1. MUNIB AHMED KHAN, J. --- Brief facts of the case' are that respondents Nos. 1, 2 and 3 (hereinafter referred to' as the respondents) filed Rent Case No. 1059/94 against the petitioner for his eviction from Flat No. 8, 4th Floor, Abdul Wahid Manzil, Plot No. 202, Street No. 4, Old Kumbarwar, Chakiwara Road, Lyari, Karachi (hereinafter referred to as the demised premises) on the ground of default in payment of rent from March, 1992 at the rate of Rs. 225/- per month and arrears of rent of Rs.
2. 6,525/- till July, 1994 and also for making addition/alteration in the said flat without consent of the owners/landlords. The petitioner filed written statement denying the relationship of landlord and tenant between the parties and has claimed himself to be bona fide purchaser of the demised premises on the basis of a sale agreement dated 15.5.1994 allegedly executed by Muhammad Ashraf Baloch, attorney of the respondents. The petitioner has also claimed to have filed Civil Suit against the respondents through their attorney from whom petitioner had allegedly purchased the demised premises. The said Rent Application was dismissed. Against the said dismissal, respondents preferred F.R.A. No. 371 of 2001, which was, vide judgment dated 30.8.2003, allowed thereby setting aside the judgment of the Rent Controller and directing the petitioner to vacate the premises and hand over its vacant and peaceful possession to the respondents within sixty days from the date of the judgment.
3. Being aggrieved and dissatisfied with the judgment of the A.D.J., the petitioner has fled the present Constitutional Petition.
4. Matter is coming for Katcha Peshi but since R&P of both the lower Courts is available, therefore, both the learned counsel felt convenient to take this Court through R&P, hence case is taken up for final hearing and both the matters listed at Sr. Nos. 1 and 2 are taken together.
5. Learned counsel for the petitioner has contended that impugned judgment is illegal, defective and passed without application of judicial mind; that A.D.J. Ha misread and misinterpreted the evidence on record; that the facts mentioned by A.D.J. Are absolutely contrary to the facts of the case as the petitioner has denied the relationship of, landlord and tenant and has claimed himself to be the bona fide purchaser of the demised premises 'having purchased the same from attorney of the respondents; and that A.D.J. Has based his judgment on the sole testimony of attorney of the respondents, which is also full of contradiction and suffers from ambiguity; that the respondents failed to prove their case before the Rent Controller who rightly decided the case in favour of the petitioner.
6. On the other hand, learned counsel for the respondents has contended that petitioner is tenant of the respondents and has falsely alleged that he is purchaser of the demised premises did not have the power or authority to sell the demised premises and that he was only authorized to let out the premises on tenancy; and that the judgment of A.D.J. Is legal, proper and in accordance with law and is based on material available on record while the judgment of Rent Controller is not warranted by the facts and material on record.
7. Rent Controller after hearing both the parties framed, the following points for determination:-
(1) Whether there exists relationship of landlord and tenant amongst the applications and opponents?
(2) Whether the opponent has committed default in payment of rent since from March, 1992?
(3) Whether the opponent has impaired the value and utility of premises in question?
(4) What should be order be?
8. On the first issue the Rent Controller has given finding in negative while points Nos. 2 and 3 were observed to be redundant whereas on point No. 4, Rent Controller dismissed Rent Application.
9. The moot point involved in this petition is whether Muhammad- Ashraf Baloch, attorney of the respondents, from whom the petitioner has claimed to have purchased the property vide alleged sale agreement dated 15.5.1994, was authorized to self the demised premises on behalf of the respondents. A careful perusal of the General. Power-ofAttorney executed by the respondents in favour of Muhammad Ashraf Baloch reveals that it did not contain any clause to authorize Muhammad Ashraf Baloch to sell the demised premises. Moreso, Muhammad Ashraf Baloch was not examined in Rent Case and was not called nor an application was made for his examination by the petitioner. It would thus be seen that the sale agreement was also to be examined in a proper 'way but that has not been done as attorney was not been examined. It would be profitable to reproduce relevant portion from the judgment of A.D.J. Appearing on typed page 14 relating to this issue, which is as under:- "From perusal of the agreement of sale in which the respondent/tenant has relied that he has purchased that flat in question for consideration of Rs. 2,00,000/-from the attorney of the appellants/landlord in presence of two witnesses namely Dilbar Khan and Muhammad Siddique. It is admitted that the adoresses of the above witnesses are not mentioned in the said sale agreement, only their names, signatures and National identity card numbers are available in the said agreement of sale. The address and National Identity Card of said -Ashraf Baloch who was the attorney of the appellants/landlord is also not mentioned in the said sale agreement. The respondent/tenant in support of his contention has also not examined the witnesses of the agreement before the learned Rent Controller.
10. Apart from the above, it is also observed at typed page 10 of- the impugned judgment, by the A.D.J.
11. That petitioner had also admitted that he had made additions and alterations in the flat in question with the permission of Ashraf Baloch but in this respect he has not produced any evidence that he had made such additions and alteration by the permission of said Ashraf Baloch.
12. In such a situation, the A.D.J. Has opined that petitioner was tenant and deliberately with mala fide intention was committed default in payment of monthly rent and so also made additions and alterations in thedemised premises without permission of landlord.
13. Here question arises that when the petitioner was claiming the ownership of the demised premises then what was the necessity for him to seek permission for alteration etc. From attorney of the landlord. This shows that the petitioner's stay in the dismissed premises was subject to condition and could only be termed of rent agreement or rent law.
14. Upon the above, I find that the judgment of the A.D.J. Does not warrant interference. Resultantly, the petition is dismissed with cost and the judgment of A.D.J. Is maintained.