1. ' KHAWAJA NAVEED AHMED, J.---This Constitutional Petition was filed by Muhammad Iqbal Hyder and Mrs.Masooma Iqbal against the order passed by Vth Rent Controller and Senior Civil Judge, Karachi, Central under section 16 subsection (1) of Sindh Rented Premises Ordinance dated, 17-7- 2008 and order passed on the application under section 17 of the Sindh Rented Premises Ordinance, 1979 whereby the Court had dismissed the application and had directed the parties to lead evidence on the issue framed by the Court.
2. ' Brief facts of the case are that Mst. Ejaz Fatima had filed Rent Case No, 139 of 2008 in the Court of Vth Rent Controller and Senior Civil Judge, Karachi, Central stating therein that she is owner of C- 333, Block 6, F.B. Area, Karachi having purchased the same through registered sale-deed dated 22- 8-2008 from previous landlady Nasreen Jehan Ghori. The opponent Muhammad Iqbal Hyder was tenant of the said bungalow and after the change of hands regarding title of the house the opponent became tenant of Mst. Ejaz Fatima as per tenancy agreement dated 17-7-1995 between the tenant and the previous owner Mst. Nasreen Jehan Ghori. As per rent agreement the tenant was required to pay rent at the rate of Rs,8,500 per month plus charges of utility viz water charges, gas, telephone bills etc. After the purchase of the property the applicant came to know that tenant had filed Suit bearing No, 193 of 2003 on 20-8-2003 through his late mother against the landlady Mrs. Nasreen Jehan Ghori for specific performance of the contract. Upon an application moved by plaintiff/tenant under Order I Rule (10) C.P.C. Mst. Ejaz Fatima became party into the suit which is still pending in the High Court. Respondent Mst. Ejaz Fatima had sought the ejectment of the tenant on the ground of wilful default in payment of rent for 53 continuous months and arrears of rent at the rate of Rs,8,500 per month are accumulated on the date of filing of ejectment application to the tune of Rs, 4,59,000. She has also claimed the future rent at the same rate. After service of notice on the other party regarding rent case Mst. Ejaz Fatima had moved application under section 16(1) of Sindh Rented Premises Ordinance, 1979 for passing of tentative rent order by the Court and the learned Civil Judge had passed an order, dated 17-7-2008 whereby the petitioner was directed to deposit arrears of rent within 25 days. Instead of depositing the rent the petitioner had filed the present petition in the Court on which I had issued notice on 11-8-2008 to the landlady and I had stayed the impugned order of the Rent Controller till 31-8-2008. Today since morning the petitioner as well as his counsel are called absent. The Advocate for the landlady Mr. Masood Khan Ghori is present along with Mr. Nawab Mirza who is husband and attorney of landlady. Mr. Nawab Mirza is also a practising Advocate. Mr. Masood Khan Ghori the learned counsel has vehemently argued that the petition is not maintainable and has been wrongly entertained by this Court. He states that the order dated 11-8-2008 be recalled and petition be dismissed as the tenant is bound to pay the monthly rent to the Nazir of the Court in accordance with the order passed by the Court along with the arrears of rent. Learned counsel has argued that a defaulter in payment of rent cannot knock the door of the Court for relief unless he pays the rent and arrears of rent in accordance with order passed by a competent Court of law. He has argued that a person who has no respect for Court's order and is not complying the order cannot seek relief from higher forum or from the same Court. He has stated that in the circumstances of the case this petition is not maintainable and he reiterated his arguments that the petition was wrongly entertained by this Court. He argued that this petition should have been dismissed in limine. In support of his arguments he has relied upon Waheedullah v. Mst. Rehana Nasim and others 2004 SCMR 1568. The Honourable Court has observed that:- "(6) The order of deposit of arrears of rent and future monthly rent regularly should have been complied with by the petitioner to qualify him to be heard in support of his defence plea raised in the written statement. He failed to do so. The plea raised by him prima facie does not appear to be bona fide, for oral agreement of sale was raised. It has been rightly observed that till such time the Court of competent jurisdiction decides about the existence of such agreement of sale, the same could not be made the basis for denying the right of the landlord of rent about which order was necessary to be passed to safeguard the interest of the parties and in particular the landlord so that in frivolous litigation, he may not be deprived of the rent."
3. 'PLD 1986 Karachi 74 Khawaja Ammar Hussain v. Muhammad Shahbiruddin Khan. This property in respect of status of tenant and effect of Agreement of Sale. In this order the Honourable High Court has discussed in detail section 54 of the Transfer of Property Act 1882. The Sale Agreement between the parties and effect of section 53-A of the Transfer of Property Act, 1882. The Court in paragraph 12 of the order has observed as under:-- "(12) A perusal of the above terms shows that it does not determine the relationship of landlord and tenant between the parties for neither it says that the respondent shall not pay the rent from the date of entering into the agreement nor does it expressly or impliedly provide that the possession of the premises from the date of the agreement shall be considered to be possession in part performance of the contract." and has final conclusion in paragraph No,19 of the judgment as under:-- "(19) I, therefore, hold that by entering into the agreement of sale, the respondent did not acquire any title to the property nor does the doctrine of part performance as contained in section 53-A of the Transfer of Property Act apply to the facts and circumstances of this case."
4. 'Another case Haji Jan Muhammad v. Ghulam Ghaus and 2 others 1976 SCMR 141. In this case the Honourable Court has held that Agreement of Sale does not exempt the tenant from payment of rent to the landlord. Tenant continued occupation of premises in violation of law could hardly be put forth as defence or a step towards part performance.
5. ' The learned counsel for the respondent Landlady has further relied on authorities reported in 1983 CLC 1309 Muhammad Bashir v. Allah Dad and another, 1999 CLC 1932 Anwar Ali through Legal Heirs v. Muhammad Hussain, 1984 SCMR 741, Allah Yar and others v. Additional District Judge and others, 1992 ALD 549 (1) Ismail Shah v. Wadho Akhara Trust and 1999 SCMR 2574 Muhammad Younis v. Atta Muhammad and 2 others.
6. 'In the above noted judgment the Honourable Courts have taken similar view.
7. I have heard learned counsel for the respondent and have perused the contents of memo. Of petition and annexures along with it I have also gone through precedents placed at bar by the learned counsel. I am in agreement with the case law produced by the learned counsel for respondents Nos.2 and 3. I find no force in the petition. The petition No, S-346 of 2008 is dismissed. Since it is an old matter the trial Court is directed to dispose of this matter within two months of receipt of this order.