' SHAHID ANWAR BAJWA, J.---By this order I propose to decide Constitution Petition No,S-62 of 2007 and Constitution Petition No,S-543 of 2007. The facts of C.P. No,S-62 of 2007 are that Syed Irfan Ali and Muzaffar Ali are the petitioners in that petition and Syed Rehmat Ali, Syed -Rizwan Ali and Syed Imran Ali are private respondents in that petition. All of them are sons of one Syed Yaqoob Ali, who died in 1979. The petitioners of this petition filed Ejectment Application No,357 of 2003 against three private respondents. Therefore, I will refer to them in this judgment as applicants and opponents respectively. The applicants in their ejectment application stated that they are owners of a house constructed on Plot No,21 Block A, Survey No,530, consisting of ground + first floor, situated in Deh .Hajiro Tapo Songal, Ishaqabad, Liaquatabad, Karachi, by virtue of sale-deed registered on 24-8- 1992 (to the sale-deed I shall return later). It was claimed in the ejectment application that opponents are tenants of the applicants and they committed default in payment of rent from January, 1983 till 2003 and rate of rent was stated at Rs,5000 per month. It was also stated in the ejectment application that applicants needed the premises for their respective family members because over the year the families had grown. To the ejectment application written-statement was filed by the opponents. Opponent stated that the property was purchased by their father and the applicants by committing fraud got property transferred in their names. It was pleaded in the written-statement that property was constructed with joint amount of the opponents and applicants. Thus relationship of landlord and tenant was denied. It was also stated that opponents had filed Rent Case No, 74 of 2003 against the applicants in which applicants/opponents of this rent case claimed that they were owners of Shop No,28, Khalid Cloth Market, Liaquatabad, Karachi and eviction was claimed against the said Irfan Ali and Muzaffar Ali and as counterblast this ejectment application has been filed.
2. Application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 was filed by the applicants. After notice of this application was issued to the opponents, in their objections opponents stated that the applicants with concealment from the opponent and other family members malafidely transferred the property in their names. When this became known to the opponents and other family members, objections were raised but due to interference of their mother both the parties remained silent and therefore they continue to reside jointly and that after lapse of 10 years applicants have all of sudden demanded rent. It was also stated that the applicants reduced rent of the shop which was subject-matter of the other case from Rs,15000 to Rs,1000 per month and matter remained like that. The Rent Controller vide order, dated 27-10-2003 passed the following order on application under section 16(1) of the Ordinance:-- "(3) Advocate for the opponent has argued that the applicants had obtained the Shop bearing No,28, Khalid Cloth Market Liaquatabad, Karachi on rent of Rs,15000 in the year, 1990 and the present premises was obtained by the parties jointly, but the applicant without consent of the opponent and other family members malafidely transferred the same on their names when it was known by the opponents and other family members then an objection was raised before them, but due to interference of their mother both the parties remained silent hence there were residing jointly and after lapse of sometime the applicants demanded the rent of their portion on which the opponents refused to pay the same, thereafter the applicants reduced the rent of shop; which is in their possession from Rs,15000 to Rs,10,000 as such this matter remained solved with the interference of their mother, now they have stopped the full rent of the shop for which the opponents have filed the Rent Case No,74 of 2003, which is pending before this Court and in revenge of the above case the opponents have filed this case hence they are not entitled for any relief as they claim in the application. He prayed for dismissal of the instant application.
(4) I have heard both the sides and perused the relevant papers, It appears that applicant has claimed that opponent has not paid the rent from the month of May, 2000 to April, 2003 at the rate of Rs,5000 which comes to Rs,180,000 and opponent has not produced any documents, which could prove that he has made the payment of the disputed arrears of rent, therefore, opponent is directed to deposit the arrears of rent in Court, which comes to Rs,180,000 as claimed by the applicant and he, is further directed to deposit the arrears of rent from the month of May, 2003 to October, 2003 i.e, for 6 months at the rate of Rs,5000 amounting to Rs,30,000 within a period of 45 days here of opponent is further directed to deposit the future rent at the same rate of rent on or before the 10th of each English Calendar month. However, the arrears of rent amounting to Rs,210,000 (two lac ten thousand) is hereby withheld and applicant is not entitled to withdraw the same till further order. Application allowed accordingly with no order as to cost."
3. Since tentative rent order was not complied with, application under section 16(2) of the SRPO was filed. On this application eviction was ordered by the learned Rent Controller vide order, dated 29- 5-2004. In the operative paras it was ordered as under:-- "It appears that opponents have challenged the order of this Court in Civil Petition No,809 of 2003 and the Honourable High Court of Sindh, Karachi vide order, dated 12-2-2004 directed the opponents to deposit arrears of rent amounting to Rs,2,10,000 within fifteen (15) days and in case of noncompliance of order, the Status Quo order passed by the Honourable High Court of Sindh, Karachi stands vacated.
' In view of the above discussion, I am of the opinion that opponent has failed to comply the order, dated 27-10-2003, passed on application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 and also failed to comply the order of the Honourable High. Court of Sindh Karachi, dated 12-2-2004, therefore, I have no hesitation to stick off the defence of the opponents.
Opponents are hereby directed to vacate the premises and to hand over its vacant and peaceful possession to the applicants within sixty (60) days hereof. Application is allowed accordingly, with no orders as to cost." .4. Being aggrieved by the order FRA was filed which appeal was dismissed vide order, dated 9-1- 2007. This writ petition has been filed against that order.
5. Coming to Writ Petition No,S-543 of 2007 when the F.R.A. Was pending an application under Order I, Rule, 10, C.P.C. Was filed by Msi. Amtul Bashir, mother of both the applicants and the opponents. In her application the lady pleaded that she had filed civil suit in the Court of 1st Senior Civil Judge.
Central at Karachi, wherein she had disputed title of the demised premises and since applicants by concealment of facts and misrepresentation had obtained eviction order therefore, in order to segregate the chef from the grain she had moved application under Order I, Rule 10, C.P.C. This application was rejected by the appellate Court vide order, dated 18-2-2006. The appellate Court held that the appellants in their written-statement had not specifically denied relationship of landlord and tenant (because the appellant had pleaded that in consideration of the premises in their occupation they had reduced rent of the shop from Rs, 15,000 to Rs, 10,000). Application under Order I, Rule 10, C.P.C. Was dismissed. Being aggrieved by this order the lady filed an application under the provisions of section 20 of the General Clauses Act, pleading that point of law and facts had not come under active consideration of the Court. It wanted order to be reviewed and recalled.
This application was dismissed vide order, dated 2-9-2006. Learned counsel held that it had already passed a considered, speaking order while deciding application under Order I, Rule 10, C.P.C. Thereafter it dismissed the application for recall and review. Being aggrieved by this order Writ Petition No,S-543 of 2007 was filed by Mst. Amtual Bashir and the applicants were arrayed as respondents Nos.3 and 5 and opponents were arrayed as respondents Nos. 1, 2 and 4.
6. Learned counsel for the petitioner in C.P. No, S-543/2007 also held brief for Advocate for the petitioner in C.P. No,S-62/2007 and made the following submissions:--
(1) That in presence of dispute as to title between Mst. Amtul Bashir and the applicants, learned Rent Controller could not have passed a tentative rent order.
(2) That the applicant No,1 being eldest male member amongst the children of Yaqoob Ali took advantage of his seniority and old-age of his mother and got property mutated in his name.
(3) Without deciding this aspect of controversy tentative rent order could not have been passed by the Rent Controller.
7. Learned counsel for the respondents submitted that sale-deed in respect of the property was executed and registered in April, 1982 and all these facts were in knowledge of the opponents and opponents remained mum for 13 years, He further submitted that relationship of landlord and tenant is admitted by the opponents because firstly it was not specifically denied and secondly opponents had themselves stated that in consideration of their having been permitted to live they reduced rent from Rs,15,000 to Rs,10,000 per month. Learned counsel further submitted that the trial Court showed indulgence to the opponents in the tentative rent order because although in the rent application rent had been claimed from January, 1983 to April, 2003 i.e, 232 months but while passing tentative rent order the learned Court below ordered payment of only 42 months i.e, for the period between filing of the Rent Application and the date for the tentative rent order and for period 3 years prior to filing of the rent application. Learned counsel further submitted that Writ Petition No,S-543 of 2007 was filed on 13-12-2007 whereas the order challenged in this petition had been passed on 2-9-2006. Therefore it was hopelessly barred by laches. Learned counsel for the applicants relied upon Mst. Siddiqa Begum and others v. Irshad Ali Shah, PLD 1999 Karachi 311, Shahid Mehmood v. Mst. Nasreen Masood and 4 others, PLD 2007 Karachi 178, Tabassurn Iqbal Sheikh v. District and Sessions Judge and others 2007 CLC 546 and Merajudin Ghoury v.
Muhammad Aslam and others PLD 2008 Karachi 160.
8. On the other hand, learned counsel for the opponents relied upon Syed Sarfraz Ali v. Shah Jehan Begum and another 1996 CLC 1034, Ardeshir Cowasjee and others v. Karachi Building Control Authority and others PLD 2004 SC 70, Bashir Ahmad and others v. Ghulam Ali and others 1991 SCMR 1656, Waseem Haroon v. Mr. Abdul Shakoor Tabbani and another 2006 MLD 605 Mst. Rashid Jehan v. Muhammad Ashfaq 1991 MLD 2619.
9. I have considered the submissions made by the learned counsel and have also gone through the record of the case and case-law cited by the counsel.
10. In Siddiqa Begum's case it was held that even on the basis of time barred rent, landlord would be entitled to maintain his ejectment -case on the ground of default under section 15 of the Ordinance. In Shahid Mehmood's case tentative rent order was passed and tenants were directed to deposit arrears of rent within specific period which they failed. Consequently in terms of provisions of section 16(2), defence of the opponents was struck off. The High Court observed that scope of interference in constitutional jurisdiction is limited and the appellate Court is vested with all the powers of the Rent Controller. Tabbasum Iqbal's case is also on the point that if the tenant failed to comply with tentative rent order his defence, whatever it maybe, is liable to struck off.
Same is the finding in Meirajuddin's case.
11. In Sarfraz Ali's case it was held that order passed by Rent Controller on application under Order I, Rule 10, C.P.C. Would be an appealable order. It was further held that if a person is interested in a case being a proper or necessary party, dictates of equity and justice warranted impleading him in that case. This case does not help the contention of Mst. Amtual Bashir because there is already on record a registered sale-deed. All that Mst. Amtual Bashir claimed was that the property was constructed with joint family money. It may so, but since the opponents themselves admitted, though obliquely existence of relationships of landlord and tenant, the facts are therefore distinguishable.
12. Ardeshir Cowasjee's case related to question of implement in a constitution petition and therefore the facts are quite distinguishable.
13. In Bashir Ahmed's case the petitioner sought to be impleaded as a party on the ground that they had purchased the property in dispute pending adjudication in regular second appeal.
Application was dismissed by the High Court on the ground that doctrine of lis pendent could apply on the conclusion of the litigation. Leave to appeal was granted by the Supreme Court because it was contended before it that no doubt doctrine of lis pendens would be applicable on the conclusion of the litigation, but there was no justification not to allow petitioners to be impleaded as a party in litigation as their claim was based on official attestation of mutation in their favour.
The present case is ejectment case and not a case for title to a property. Waseern Haroon's case was in connection with the sale of particular property. In Mst. Rashid Jehan's case it was held that Rent Controller was competent to vary and alter his order while exercising his power under section 20 of the West Pakistan General Clauses Act. In the present case such power has been exercised by the Rent Controller and application has been dismissed on merits. I do not think any support can be drawn by the opponents from his case.
14. Relationship of landlord and tenant was not denied by the opponents. The opponents themselves clearly stated that in consideration of their being allowed to live in the premises rent of the shop was, reduced from Rs,15,000 to Rs,10,000 per month. Order passed by Rent Controller was a tentative rent order and not a final determination. It is not permissible for a party to defy tentative rent order and then be allowed to contest the case on merits. The order passed by the appellate Court is a very detailed order and learned counsel has failed Ito point out any infirmity or irregularity in the order.
15. Be that as it may, in constitution petition High Court should be most reluctant to interfere with concurrent orders passed by two Courts below particularly when orders on (sic) are passed after paying due attention to the law and the submissions of the parties. Consequently the petitions are dismissed in limine.