' SYED MUHAMMAD FAROOQ SHAH, J.---Petitioner assailed the concurrent findings of learned lower courts, whereby the ejectment sought by respondent No.1 from the case premises (R.A. 5 of 2010) on the ground of wilful default in payment of rent was allowed by order dated 17-5-2011, which was upheld by learned Appellate Court vide order dated 6-9-2011, passed in FRA 35 of 2011. Being aggrieved and dissatisfied by the impugned orders, mentioned above, the petitioner preferred the instant petition on the ground set out in the memo of petition.
2. Relevant facts necessary for disposal of instant petition are that respondent No.1 filed rent application that he owns Bungalow No.8/1 and 9/1 situated in Mir Hassanabad and before respondent No.1/applicant could occupy the bungalow after its construction, he decided to leave for USA, where he had his business interest. The respondent No.1 shifted to USA and let out the rented premises to the respondent No.2/opponent through rent agreement dated 1-7-2002, at a monthly rent of Rs.30,000 plus security deposit of Rs.90,000, refundable at the time of termination of tenancy. The tenant was required to pay monthly rent on or before 5th of each calendar month under receipt and all other utility charges within time. It was mutually agreed that connection of utilities be obtained by respondent No.2 and such installation charges shall be deducted from rent.
The opponent was requested to make payment of rent to the relative of respondent No.1 Shaukat Ali Khowaja against valid receipt who paid rent upto September, 2007 and thereafter committed default in payment of rent from October, 2007 to November, 2008 at the rate of Rs.30,000 per month and an amount of Rs.4,20,000 is outstanding against respondent No.2, when respondent No.1 visited Pakistan in May, 2008 he could not meet with the respondent No.2 and issued a notice dated 9-5-2008 through TCS, whereby the respondent No.2 was required to vacate the premises and hand over its vacant possession to respondent No.1 on the ground of wilful default. Thereafter, the respondent No.1 left for USA with a request to one Shaukat Ali Khawaja to pursue the matter of vacation of the rented premises and recovery of arrears of rent from October, 2007. It is stated that respondent No.1 when again returned back to Pakistan in November, 2008, he contacted the respondent No.2 in December, 2008 and a demand was made by him whereby the respondent No.2 was to pay all the rent arrears from October, 2007 and to vacate the rented premises, for which the respondent No.2 agreed to vacate the same by 12th December, 2008 and shall pay the arrears of rent. Thereafter, it is averred that respondent No.2 refused to vacate the bungalow and to pay the rent arrears but he admitted default from October, 2007 and stated that since he is retired and having short of money, would pay the arrears of rent, but he has not fulfilled his commitment hence a rent application for ejectment has been filed with the following prayer:-- "(A) To direct the opponent to vacate the Rented Premises bearing Bungalow No.8/A-9/A Mir Hassanabad Hyderabad and hand over vacant physical possession to the applicant together with the furniture, fittings and electric appliances forthwith.
(B) To direct the opponent to pay Rs.4,20,000 being arrear of rent from October, 2007 to November, 2008 to the applicant
(C) The cost be borne by opponent.
(D) Any other relief deemed just and proper be granted to applicant."
3. The learned Rent Controller after affording fair opportunity of hearing to both the parties allowed the rent application by order dated 17-5-2011. Against the order passed on rent application, it appears that Mst. Fakhrunisa (petitioner) who was not party in the rent proceedings has filed FRA No. 35 of 2011 and the learned Appellate Court by impugned order dated 6-9-2011 observed that the appellant Mst. Fakhrunisa has failed to establish her case of aggrieved person from the said order dated 17-5-2011 passed by learned Vth Senior Civil Judge/Rent Controller Hyderabad on application under section 15 of SRPO 1979 in Rent Application No. 5 of 2010 (re-Hassan Ali v. Taj Muhammad), therefore, FRA having no merits-for consideration was dismissed, hence Mst.
Fakhrunisa has filed the instant petition.
4. I have heard the learned counsel for the parties and perused the record.
5. It is an admitted fact that Mst. Fakhrunisa (petitioner) was the wife of respondent No.2/opponent and she during proceedings in rent application before the Civil Judge/Rent Controller Hyderabad moved the application under Order I, Rule 10, C.P.C. To implead her as opponent No.1 in the rent proceedings but the said application was dismissed on 3-9-2009, against the said order she filed the Constitution Petition S. 371 of 2009 before this Court, which was also dismissed with cost vide order dated 7-3-2011 and the order passed by Rent Controller was maintained with the observation that the petitioner is neither necessary nor proper party in the rent proceedings, pending between the landlord and the tenant, calls for no interference by this court in the petition which was dismissed with cost. Earlier order passed in Constitution Petition No.371 of 2009 on dated 7-3-2011 has attained finality, whereby it, was observed by the learned Single Judge of this Court that from the contentions of the parties it appears that previously the petitioner Mst. Fakhurnisa was living as wife of respondent No.2 Taj Muhammad in the house in question (rented premises) and their children were also living together within the same house but ultimately on account of disputes between them they started living separately and the divorce said to have taken place between them in the year 2008. The petitioner claims to be the owner of the house in question and for this purpose she has also filed a suit for declaration in respect of her title over such property in the year 2010 while rent proceedings were pending since 2008, in which she moved an application under Order I Rule 10(2), C.P.C. In the year 2009, for impleading her as, opponent No.2 but the same has been dismissed, which order has been maintained by this court.
6. Mr. Arshad Pathan, representing the petitioner, contended that while deciding First Rent Appeal, the learned Appellate Court did not consider the merits and the petitioner has not afforded fair opportunity of hearing. So far as pendency of civil proceedings are concerned, the learned counsel submitted that suit filed by the petitioner has already been culminated in dismissal and appeal against that order is pending before learned Appellate Court. The learned counsel contended that the title documents of the petitioner have not been considered at any forum, which is gross injustice.
7. Conversery, Mr. Naimatullah Soomro at the very outset contended that there is no illegality, gross irregularity or-infirmity in the impugned order passed by learned lower courts and submitted that default in payment of rent has been admitted by the respondent No.2 against which the opponent/tenant did not file any appeal and the appeal filed by the petitioner before learned Appellate Court was not maintainable, particularly she was not declared owner/landlord of the property and has rightly been not considered an aggrieved person. It is further contended that jurisdiction under Article 199 of the Constitution cannot be invoked as substitute of another appeal against the order of Appellate court, therefore, the petition is not maintainable. It is next contended that by conferring the right of Appeal under section 21 of the Ordinance, the legislature in its wisdom seems to have tried to shorten the span of litigation in rent cases. In such circumstances, interference by High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution in judicial orders, passed by tribunals merely on the ground that another "view of the matter is also possible, would not serve any other purpose but would add to misery of the parties.
In support of his contention, the learned counsel placed reliance on the cases of Shakeel Ahmed v.
Muhammad Tariq Farrogh (2010 SCM R 1925) and Messrs Mehraj Limited v. Miss. Laima Saeed (2003 M LD 1033). While placing reliance on the case of Raza Hussain v. District Judge Vehari (1986 SCM R 1267) learned counsel argued that a Full Bench of Apex Court held that "petitioner wanted to be impleaded as party before Rent Controller not in capacity of a tenant or one deriving interest or title from tenant but as owner of cc sharer of the property on basis of such status petitioner would not get himself impleaded in proceedings before Rent Controller, which was confined to landlord and tenant and those deriving interest from them petitioner was however, at liberty to get his title and interest in property determined in accordance with law". In another Division Bench citation reported as PLD 2009 SC 546, in the case of Syed Imran Ahmed v. Bilal and others it was held that a sale agreement did not itself create any interest or even a charge on the property in dispute. Till such time that a person suing for ownership of property obtained a decree for specific performance in his favour, such a person could not be heard to deny a title of landlord or to deprive the landlord of any benefits accruing to him or arising out of the property which was the subject-matter of the litigation. Their lordships observed that, "postponing the ejectment proceedings to wait the final outcome of a suit for specific performance would be causing serious prejudice to a landlord and such a practice if approved by Supreme Court, would only give a license to unscrupulous tenants to defeat the interest of landlord who may be filing suits for specific performance only to delay the inevitable consequences and to throw spanners in the wheels of law and justice". In the case of Muhammad Azam and another v. Muhammad Akram (2008 SCM R 1034), the dicta as laid down by the Honourable Apex Court is that, "plea of tenant was that after agreement to sale, his possession over premises was no longer as tenant but as owner thereof, thus, he could not be evicted there from till final decision of his suit. Such plea was repealed concurrently by two lower Appellate Courts. Supreme Court upheld ejectment order and dismissed the petition and refused leave to appeal".
8. Whatever mentioned above, in light of the rulings discussed supra, I reached at the irresistible conclusion that no case for interference in the concurrent findings of facts recorded by the two courts below is thus made out. The petitioner was having no locus standi whatsoever to file an appeal against the ejectment order passed on 17-5-2011, by the learned Rent Controller which order has been admittedly not assailed by both the parties contesting the rent proceedings but the petitioner claiming herself to be owner filed the First Rent Appeal, which has rightly been dismissed by the learned Lower Appellate Court by impugned order dated 6-9-2011. Suffice is to say that the petition is not maintainable in law and facts, which is hereby dismissed with cost. The learned Rent Controller may proceed with the execution application, if filed or pending, strictly in accordance with law.
9. Captioned petition is disposed of in the above terms.