' AHMED ALI M. SHAIKH. J.--- Being aggrieved and dissatisfied with the order dated 2877-2011 passed by the learned Additional Controller of Rent, Clifton Cantonment, Karachi, whereby he allowed the ejectment application No,22 of 2011, filed by the respondent and directed the appellant to pay arrears of rent of Rs,3,90.000/- for a period from February, 2009 to July, 2011 and hand over its vacant and peaceful possession to the petitioner within thirty days.
2. Briefly facts of the case are that in the year 2002 Mst. Hassan Jan wife of respondent inducted the appellant as a tenant in respect of Flat No, 1 . 1st Floor, Plot No,43-C. Khayaban-e-Shahbaz Commercial Street No,l. Phase VI. DHA. Karachi at a monthly rent of Rs,6,000/- per month. Since the appellant has defaulted in payment of rent since February, 2009 the respondent filed Rent Case No,27 of 2011 on the ground of default and bona fide need of his son.
3. According to the appellant he has spent Rs,1,50,000/- towards renovation. Etc. And on 1-8-2008 has purchased the premises in question from Mst. Hassan Jan wife of respondent against a consideration of Rs,10,00,000/- but the wife of respondent in spite of receiving the full sale consideration in cash has failed to execute conveyance deed. Finally all of a sudden he came to know about pendency of Rent Case No,22 of 2011 before the trial Court.
4. At very outset learned counsel for appellant has contended that no relationship of tenant and landlord existed between the parties as the appellant has purchased the premises in question on payment of Rs,10,00,000/- in cash to Mst. Hassan Jan. According to the learned counsel, instead of executing conveyance deed. Mst. Hassan Jan kept him on false promises, gained time and filed a frivolous ejectment application, which was allowed ex parte by learned trial Court. According to him the impugned order is liable to be set aside as the same is against the principles of natural justice. Per learned counsel the impugned order is bad in law as no eviction order by a Rent Controller can be passed against the owner. He has contended with vehemence that he was not served with the notice of the Court below and the respondent with mala fide intention has mysteriously obtained the impugned order. In support of his contention, the learned counsel has relied' upon the cases of Imtiaz Ahmed v. Ghulam Ali reported in PLD 1963 SC 382, Manager, Jammu and Kashmir State Property v. Khuda Yar reported in PLD 1975 SC 678, Muhammad Hussain Afzal v.
Ziaullah reported in PLD 2003 SC 625, Shamshad Ali Qureshi v. Addl. Collector of Rents reported in PLD 1996 Karachi 470, Tanveer Ahmed v. Nasarullah Khan reported in 1993 MLD 657 and Anita Subhan Khan v. Jamaluddin Ansarie reported in 1990 CLC 1224.
5. On the other hand, learned counsel for the respondent has supported the impugned order and submitted that the respondent/Mst. Hassan Jan has never received any amount from the appellant towards sale consideration of the flat in question and in order to deprive the respondent of the fruit of lawful impugned order, the appellant with mala fide intentions has attempted to twist the facts and taken a plea alien to the record.
6. Perusal of the record reflects that firstly on 9-3-2011 notice was sent to the appellant through courier and bailiff. However, per bailiffs report the appellant was present in the premises but he refused to accept the same. Thereafter on 23-3- 2011 in presence of two witnesses notice was pasted on the outer door of the premises, which was followed by publication of notice in daily Nawa-e-Waqt dated 9-4-2011. On 18-4-2011 side of the appellant was closed and respondent was directed to file affidavit-in-ex parte proof on 2-5-2011, which was filed. Nonetheless, on said date nobody appeared on behalf of the appellant. However, in the interest of justice, matter was adjourned to 23-5-2011 for announcement of order but the matter was adjourned again to 13-6- 2011 when for the first time the appellant appeared before the Rent Controller and requested for reopening of his side to file written statement. The request was allowed and matter was adjourned to 7-7-2011 but neither the appellant appeared on the next date nor filed written statement.
Consequently, the matter was again adjourned to 18-7-2011 when due to non-appearance of the appellant or anyone on his behalf his side was closed again. Hence, matter was fixed for announcement of order on 28-7-2011,, when the appellant appeared and the impugned order was passed against him. In the given circumstances, in view of Articles 137 and 138 of the Qanun-e- Shahadat Order, 1984, it can be presumed that the appellant had no defence at all.
7. As far as contention of the learned counsel that he has purchased the flat in question after payment of sale consideration, the same is untenable. The appellant neither filed any receipt nor agreement or deed to substantiate his stand of bona fide purchaser. Be that as it may, title of the parties cannot be determined in rent proceedings, as such, the 'grievance of the appellant cannot be redressed in present proceedings. Additionally, it cannot be said that he has not been given opportunity of hearing at all and ex parte order was passed. The appellant despite service of notice choose to remain absent and when the court fixed the matter for announcement of order, he all of a sudden appeared before the Rent Controller, who as sheer indulgence granted him time to file written statement/objections, if any. However, thereafter the appellant neither appeared before the Rent Controller except on 28-7-2011 nor filed any written statement/objections, though ample opportunities were provided to him to do so. Ultimately, the impugned order was passed. Apart from that, the appellant in appeal did not disclose any reason, plausible or otherwise, for his non- appearance before the Rent Controller, except for one or two occasions, that too of no significance, as the law helps vigilant and not indolent person. It is settled principle of law that where relationship of tenant and landlord is denied on the ground that the tenant has purchased the property in question and he is no more tenant then he has to vacate the premises and file a suit for specific performance of the sale agreement whereafter he would be given easy access to the premises in case he prevails. Reference in this regard can be made to the case of Abdul Rasheed v.
Maqbool Ahmed reported in 2011 SCMR 320.
8. The case-law cited by the learned counsel for the appellant is distinguishable on facts and circumstances of the case and is of no help to his case. Each case has to be considered on its own facts. What may be sufficient in one case may well not be sufficient in another case. In the instant case, the rent case was filed on 1-3-2011, first notice was issued on 9-3-2011 and per bailiff's report the appellant refused to receive the notice. However, on 13-6-2011, the appellant appeared for the first time and at his request his side was re-opened to file written statement/objection. However, despite affording amply opportunities thereafter, the appellant appeared before the Rent Controller on 28-7-2011 but did not file any written statement, consequently, the impugned order was passed. Neither in the memo. Of appeal nor the learned counsel for appellant during course of his arguments has given any explanation either for non-appearance or for non-filing of written statement by the appellant before the Rent Controller.
9. For the foregoing reasons, I by my short order dated 11-4-2012 have dismissed the appeal.