situated. It is correct that from May, 1982 I had not paid rent to the applicant, voluntarily says that since I had purchased the flat in question from applicant, as such, there was no question of payment of rent to her.
11. Thus as per admission of the petitioner, she remained tenant of the Respondent No, 1 and since May, 1982 she has not paid any rent to the Respondent No, 1, thus as per her own admission, she has-committed default in payment of rent. She also admitted that lawyer of the Respondent No, 1/applicant had sent a legal notice to her for payment of remaining sale consideration. This shows that Respondent No, 1 was always willing to perform her part of contract, and it is the petitioner who failed to perform her part of the contract. She also admitted that she cannot say as to whether any legal proceedings were initiated against the applicant for non-performance of sale contract. She also admitted that she is not in possession of any registered instrument of the ownership of the flat in question. The learned counsel while continuing his arguments, submitted that when the petitioner as per her own admission has remained tenant of the Respondent No,
1. She has not paid any rent since 1982 and even at the time of her cross-examination. She was not in possession of any title document with regard to the flat in question, then there was no choice before the learned Rent Controller, but to order for ejectment of the petitioner from the premises in question. That the order of the learned Rent Controller as well as the order of the appellate Court are quite appropriate, correct and legal and no exception can be taken to the same. The learned counsel further submitted that the orders passed by learned Rent Controller as well as learned 1st.
12. Additional District & Sessions Judge, Karachi Central are based on the material available on the record, therefore, the same does not require any interference by this Court, while exercising its constitutional jurisdiction. That the scope of the Constitutional jurisdiction with regard to rent cases is very limited, and this Court has only to see that the order passed is not without jurisdiction and further the order passed is not the result of non-reading or misreading of the material available on the record. That the orders passed in this case are appropriate and do not require any interference.
13. He, therefore requested for dismissal of the instant Constitution petition in limine. In support of his contentions, he relied upon the case of lqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101.
14. I have considered the contentions raised by the learned counsel for the parties and have also perused the material available on the record.
15. It is admitted position that after execution of the sale agreement, no registered sale-deed was executed in favour of petitioner by the Respondent No,
1. Thus the sale agreement executed in between the parties has no legal value without registration of the documents on the basis of sale agreement. Furthermore, as per admission of the petitioner, she remained tenant of the Respondent-No, 1 and has not paid any rent since 1982. In the decided cases, referred to above, it is clearly laid down that unless and until registered sale-deed is executed in between the parties, the relationship of tenant and landlord exists in between the parties. The tenant cannot get benefit of sale agreement and avoid payment of rent. The orders passed by learned Rent Controller, Karachi Central as well as by the learned 1st. Additional District & Sessions Judge, Karachi Central are in accordance with the law and based on the material available on the record, hence both orders do not require any interference by this Court. Finding no merits in this Constitution Petition. I hereby dismiss the same in limine.