1. ' SALMAN HAMID, J.---By way of present constitutional petition, the petitioner has impugned the order dated 3-5-2010, passed by the IInd Additional District Judge Shaheed Benazirabad, in Civil Appeal No,5 of 2010, preferred by the present petitioner against the respondent No,1, under clause
(ff) of subsection (1) of section 104 of the Civil Procedure Code, 1908 (wrongly mentioned as 104 (FF)
2. C.P.C.)
3. ' The facts leading to the filing of the above petition, in a nutshell, are that the late husband of the respondent No,1 let out on rent a house built on portion of Plot No,B-59. Deh 25 Dah carved from Revenue S.No,120/1, Deh-25, Taj Colony, Nawabshah (Rented Premises) to one Mr. Muhammad Din at the rate of Rs.750 per month. After the death of the husband of the respondent No,1, in or about January, 2003, she got her name entered in the Revenue Record after purchasing the share of her minor daughter and that of the two cousins of her late husband whereafter requisite notice under section 18 of the Sindh Rented Premises Ordinance, 1979 (SRPO 1979) was sent to the petitioner and the rest of the tenants of the Rented Premises which despite receipt was ignored. Substantial default in payment of monthly rent having been made by the tenants, including the petitioner in respect of the Rented Premises, Notice dated 4-8-2004 was served on them and thereafter the respondent No,1 being a widow, preferred Rent Application No,14 of 2005 (Rent Application) under section 14 of the SRPO 1979 before the 1st Senior Civil Judge and Rent Controller Nawabshah (now Shaheed Benazirabad) on the grounds of default in payment of monthly rent from January, 2003 upto July, 2004 and thereafter upto December, 2005; for personal bona fide need and impairing the Rented Premises.
4. ' The petitioner and the other opponents of the Rent Application, disputed altogether the relationship of landlord and tenant and agitated that the late husband of the respondent No,1 in terms of Sale Agreement dated 4-10-1998 against sale consideration of Rs.7000 and clearance of loan amount of House Building Finance Corporation had already sold the Rented Premises to them.
5. Resultantly, payment of monthly rent was altogether denied together with the personal need of respondent No,1 and impairment to the Rented Premises.
6. ' At trial respondent No, I succeeded in fully establishing all that was pleaded by her in the Rent Application which remained un-shattered despite extensive cross-examination on behalf of the petitioner and other opponents of the Rent Case. However, the petitioner and the opponents of the Rent Case despite their claim that the Rented Premises were sold by the late husband of the respondent No,1 failed to adduce any evidence in respect thereof despite various chances and their side was closed on or about 11-10-2006. Judgment in the Rent Case was handed down on 24- 11-2006 by the learned Rent Controller whereby the petitioner and rest of the opponents of the Rent Case were ordered to hand over possession of the Rented Premises within 60 days of the judgment. No appeal before the court competent to entertain it was filed against the judgment dated 24-11-2006, as a result whereof, after expiration of the limitation period it attains finality.
7. ' The record of the file would further show that after filing of the Rent Case by the respondent No,1 against the petitioners and the opponents of the Rent Case, they in their wisdom preferred First Class Suit No,304 of 2007 (subsequently re-numbered as 232 of 2007) for specific performance and injunction on or about 10-9-2007 in respect of Sale Agreement dated 4-10-1998, alleged to have been executed by the late husband of the respondent No,1 in favour of the petitioner before 1st Senior Civil Judge, Nawabshah (Shaheed Benazirabad). It is also evident from the record that this suit was dismissed for non-prosecution on 31-3-2009 and that application for its restoration under Order IX Rule 9, C.P.C. Was filed by the petitioner apparently after the expiration of period of limitation prescribed for it inasmuch as that it was accompanied with application of section 5 of the Limitation Act. Contents of the present petition also revealed that the application for restoration is still pending. It may be noted that though injunction application for interlocutory order was preferred in such suit, no interim relief was granted.
8. ' Corning back to the Judgment dated 24-11-2006, passed in the Rent Case which attained finality, the respondent No,1 preferred Execution Application No,4 of 2007 before the 1st Senior Civil Judge, Nawabshah (Shaheed Benazirabad) for its enforcement wherein, objections were filed by the petitioner, harping on the same tune that was played before the Rent Controller in Rent Case. After hearing, the objections were dismissed by the 1st Senior Civil Judge, Nawabshah (Shaheed Benazirabad) vide Order dated 21-1-2010 whereby the Execution Application stood allowed.
9. ' Being aggrieved by the above Order, the petitioner preferred Appeal No,5 of 2010 before the learned llnd Additional District Judge, Shaheed Benazirabad under section 104(1)(ff), C.P.C., which too was dismissed vide impugned order dated 3-5-2010, operative part whereof reads as under:-- "I have given my due consideration to the arguments submitted by the learned counsel for both sides and have gone through the record. It is an admitted fact that the Rent Application filed by respondent was allowed by learned Rent Controller vide order, dated 24-11-2006, whereby the respondents were directed to hand over the possession of premises to applicant/landlord. It is further admitted fact that against the order allowing Rent Application, no appeal was filed by the appellants. Thus the order passed by Rent Controller attained finality and the same was not challenged before the upper forum. Mere pendency of civil suit is no ground for rejection of Execution Application which has been allowed properly and in accordance with law. '
10. ' The learned counsel for the appellant has not shown any illegality or irregularity of learned executing Court while allowing the Execution Application; therefore I do not find any merits to the instant Civil Appeal. Hence the same is hereby dismissed with cost."
11. ' Provision of section 14 of SRPO 1979 speaks about privileges and/or different species of landlords, who would be entitled for the possession of the building (property let out on rent) after eviction of tenant therefrom in a "summary manner" and is thus in stark contrast to section 15 thereof wherein, only after full fledged inquiry by way of long cumbersome evidence of the parties landlord would be entitled for a judgment of eviction or otherwise if the tenant is not fallen prey to the provisions of section 16 of SRPO 1979. Despite availability of summary proceeding under section 14 of SRPO 1979, with the respondent No,1, it is unfortunate to note that till date the fruits of Rent Case that was filed as far back as in 2005 have not been reaped by her whereby the very spirit of section 14 of SRPO, 1979 rendered frustrated, as the petitioner has kept the respondent No,1 entangled in it for one reason or the others.
12. ' Though the petitioner claims title in the Rented Premises on the basis of Sale Agreement dated 4.-10-1998 and has denied the rent thereof to the respondent No,1, it is astonishing that no steps for its enforcement and implementation had been taken up till 2007 and that suit for specific performance was filed that too prima facie beyond the period of limitation prescribed for such types of suits only when Rent Case was filed by respondent No,
1. Needless to mention that mere agreement of sale would not create any right or title in favour of the purchaser and that the title in the rented premises is to be perfected by way of a lease in respect thereof. In the present case the petitioner despite affording various chances by the Rent Controller to adduce evidence failed which shows and/or proves the veracity of the Agreement of Sale dated 4-10-1998 to his detriment.
13. It was under these circumstances that the Rent Controller ordered ejectment from Rented Premises.
14. ' The suit for specific performance which was filed by the petitioner by itself would not entitle the petitioner to claim title of the Rented Premises. Therefore the petitioner at no stage of time was justified to discontinue the payment of rent of the Rented Premises, more-so when Notice of change of ownership was also received. It is well-settled that when a person who was not the owner of the rented premises occupies it and then sets up title which is adverse to the owner thereof would not by virtue of setting up of that title becomes an owner and that such person by fiction of law would remain a tenant unless proved otherwise, one of the ways would be filing of suit for specific performance and getting a decree in such regard and till such time, under the law, he would be bound by the terms of rent law by which he is governed.
15. ' The upshot of the above discussion would therefore be that the petitioner having failed to prefer any appeal against the judgment dated 24-11-2006, passed in Rent Case and that the suit for specific performance filed by the petitioner seemingly beyond the period of limitation also stood dismissed for non-prosecution, restoration of which is still pending and that the objections those were raised in Execution Application No,4 of 2007, which were patently lame and had already been examined and discarded by the Rent Controller and that Appeal No,5 of 2010 had been dismissed and the fact that the petitioner is not allowed to have a thing indirectly for which he was not entitled directly this petition must fail and therefore by way of a short order dated 23-8-2010 it was dismissed in limini with cost of Rs.35,000, inasmuch as that the petitioner not only kept the respondent No,1 deprived of her property from its enjoyment but also kept her involved in unnecessary frivolous litigation. These are the reasons for dismissal of the petition with cost.