' SALMAN HAMID, J.--Rent Case No,122 of 2003, (Rent Case) was filed by respondent No,1 against the petitioner for eviction from Flat No,70, 2nd Floor Al Sabbah, Block-C, Plot No,FL-8, Sub-Plot No,FL- 8/14, Block-E, North Nazimabad, Karachi, (Flat), on the ground of default in payment of agreed monthly rent of Rs,2000 since May, 1998 up to the date of filing of Rent Case in June, 2003. However, IV-Senior Civil Judge and Rent Controller, Karachi, Central, (Rent Controller) in terms of Order dated 25-11-2004 dismissed the Rent Case. Respondent No,1 preferred First Rent Appeal No,10 of 2005, (F.R.A.) which was contested by the petitioner but II-Additional District Judge, Karachi, Central, (II- ADJ) in terms of Judgment dated 29-8-2011, (Impugned Judgment) reversed the finding of the Rent Controller and allowed the F.R.A. And directed the petitioner to vacate the Flat within 60 days from the date thereof. Impugned Judgment is the subject-matter of the present Constitutional Petition (Petition), preferred by the, petitioner.
2. It was argued by the learned counsel for the petitioner that the II-ADJ did not appreciate the fact that the Rent Controller came to the conclusion after evidence that respondent No,1 could, not establish the relationship of landlord and tenant and, therefore, II-ADJ without any material being available with him could have not reversed the findings of the Rent Controller. It was also argued that there was an oral agreement between the petitioner and respondent No,1 with regard to the sale of the Flat and that the consideration of the Flat amounting to Rs,3,55,000 was paid by the petitioner to respondent No,1 in instalments from December, 1996 up to June, 1999 and that therefore, the petitioner is the owner in possession of the Flat.
3. I have perused the record. And find that after filing of the Rent Case, the petitioner for the first time asserted ownership of the Flat by filing Suit No 1051 of 2003 for specific performance and permanent injunction, (Civil Suit) which it seems, was dismissed by the 1st Senior Civil Judge, Karachi, Central vide judgment dated 29-10-2010, decree of which was prepared on or about 4-11- 2010. Appeal No,177 of 2010 after dismissal of the Civil Suit is pending adjudication before District Judge, Karachi, Central.
4. In above view of the matter it becomes abundantly clear that till the date of filing of the Civil Suit in 2003 and/or filing of Civil Appeal in 2010, the petitioner No,1 could not establish any title in. The Flat upon which the petitioner could have been taken to be its (Flat's) owner, thereby absolving her (petitioner) from making payment of the agreed rent of Rs,2,000 per month thereof (Flat). Unless and until the petitioner could establish her title in the Flat, which till date she has failed she would be deemed to be tenant thereof and all the terms and conditions of statutory tenancy, including payment of rent are applicable and she was bound under the law to make the payment of such rent of the Flat; and in default to face consequences, which amongst others include eviction, also.
5. The II-ADJ in Impugned Judgment's penultimate paragraph observed as under:-- - "The respondent/opponent through-but has taken the only plea that she paid sale consideration of Rs,3,55,000 in instalments within a period of 2 years from December, 1996 to June, 1999, as such she was neither the tenant of the appellant/applicant nor paid any monthly rent to the appellant/ applicant from April, 1998 onwards while admittedly the respondent/opponent was in possession of demised premises since December, 1996 without explaining in what capacity the respondent/opponent resided in the demised premises. Her claim that she resided in the demised premises in the capacity as owner of demised premises is not tenable as according to her, she made the final payment of sale consideration to Kaizar in May or June, 1999. As ahead observed above the relationship of landlord and tenant exists between the appellant/ applicant and the respondent!' opponent, as the respondent/ opponent has not admitted that she was in occupation of demised premises within the period she had not paid the alleged sale consideration from whom she claims to have purchased the demised premises".
6. From the above narration of events, it has become abundantly clear that as of day the petitioner could not establish her title/ownership in the Flat, absolving. Her from making payment of the rent.
There is yet another aspect of the matter. It is available on record that allegedly petitioner made payment of the sale consideration of the Flat of Rs,3,55,000 in instalments which according to petitioner's own showing commenced in December, 1996 and terminated in June, 1999. What prevented the petitioner from preferring suit for specific performance despite making payment of entire sale consideration of the Flat in June, 1999 is not known, which prima facie shows that such was not the arrangement. Only when Rent. Case was filed in 2003 by the respondent No,1 then the petitioner woke up from slumber and filed Civil Suit. This act of the petitioner by itself shows that there was no agreement for sale of the Flat, verbal or written and the defence for the sake of it was taken for the first time in 2003 when the Rent Case was filed. It goes without saying that mere agreement does not constitute any title in favour of the parties thereto for which a register conveyance deed is a must, which in the present case is admittedly not available with petitioner and/or was not brought on record.
7. Under these circumstances impugned judgment require no interference. Petition is, therefore, dismissed in limine along with other applications, however, with no order as to cost.