' SALMAN HAMID, J.--By this petition, the petitioner has questioned concurrent findings of the two courts below.
2. The facts of the case are that the petitioner along with one Abdullah, son of Haji Abdullah is a co- owner/transferee of a building on Plot No, GK B-13(11/374), Juma Masjid Wali Gali, Ahmed Shah Bukhari Road, Joona Kalri, Karachi, (Building). Respondent No,1 is a tenant in the Building of Flat No,7, 4th Floor, (Flat). The petitioner served a notice dated 4-8-2007 on the respondent No,1 wherein it was mentioned that Building vide registered conveyance deed dated 10-5-2000, Registration No,733 of Sub-Registrar T Division VI-A Karachi (Conveyance Deed) from its previous owner, Ali Muhammad has been purchased and that Respondent No,1 having defaulted in payment of rent of the Flat since May, 2000 till the date of the Notice and has also sub-let the Flat, vacate the same.
3. Rent Case No,529 of 2008 (Rent Case) followed thereafter, which was contested by respondent No,1 by altogether denying relationship of landlord and tenant and by further asserting that the previous owner of the Building, Ali Muhammad, sold the Flat to his mother-in-law, Mst. Zulekha Bai, who on her turn gifted the Flat to her daughter Mst. Sakina Bai, the wife of respondent No,
1. The III- Senior Civil Judge a Rent Controller, Karachi, South, after evidence of the parties i,e, petitioner and respondent No,1, in terms of Order' dated 12-9-2009, (Order) dismissed the Rent Case; holding that the petitioner was not the landlord of respondent No,
1. The petitioner preferred First Rent Appeal No,309 of 2009, (FRA) against the Order, which too was dismissed by the VII-Additional District Judge Karachi South (VII-ADJ) in terms of judgment dated 26-4-2010, upholding the Order.
4. It was argued by learned counsel for the petitioner that both the courts below absolutely erred in appreciating the fact that the petitioner became owner of the Building together with the Flat in terms of Conveyance Deed and that such Conveyance Deed was also exhibited as A/1. Notice dated 4-8-2007 (Exhibit A/3) was sent before filing the Rent Case on the grounds of default subletting in which notice it was mentioned that the Building/Flat was purchased by him from its previous owner, Ali. Muhammad vide Conveyance Deed. The two courts, it was asserted, despite title of the petitioner in the Building came to a wrong conclusion that the petitioner was not the owner of the Building by merely assuming that the Petitioner did not file any receipt or rent agreement to prove relationship of tenant and landlord without appreciating that it was not possible inasmuch as in notice dated 4-8-2007 (Ex. A/3), it was clearly mentioned in paragraph 3 thereof that the respondent No,1 from 1-5-2000 failed to make payment of rent altogether and therefore the question of rent receipt and/or agreement did not arise.
5. After filing this petition on or about 1-6-2010 it came up for orders and for katcha peshi on 20-8- 2010 when notice was ordered to respondent No,1 through all modes, including courier and pasting.
On 16-9-2010 Mr. Shahzad Ahmed, Advocate filed Vakalatnama on behalf of respondent No,1 and requested for time to file. Objections. Time was granted and the learned counsel for respondent No,1 was also directed to provide advance copy of objection/comments to learned counsel for the petitioner. Petition was adjourned to 13-10-2010 on which date learned counsel for respondent No,1 requested for further time to file objections which was allowed and the hearing of the petition was adjourned to 10-11-2010 on which date learned counsel for respondent No,1 was not in attendance and the matter was adjourned to a date in office. It again came up for katcha peshi on 9-12-2010 when the learned counsel for respondent No,1 left a chit that he is unwell. Learned counsel for the petitioner was in attendance. The petition again came up for Katcha peshi on 28-1-2011 when no one was present and it was adjourned to a date in office and was fixed again on 28-3-2010 for same purpose. Learned counsel for petitioner was present but none was present on behalf of respondent No,1 and in interest of justice hearing of the petition was adjourned to 11-4-2011 on which date again respondent No,1 was called absent without intimation. Learned counsel for the petitioner was present and in the interest of justice hearing of the petition was adjourned to 27-4- 2011 on 'which date learned counsel for the petitioner was present and again despite last chance, none was present on behalf of respondent No,1 and resultantly on the request of the learned counsel for the petitioner matter was adjourned to 12-5-2011. Petition again came up for katcha peshi on 2-6-2011 when again, as usual, none was present on behalf of respondent No,1 but learned counsel for the petitioner was in attendance and again in the interest of justice the petition was adjourned to a date in office and it came up on 10-10-2011. Learned counsel for respondent No,1 was again called absent and the learned counsel for petitioner insisted that since very short point is involved the petition may be heard as early as possible at katcha peshi stage and be disposed of accordingly and the matter was adjourned to 25-10-2011. It came up for Katcha peshi on 25-11-2011 when again learned counsel for respondent No,1 was not in attendance and learned counsel for petitioner was present and insisted that record of the file would depict that learned counsel for respondent No,1 is not appearing in the case, therefore, learned counsel for respondent No,1 was directed to remain present in court on adjourned date with an observation that if he is called absent on adjourned date, petition would be heard and decided in his absence. Petition was adjourned to 22-12-2011 i,e, today. Again when this matter was taken up for hearing at Katcha peshi stage for its decision at this level, as was observed on 10-10-2011, the learned counsel for respondent No,1 was again called absent. Resultantly the petition was heard in his absence and was allowed for reasons to follow during course of the day. After hearing of the petition and its grant, an application for condonation.Of absence/late coming was moved by the learned counsel for respondent No,1, wherein it was mentioned that he could not reach in time to argue the case inasmuch as he slept, late due to illness of his wife and therefore he got up late with the result he reached late. It was requested by the learned counsel for respondent No,1 that a last chance may be given to him for arguments without appreciating the fact that by the time application for condonation of delay was filed, petition was already heard and decided in favour of the petitioner and reasons were to follow during course of the day. The record of the file would also show that till date no objections whatsoever to the petition, had been filed by respondent No, I though at least on couple of occasions time for the, same had been sought. The conduct of the respondent No, 1.
And/or his counsel need no further elucidation.
6. File of the Case would show that the petitioner acquired title in the Building/ Flat through Conveyance Deed and upon such Conveyance Deed, the petitioner became owner of the Building/Flat and therefore he became entitled to the benefits thereof which also ihcludes rents from its various tenants, including the rent of the Flat. It also came on record that the respondent No,1 was served with a Notice dated 4-8-2007 wherein it was specifically mentioned, that the Building/Flat has been conveyed to him through Conveyance Deed and that the respondent No,1 since May, 2000 till the date of the Notice failed to make payment of rent of the Flat and that he also sublet the Flat. If for any reason, the respondent No,1 was not aware of the change of ownership, after Notice of 4-8-2007 such change came to the knowledge of respondent No,1 and thereafter the respondent No,1 was duty bound to tender rent to the petitioner, which the record of the file shows was not tendered. Even if it is presumed that the Notice dated 4-8-2007 was not received by the respondent No,1, though it was sent through registered post A/D and receipt is also available on the record of the file, filing of Rent Case itself was a notice enough for the respondent No,1 for tender of the rent, of the Flat but the record shows that despite contesting the Rent Case, it was not tendered on the ground that the Flat was gifted by respondent No,1 's mother-in-law to her daughter (respondent No,1's wife) and therefore the question of payment of rent of the Flat to the petitioner was out of question.
7. It may be noted that though it was claimed by the respondent No,1 that the Flat was purchased by mother-in-law of respondent No,1 and/or mother of respondent No,l's wife, nothing was brought on record by respondent No,1 to show that his, mother-in-taw had a marketable title in the Flat which could have entitled her to have gifted the same to her daughter/wife of respondent No, 1.
Exhibit 0/3 available on record of the file is a purported declaration of gift purportedly made by mother-in-law of respondent No,1 on or about 21-1-2006. Even if for the sake of argument it is presumed that such declaration of gift was real and correct, though it was not and it is an unregistered document, it would be evident that the respondent No, l's wife became purported owner of the Flat by virtue of such declaration of gift; at best on 211-2006 inasmuch as it is nowhere disclosed in the declaration of oral gift as to on which date mother-in-law of respondent No,1 had gifted the flat to the wife of respondent No,
1. On this score as well, 'the respondent No,1 is deemed to be .a defaulter inasmuch he failed to bring on record any receipt to show that the rent was paid by him and/or his mother-in-law to Ali Muhammad, the previous owner of the Building and the Flat.
8. It is a well-settled principle of law that a registered document in itself is a notice to public in general/at large and upon coming into being of Conveyance Deed on 10-5-2000, in law, it Was deemed that the respondent No,1 was in knowledge of change of ownership. It may be noted that in the cross-examination of respondent No,1, it was admitted by him that no document regarding purchase of Flat by his mother-in-law was produced and/or-brought on record. There were material contradictions in his cross-examination in that he stated and -that too voluntarily that the Flat was gifted to him by his mother-in-law though it was the claim of the respondent No,1 that his mother-in-law gifted the Flat to her daughter his No,1 wife. It was also admitted by respondent No,1 that original gift deed was not brought on record and it was also admitted by him that the photocopy of gift deed that was brought on record was not a registered document and that affidavit of his mother-in-law to the effect that a gift was made was not produced. It was also admitted by respondent No,1 that PT of the Building was in the name of Ali Muhammad petitioner purchased the Building from Ali Muhammad.
9. All these glaring aspects of the case had been ignored and/or overlooked and not considered at all by the two courts below and their decisions were based on non-appreciation and/or misreading and non-reading of evidence altogether. In a given case High Court in exercise of its jurisdiction under Article 199 of the Constitution can entertain if wrong or illegal conclusion was drawn by the courts below and are not based on facts found as such an act would amount to an error of law which can always be corrected by High Court. Therefore, order and judgment of the two courts below were set aside and the petitioner was allowed in the morning, reasons whereof are these.