' MUHAMMAD TASNIM, J.---The petitioner being aggrieved against the judgment dated 18-2-2010 passed-by learned Vth Additional District Judge, Karachi East in F.R.A. No,36 of 2009, judgment dated 21-12-2006 passed by the learned IXth Rent Controller Karachi East in ejectment application filed by respondent No,1 under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called as "the Ordinance") and the orders dated 23-1-2009 and 14-2-2010 passed in execution proceedings No,5 of 2007.
2. Brief facts leading to this petition are summarized as under:--
3. The respondent No, 1 filed a ejectment application under section 15 of the Ordinance on the grounds of default in payment of rent and personal bona fide need against respondents Nos.2 and
3. It appears that such ejectment application was contested by respondents Nos. 2 and 3 by filing their written statements and subsequently the ejectment application was allowed. Respondents Nos.2 and 3 felt themselves aggrieved against the order passed by the learned Rent Controller ordering their ejectment from the case premises have filed an appeal being F.R.A. No,13 of 2007 before the learned District Judge, Karachi East who dismissed the same on 25-7-2007. Accordingly execution application No,5 of 2007 was filed by respondent No,1 before the learned IXth Rent Controller Karachi East. It further appears that the petitioner filed an application under section 12(2), C.P.C. Before the learned Rent Controller on 24-8-2007, such application was heard and dismissed by the learned Rent Controller per order dated 23-1-2009. The petitioner felt himself aggrieved against the said order has filed F.R.A. No,36 of 2009 which was heard by the learned Vth Additional District Judge, Karachi East, who dismissed the same vide his judgment dated 18-2-2010.
Thereafter present petition was filed.
4. Mr. S.M. Ishrat Ghazali, learned counsel for the petitioner has argued that respondent No,1 with mala fide intention and with ulterior motives did not join the petitioner as party to the proceedings in the ejectment application filed by respondent No,1 before the learned Rent Controller. He says that ejectment order has been obtained by respondent No,1 in connivance with respondents Nos.2 and 3 though the petitioner is the real tenant and he was not heard. Learned counsel has also submitted that respondent No,1 is neither landlord of the premises nor he is owner of the same, hence he has no jurisdiction to file the ejectment application before the learned Rent Controller for seeking ejectment of the tenant from the case premises. Learned counsel says that all the orders impugned in the petition be set aside, case may be remanded to the learned Rent Controller to provide opportunity to the present petitioner to present his case and thereafter judgment be passed in accordance with law. In support of his contention learned counsel has placed reliance on the following cases:--
(i) Case of Faqir Muhammad v. Muhammad Sharif (1991 MLD 1578).
(ii) Case of Mst. Rashida Begum v. Mazhar Iqbal (1983 CLC Karachi 380).
(iii) Case of Nadeem Ahmed Mirza v. Mrs. Shah Sultana Begum and another (PLD 1994 Karachi 177):
(iv) Case of Abdul Hamid v. Ghulam Samdani (1991 CLC 773 (Lahore)).
(v) Case of Waheedullah Khan and 2 others v. Muhammad Hanif and 2 others (1989SCMR 2042).
(vi) Case of Munir Ahmed v. Bara Khan (1990 SCMR 973).
(vii) Case of Tanveer Jamshed and another v. Raja Ghulam Haider (1992 SCMR 917).
(viii) Case of Fazal Baqi and another v. Rehmatullah (1995 MLD 303 (Peshawar)).
(ix) Case of Shaukat Javed v. Sh. Abdul Khaliq and 2 others (1991 SCMR 215).
(x) Case of Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064).
(xi) Case of Inayatullah Butt v. Umar Hayat Khan and 2 others (1994 CLC 1323 (Lahore)).
(xii) Khalid Mahmud and 6 others v. Maqbul Mahmood Bajwa, Additional District Judge, Sialkot and another (1999 MLD 1607 (Lahore)).
5. Conversely Mr. Malik Muhammad Riaz, learned counsel for respondent No,1 has. Submitted that the petitioner is an stranger and the respondent No,1 has purchased the property from the Bank in pursuance to the order passed by the High Court in Suit No,734 of 1985 in execution proceedings No,16/94. He has invited my attention to the sale deed executed by Union Bank in favour of respondent No,
1. Learned counsel further submitted that after purchase of the aforesaid property respondent No,1 served a notice under section 18 of the Ordinance upon respondents Nos.2 and 3 which was followed by a legal notice dated 26-2-2004. He further says that since rent was not paid, ejectment proceedings were initiated against respondents Nos.2 and 3. Learned counsel submitted that judgment passed by the learned Rent Controller was challenged by respondents Nos.2 and 3 but since the appeal filed by respondents Nos.2 and 3 has been dismissed the findings recorded by the learned Rent Controller attained the finality. Learned counsel says that the application filed by the petitioner under section 12(2), C.P.C. Was rightly dismissed by the learned Rent Controller, so also by the appellate Court. He further submitted that both the orders passed by the learned Rent Controller on the application under section 12(2), C.P.C. And judgment passed by the learned appellate Court have been passed strictly in accordance with law, hence no interference is called for. In support of his contention learned counsel has placed reliance on the following cases:--
(i) Case of Dr. Ubaidur Raza Khan v. Mrs. Saghera Bano and another (1994 CLC 1302 (Karachi)).
(ii) Case of Muhammad Saqlain and others v. Ali Husnain Qadir and others (1987 CLC 2008 (Lahore)).
(iii) Case of Government of Sindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197).
(iv) Case of Muhammad Rafiq Butt v. Islamic Republic of Pakistan and others (1992 ALD, 470(2)
(Lahore)).
(v) Case of Rab Nawaz and 2 others v. Shahnawaz Khan and 4 others (PLD 1988 Lahore 492).
6. I have heard the arguments of learned counsel for the parties and perused the record.
7. Now taking up the first submission of learned counsel for the petitioner that he was not joined as party to the proceedings, it will be noticed that claim of the petitioner is based on an agreement dated 21-7-2003 executed between one Muhammad Ahmed and the present petitioner, which is titled as "SALE AGREEMENT/ GOODWILL" two of the clauses of such agreement are reproduced as under:-- "AND NOW WHEREAS the First Party has agreed to transfer/sale its tenancy and ownership rights of Good Will and the possession with effect from 21st July 2003 to the party of the Second Part forever and today both the parties are agreed with their mutual consent to declare the sale consideration/good will amount towards the said flat a Rs,I0,00,000 (Rupees Ten Lac only) with the permission/NOC of the said owner/landlord namely Feroz N'Dosa son of Noroz Ali, on the following terms and conditions as mentioned below:-
(1) That the Second Party has paid the said sum/worth of Rs,10,00,000 (Rupees Ten Lac only) in cash as sale consideration/goodwill amount in respect of possessory and ownership rights which was obtained by way of good will by bringing the same in the knowledge of the landlord of the said property."
8. A perusal of the above quoted clauses of the agreement shows that parties to the agreement have agreed to transfer/sale its tenancy and ownership right of goodwill and the possession with effect from 21st July 2003 by the First Party to the Second Party forever and parties to the agreement further agreed to declare the sale consideration/goodwill amount towards the said flat at the rate, of Rs,10,00,000 (Rupees Ten Lac only) but no document conveying the said flat to the present petitioner has been brought on record. On the contrary if record is examined it will be seen that the High Court on 12-9-2002 in Suit No,734 of 1985 in execution application No,16 of 1994 has ordered as under:-- "The bank has sold the property of the judgment debtor, which has been purchased by auction purchaser, who has deposited the balance sale consideration with the Nazir of this Court in terms of order dated 26-6-2002. The bank is allowed to execute the sale deed in favour of the purchaser. After execution of the sale deed, the decree holder (bank) is allowed to withdraw the amount deposited by the purchaser with the Nazir of this Court."
9. A perusal of the above quoted order shows that the Bank had sold the property of the judgment debtor which has been purchased by auction purchaser (respondent No,1) who has deposited the balance sale consideration with the Nazir of this Court in terms of order dated 26-6-2002 and the Bank was allowed to execute the sale deed in favour of the purchaser (respondent No,1). After execution of the sale deed the Bank was allowed to withdraw the amount deposited by respondent No,1 with the Nazir of this court. In compliance of aforesaid order Union Bank has executed a registered sale deed dated 12-3-2003 transferring 22.06 undivided share in piece and parcel of land bearing Plot Nos.21 and 22, Block-A, Sub-Block-'C' situated at Sindhi Muslim Cooperative Housing Society, Strachan Quarters, Karachi for a term of 99 years commencing from the date of original lease, upon which residential flat premises bearing No,8, located at third floor, measuring 50.52 square yards, equal to 454.75 square feet or thereabout. After transfer of above property in the name of respondent No, 1 he served a notice under section 18 of the Ordinance followed by a legal notice and when rent was not paid by respondent No,2 the ejectment proceedings on the grounds of default in payment of rent and personal bona fide need were initiated by respondent No,1 against respondents Nos.2 and 3. Such proceedings were contested by respondents Nos.2 and 3, however the learned Rent Controller has finally granted the ejectment application. After passing the order by learned Rent Controller respondents Nos.2 and 3 filed an appeal which also came to be dismissed. Since at the time of purchase of the property the sitting tenant was respondent No,2, accordingly notice under section 18 of the Ordinance was served upon him and further proceedings in accordance with law were drawn. The petitioner was not in picture, hence in the circumstances of the case question of joining him as party in the rent proceedings does not arise.
10. The next contention of the learned counsel for the petitioner that ejectment order was obtained by respondent No,1 in connivance with respondents Nos.2 and 3 is also not tenable for the reasons mentioned herein above. The rent proceedings were hotly contested by respondents Nos.2 and 3 and after passing the ejectment order they questioned the same before the Appellate Court and their appeal was finally dismissed
11. The next contention of the learned counsel for the petitioner that respondent No,1 was neither landlord of the premises nor he was owner of the same, hence he had no authority to file the ejectment application for seeking ejectment of the tenant from the case premises. It will be seen from the record that under the orders of the Court the property in question was purchased by respondent No,1 through Court and under the orders of the Court Bank had conveyed the property through registered instrument and thereafter notice of change of ownership under section 18 of the Ordinance was served upon the sitting tenant. Since respondent No,1 had purchased the property under a registered instrument, hence he was owner of the property and landlord of the tenant under occupation of the flat in dispute at that time.
12. The judgments cited by learned counsel for the petitioner are distinguishable on facts with the present case and do not advance the case of the petitioner. Even otherwise it is settled legal position that in constitutional jurisdiction question of fact and question of title cannot be resolved, such question can be resolved in a regular suit in which after recording evidence of the parties Civil Court can record its findings in this respect. The order of ejectment passed by the learned Rent Controller affecting the petitioner adversely or with regard to the title of the property, such question cannot be decided in a constitutional petition. Even otherwise learned counsel for the petitioner has failed to point out any jurisdictional defect in the proceedings before the learned Rent Controller or misrepresentation of facts or any fraud played by respondent No,
1. Perusal of the orders passed by the learned Rent Controller and the learned Appellate Court shows that all the aspects of the case have been noted and the Courts below have dealt with the matter strictly in accordance with law.
13. For the foregoing reasons I find no merits in the petition which is accordingly dismissed with no order as to costs.