1. ' ZAHID HAMID, J.--- By this judgment the instant C.P. No,S-497 of 2007 which has been filed to assail the concurrent findings of the two Courts below in Rent Case No,84 of 2003 and F.R.A. No,197 of 2004 shall stand disposed of.
2. ' Briefly stated the facts are that Muhammad Afzal Khan husband and attorney of Mst. Shehla Naz filed Rent Case No,84 of 2003 in the Court of learned Vth Rent Controller Karachi East inter alia on the ground of default in payment of rent since July, 1997. This rent case was filed after the plaint in Suit No,1059 of 1998 filed by Muhammad Afzal Khan was rejected vide order dated 31-8-1998 by the learned IXth Senior Civil Judge Karachi East as the respondent No,1 pleaded in defence that relationship of landlord and tenant existed between the parties. In circumstances the Suit No,1095 of 1998 which was filed under section 9 of the Specific Relief Act was disposed of on 31-8-2001 by way of rejection of the plaint. Rent case No, 84/2003 was filed thereafter by the petitioner through her husband/attorney. At that she was possessed with the registered power of attorney from Mst.
3. Zainab Khatoon whereas the respondent No,1 was depositing monthly rent in MRC No,789 of 1997 in favour of the deceased husband of M5. Zainab namely Waheeduddin.
4. ' A sublease date 30-8-1980 on record shows that Mst. Zainab was the widow of late Waheeduddin.
5. In the written statement in Rent Case No,84 of 2003 the respondent No,1 claimed that notice under section 18 of SRPO 1979 was not served upon him though he admitted that there existed relationship of landlord and tenant. However the fact remains that even after institution of the said rent case the respondent No, 1 continued to deposit rent in MRC No,789 of 1997 in favour of dead husband of Mst. Zainab Khatoon under whom Mst. Shehla Naz was claiming her right and title per registered General Power of Attorney.
6. ' The case building after disposal of the rent case stood transferred on 17-10-2005 in the name of husband of Shehla Naz who has now filed application in the present petition for being impleaded as party. This application has been opposed by filing C.A. Of the respondent No,1 who has annexed true copies of paid challans dated 9th October 2008 and 6th December 2008 of MRC No,789 of 1997 evincing the same position as disclosed above that he was still making payment of rent in MRC No, 789 of 1997 in favour of dead person though long before he had notice of institution of Rent Case No, 84 of 2003 wherein he filed written statement and half heartedly denied relationship of landlord and tenant on the ground that only an agreement to sell was possessed by the husband of Mst.
7. Shehla Naz which did not make a valid transfer of the property by way of agreement of sell. Thus the respondent No, 1 had admittedly claimed himself to be the tenant in Rent Case No,84/2003 and again in the said rent case he was approbating and reprobating and saying that the above agreement to sell did not clothe Mst. Shehla Naz with the title of proprietor when she was possessed with registered Power of Attorney on the basis of which she ultimately passed on the title to her husband/attorney in 2005.
8. ' After filing written statement the respondent No,1 did not participate in the proceedings and the same were unilaterally concluded after the affidavits filed by attorney of Mst. Shehla Naz and a witness remained unrebutted on record. The respondent No,1 also failed to file any affidavit in evidence. The written statement of the respondent No,1 in Rent Case No,84 of 2003 under the circumstances therefore lost its validity. Nonetheless the admissions made by respondent No,1 against his interest that the he was the tenant and the challans which he filed along with his counter affidavit in the present petition cannot be lost sight of.
9. ' The Rent Case No,84 of 2003 was dismissed and it was observed by the learned Controller that till the date of filing of affidavit in evidence the applicant could bank only an agreement to sell as such property was not transferred and that it was settled law that an agreement to sell did not create any right, title or interest in the property and that since the applicant was claiming ownership of the demised premises on the basis of agreement to sell she was not the owner and therefore the relationship of landlord and tenant did not exist.
10. ' Aggrieved by the above order of dismissal of Rent Case No,84 of 2003 petitioner filed FRA No, 197 of 2004 which came to be transferred to learned Vth Additional District Judge Karachi East. The respondent No,1 continued to remain absent and this FRA was dismissed by maintaining the order of the Controller who too had observed that the agreement to sell could not bestow any title upon the appellant and in absence of service of notice section 18 of SRPO 1979 it could hardly be assumed that any right to receive rent was transferred to the appellant.
11. ' The learned two Courts below failed to notice that Shehla Naz had filed rent case through her husband Muhammad Afzal Khan to whom the case building was transferred by way of registered instrument in his favour during the course of proceedings and further she was equipped with the registered General Power of Attorney executed by the former owner i,e, Mst. Zainab of the property in her favour. This General Power of Attorney also conferred upon her the right to manage, control, supervise, look after and deal with the entire affairs of the property viz. Plot No,66-D, bearing Survey Sheet No, 35 P/1 measuring 93 square yards in PECHS Karachi under this power of attorney Mst.
12. Zainab Khatoon the executant was stated to have acquired registered sublease per Registration No,1931, Book I dated 30-8-1990 (M.F. Roll No, 1287 dated 12-9-1990) with the office of Sub-Registrar T-Division III Karachi and authorized to institute, defend or oppose all suits, petitions, appeals, memorandum, plaints, complaints or claim etc., in all Courts of law, and to execute and sign all documents including declaration of gift, lease deed, sublease deed, sale-deed, transfer deed, gift deed, deed of Rectification, Redemption Deed or any other documents and to sell, charge, encumber, and transfer the said property by Hiba Bil Ewaz and to execute all kinds of instruments affect mutation and represent Mst. Zainab inter alia before Civil Court and any other Court from the lowest to highest and to accept service of summons and to file or defend all sort of cases and suits in concerned Court of law and to deal with the entire affairs of the property according to her sole discretion and generally to do all acts and things as fully and effectually in all respect as Mst.
13. Zainab could do if personally present.
14. ' Adverting back to the capacity of Mst. Shehla Naz it may be pointed out that her status of being landlord was not seriously disputed inasmuch as in the written statement the respondent No,1 undoubtedly expressed that there existed relationship of landlord and tenant between Mst. Zainab widow of Waheeduddin and the father of the respondent No,1 namely K.B. Bashir with whom the respondent No,1 and other legal heirs were residing and the tenancy devolved on the respondent No,1 after the death of his father. The respondent No, 1 did not mention names of other legal heirs of K.B. Bashir and claimed that the respondent No,1 was still the tenant of the demised premises and was allegedly making regular payment of rent in favour of original owner Mst. Zainab Khatoon in MRC No,789 of 1997 filed by respondent No,1 alone against Waheeduddin husband of Mst. Zainab.
15. The respondent No,1 produced paid challans by him in the present proceedings showing his name as tenant and the name of Waheeduddin as landlord and deposited last amounts in October and December, 2008. It is further claimed that he was not a defaulter.
16. ' Both Muhammad Afzal Khan the attorney of Mst. Shehla Naz and his witness Hidayatullah filed their affidavit in evidence before the learned Controller and stated that the General Power of Attorney in favor of his wife Mst. Shehla Naz was executed to facilitate the execution and registration of proper sale-deed in his favour which was finally registered and when he visited the case premises after purchasing the same he found respondent No,1 in occupation claming himself to be the son of Mst. Mussarrat and that when the respondent No,1 could not prove his legitimate tenancy he was forced to file suit under section 9 of the Specific Relief Act but the respondent No,1 in his written statement in that suit claimed himself to be the tenant and therefore ultimately the plaint in that suit was rejected on the grounds that the same was hit by the provisions of SRPO and that the respondent No,1 wilfully failed to pay any rent since 26-7-1997 or at least since 31-1-2001 when the above order of rejection of plaint was passed and that Javed defaulted and was liable to be ejected from the demised premises.
17. ' It was further claimed in Rent Case No,84 of 2003 that the respondent No,1 was approached several times in presence of the witnesses and asked to clear the rent due from him in respect of the demised premises @ Rs,4,000 per month but the same was not paid. The witnesses Hidayuatullah and Afzal Khan produced by the applicant were neither cross-examined nor the respondent No,1 filed his affidavit in evidence of any of his witnesses in rebuttal and as such adverse inferences drawn against the respondent No,1 by the learned two Courts below and it was to be assumed that whatever was stated as to existence of relationship of landlord and tenant and default was not disputed and they could therefore allow the ejectment. All the same the respondent No,1 has been allowed to retain occupation of the tenement when he was approbating and reprobating throughout the proceedings and did not rebut the claim of the petitioner.
18. ' After the respondent No,1 was served in Rent Case No,84 of 2003 it had become obligatory to pay the rent to Mst. Shehla Naz or Mst. Zainab as the bar emanating from want of a registered sale- deed did not come in way of entitlement to claim rent in fact, and circumstances of the case. It is therefore clear that the findings of the two learned Courts below suffer from perversity. It is well settled that legal principles must not be stretched to their most extreme consequences regardless of equity and good sense. This principle is enshrined in the maxim, "Apices Juris Non Sunt jura". In this context the learned counsel for petitioner has also relied upon PLD 2004 SC 154 to emphasize that technicalities should not be allowed to over shadow the administration of justice. Even otherwise a wrong cannot be allowed to perpetuate.
19. ' In view of the foregoing reasons the impugned judgments of the two learned Courts below are set aside and the Rent case No, 84/2003 is allowed to the extent that the respondent No,1 is directed to hand over vacant and peaceful possession of the case premises to the petitioner within 90 days hereof without fail.
20. ' Petition stands allowed accordingly to such an extent with no order as to costs.