1. ' MUNIB AHMAD 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,6525 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 respondent through their attorney from whom petitioner had allegedly purchased the demised premises. The said Rent Application was dismissed. Against the said dismissal, respondents preferred FRA 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.
2. ' Being aggrieved and dissatisfied with the judgment of the Additional District Judge, the petitioner has filed the present constitutional petition.
3. ' Matter is coming for Katcha Peshi but since R and P of both the lower Courts is available, therefore, both the learned counsel felt convenient to take this Court through R and P, hence case is taken up for final hearing and both the matters listed at Sr. Nos. 1 and 2 are taken together.
4. ' I have heard Mr. Shoa-un-Nabi and Mr. Farooq Hashim, learned counsel for the petitioner and respondents respectively and have gone through the material available on record.
5. ' Learned counsel for the petitioner has contended that impugned judgment is illegal, defective and passed without application of judicial mind; that Additional District Judge has misread and misinterpreted the evidence on record; that the facts mentioned by Additional District Judge 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 Additional District Judge 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; that the ejectment case was filed in 1994 whereas, as a counterblast, the suit was filed by the petitioner after institution of the ejectment application; that Muhammad Ashraf Baloch from whom petitioner has claimed to have purchased 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 Additional District Judge 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 applicants 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 the 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 sell the demised premises on behalf of the respondents. A careful perusal of the General Power of Attorney 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. More so, 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 has not been examined. It would be profitable to reproduce relevant portion from the judgment of Additional District Judge 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 the flat in question for consideration of Rs,2,00,000 from the attorney of the appellants/la.Ndlord in presence of two witnesses namely Dilbar Khan and Muhammad Siddique. It is admitted that the addresses 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. ' In my view that the appellant/landlord have produced copy of attorney power in support of their contention that the said Ashraf Baloch was their attorney only to the extent of letting out the flats to the tenants on rent basis and nothing mentioned in the said attorney power that the said Ashraf Baloch has a power to sell out the flat in question, therefore, in my opinion it is upon the respondent/ tenant to examine the said Ashraf Baloch in support of their contention because the respondent/ tenant has admitted that Ashraf Baloch was the attorney of the appellants and the respondents/ tenant has also admitted in his cross examination that the attorney power produced by the appellants/ landlord is not forged one."
11. In such a situation, I am of the view that since Muhammad Ashraf Baloch A was not authorized to sell the property, petitioner is precluded from claiming to be the bona fide purchaser of the demised premises and has to blame himself. Additional District Judge has rightly come to the conclusion that there existed relationship of landlord and tenant between the parties as, according to him, since 1992 till 2000 when the cross examination of the petitioner/tenant was recorded, the property was not in the name of the petitioner/tenant and further that simple agreement of sale is B not proof of the ownership of the petitioner.
12. 'Apart from the above, it is also observed at typed page 10 of the impugned judgment, by the Additional District Judge 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 alterations by the permission of said Ashraf Baloch. In such a situation, the Additional District Judge has opined that petitioner was tenant and deliberately with male fide intention has committed default in payment of monthly rent and so also made additions and alterations in the demised 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 demised premises was subject to condition and could only be term of rent agreement or rent law.
14. ' Upon the above, I find that the judgment of the Additional District Judge does not warrant interference. Resultantly, the petition is dismissed with cost and the judgment of Additional District Judge is maintained.