' ABDUL RASOOL MEMON, J.- This Constitutional Petition has been directed against the Judgment dated 26-4-2012 passed by the learned Vth Additional District Judge Karachi East whereby the appeal filed by the appellant was dismissed and the order passed by the learned IXth Senior Civil Judge and Rent Controller dated 12-10-2009 was maintained with the direction to the appellant to hand over the vacant possession of the demised premises to the respondent within 60 days from the date of order of the Rent Controller.
2. Facts forming the background of this Constitutional Petition are that the respondent No,l filed an ejectment application against the present petitioner under section 15 of the Sindh Rented Premises Ordinance, 1979 stating therein [that he is son of Shaikh Muhammad Sharif as well as landlord of Shop No,S-2, Noman Plaza, Rashid MinhaS Road, Karachi. His father died on 20-1 -2002 and the petitioner (herein) had entered into the agreement of tenancy dated 1-9-1998 with his father during his life on monthly rent of Rs,5,500/- which was to be paid through Bank A/C of landlord bearing No, 1122, ABL Bank on monthly basis in advance and the petitioner paid the rent to his father till his death.
3. It is also a case of the respondent No,l that prior to it, one Barkat Ahmed Zubi was the tenant in the said premises who used the same premises for one. Year.'It is further stated that petitioner Wasi-ud- Din started paying the rent to the respondent after the death of his father some time in cash and some time through cheque or directly depositing in the Account of the respondent till December, 2005. It is also a case of the respondent that on 1-1-2004 tenancy was renewed and the rent was enhanced and fixed at Rs,6,000/- per month. The respondent has also pleaded that he and his father used to issue rent receipt to the petitioner and thereafter since December, 2005 the petitioner has committed wilful default in payment of monthly rent.
4. He has further stated that the petitioner started malicious litigation by sending unwarranted legal notices and subsequently filed Civil Suit bearing No,800 of 2000 in respect of the demised premises wherein the respondent, has filed the written statement. He has also taken the plea for requirement of the said premises for his personal bona fide need to expand his own business.
5. The present petitioner has opposed the ejectment application by filing his written statement. He has denied that he entered into the agreement of tenancy dated 1-9-1998 with the respondent's father on monthly rent of Rs,5,500/- and has taken the plea that father of the respondent executed the Agreement and goodwill tenancy with him on 20-1-1993 and also executed the receipt and the monthly rent was fixed at Rs,750/-. It is the case of the petitioner that in the month of December, 2005 the agreement of sale was executed between him and the respondent No, l in respect of demised premises whereby with adjustment of Rs,500,000/- also paid Rs,600,000/- to the respondent and thereafter the status of the petitioner has been changed and converted into the landlord and then the relationship of landlord and tenant was ceased to exist more.
6. The petitioner and the respondent No,1 have filed their affidavits-in-evidence before the learned Rent Controller and produced certain documents. The Rent Controller framed following points for determination:-
(1) Whether there exists a relationship of landlord and tenant between the parties?
(2) What should the order be?
7. The learned Rent Controller after recording the evidence of the parties reached to the conclusion that relationship of landlord and tenant did exist between the parties. And that the petitioner has committed wilful default in payment of rent since December, 2005 and thereby directed him to vacate the demised premises within' 60 days vide order dated 12-10-20C9. The appeal filed by the petitioner was also dismissed by the learned Vth Additional District Judge Karachi. Against both these orders the petitioner has filed this Constitutional Petition.
8. Learned counsel for the petitioner has argued that the learned Rent Controller did not appreciate the evidence of the petitioner wherein he has denied the relationship of landlord and tenant with the respondent No,l. He further adds that the petitioner has purchased the said premises through- the valid agreement from the respondent No,l but the Rent Controller did not give any finding in respect of-the said agreement. He further adds that after execution of sale agreement in 2005 in respect of demised premises after adjustment of Rs,500,000/- and payment of Rs,600,000/- the petitioner is absolute owner of the premises, hence the orders passed by the Rent Controller as well as Appellate Court are erroneous and contrary to law.
9. Learned counsel for the respondent No,l has contended that the relationship of landlord and tenant though was tecnnically denied by the petitioner but in his cross-examination during trial proceedings he in clear terms has admitted the respondent No,l to be landlord of the demised premises and also admitted that he had not paid rent to the respondent since December, 2005. It is vigorously urged that the agreement of sale in question has been denied by the respondent No,l on the basis of which the petitioner claims himself to be owner of demised premises. He further adds that in the year 2007 the petitioner filed the Suit bearing No,800 of 2007 for "Permanent Injunction" in the court of Civil Judge in respect of the demised premises wherein he did not disclose the existence of sale agreement, therefore, under the law of estoppel he is estopped from raising said plea at this stage. Moreover, no suit for specific performance of contract has been filed by the petitioner till yet in respect of demised premises. He has contended that the orders passed by the Rent Controller and Appellate Court are in accordance with law, facts and it is not a fit case for interference in exercise of instant petition. '
40-. I have considered the submissions made by the learned counsel for the parties. Admittedly, the respondent No, 1 is owner of the demised premises and petitioner. Is in possession thereof since 1-9-1998. It is admitted fact on record that the petitioner has denied the relationship of landlord and tenant in his written statement as well as in counter- affidavit, therefore, a preliminary issue was framed by the learned Rent Controller and parties were directed to lead their respective evidence. The petitioner has filed his affidavit-in-evidence and claimed therein that father of the respondent No,l had entered into the agreement of goodwill and rent of the premises was fixed at Rs,750/- and further pleaded that in the month of December, 2005 the agreement of sale was executed between the parties and he paid Rs,600,000/- to the respondent No,1 and adjusted Rs,500,000/-already paid.
10. It is worthwhile to note here that the sale agreement does not confer any title on the tenant unless the same was determined by the court of competent jurisdiction. In this regard reliance can be placed on the case of Mst. Bor Bibi and others v. Abdul Qadir (1996 SCMR 877). Besides this, such agreement to sell would not authorize non-payment of rent by a tenant from the date of entering into the agreement as held in a case of Khawaja Amir Hussain v. Muhammad Shabbiruddin Khan (PLD 1986 Karachi 74). l2. It is an admitted fact on record that the petitioner did not file any suit for specific performance of contract in respect of demised premises as affirmed by the learned counsel for the petitioner very- candidly on a Court query during the course of arguments. Moreover, the petitioner Wasiuddin in his cross-examination has .Admitted in clear terms that in Suit No,800 of 2007 filed by him in respect of demised premises it is mentioned in the title of the suit that he is tenant of the Shop No,2, hence once a person acknowledges himself to be a tenant of a landlord, the. Principle of estoppel as enunciated in Article 115 of "Qanun-e-Shahadai" 1984 would immediately come into play and thereby the petitioner is debarred from denying such title as a "tenant".
13. It is now well-settled principle of law that if the tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in question and then contest his proprietary rights in the property and ultimately if he succeeds in'getting relief from the court and decree is passed in his favour then he can enforce the same according to law with all his consequences. In this regard reliance is placed on a case-law of Barkat Masih v. Manzoor Ahmed (2006 SCMR 1068).
14. In view of the fact that there is clear admission on the part of the petitioner during trial proceedings, to the effect of admitting the relationship of landlord and tenant in his cross- examination, hence the admitted fact need not be proved as provided under Article 113 of Qanun- e-Shahadat Order, 1984. The agreement of sale would not authorize non-payment of rent by the tenant from the date of entering into the agreement, this dictum is laid down in the case of Khawaja Amir Hussain supra.
15. In view of above discussion, I am of the opinion that finding rendered by the Rent Controller is not barred by any law and the appellate court after appreciating the evidence of parties has passed its finding on legitimate conclusion on the has is of admission of the petitioner in evidence regarding existence of relationship of landlord and tenant and so also default in payment of rent since December, 2005.
I6. Moreover, interference of this court of extraordinary jurisdiction can only be made when the glaring misreading or non-reading of any material floats on the file which fact is unfortunately missing in the instant case. Learned counsel for the petitioner has also failed to point out any misreading or non-reading of any evidence or any irregularity committed by both the courts below. Further the impugned orders/judgments are based on admitted facts and no exception can be made to the same.
17. For the foregoing reasons, I find no merit in this Constitutional Petition, which is hereby dismissed with no order as to cost.