' MUHAMMAD SHAFI SIDDIQUI, J.---Petitioners have challenged the concurrent findings of two Courts below in terms whereof the Rent Application under section 15 of the Sindh Rented Premises Ordinance, 1979 was dismissed. The application was preferred on two grounds i.e, on default and personal requirement. Notice of the ejectment application was served upon the respondents and they filed their written statements and accordingly the matter proceeded. The petitioners filed affidavit-in-evidence of one Balchand and Pardeep Kumar; and from the respondent's side Umesh Kumar and Aneel Kumar and Amar Lal filed their affidavitin-evidence in support of their respective contention.
2. It is the case of the petitioners that they have purchased this property from respondent No,1, vide agreement of sale dated 27-8-2005, in the sum of Rs,1,700,000, out of which amount of Rs,100,000 was paid in advance while remaining amount of Rs,1,600,000 were to be paid by the petitioners on 2-4-2006. It is contended that they offered said amount on 2-4-2006, but the respondent No,1 requested for certain period as he has to construct another house, before which he could vacate.
Out of balance of Rs,1600,000, respondent No,1 requested for payment of Rs,1200,000, which was accordingly paid by the petitioners and in return respondent No,1 executed registered sale-deed on 12-6-2006. The city survey record of the subject premises bearing C.S. No,12/558 was duly mutated in favour of the petitioners. Subsequent to this mutation since possession of the premises was not handed over as aforesaid an agreement in shape of Qabooliyat was executed on 10-8- 2006, between petitioners and the respondent No,l. Learned counsel submits that since the respondents have failed to tender the rent and also that the demised premises was required in good faith by petitioner No, 4, the Rent Application No,1 of 2009, was filed before Rent Controller/ Senior Civil Judge, Shikarpur, on the ground of default and personal requirement. It is contended by the leaned counsel for the petitioners that after the registration of the sale-deed on 12-6-2006, the relationship between the petitioners and respondent No,1 was established and particularly when an agreement in the shape of Qabooliyat was executed on 10-8-2006. The salient features of the said Qabooliyat, which is available at page 195, as translated by petitioners are as under:-- "I, Jurio Mal son of Ayo Mal, resident of Bhitai Bazar, Shikarpur, do hereby state in writing in full senses and consent without any compulsion that on 27-8-2005, I have sold out my purchased house bearing C.S. No,12/558, total area 194.3 square yards in presence of below witnesses to following four purchasers. The price of said house has been settled as Rs,1700,000 (In words Rupees seventeen lacs).
"I, Balchand son of Alamchand, resident of Kandhkot,
2. Baboo Jai Kumar son of Pehlaj Dass, resident of District Sibi,
3. Nanik Ram son of late Narain Dass, Shikarpur,
4. Saryapal son of Kishor Mal, Jacobabad Names of purchasers.
' And such Qabuliat in writing was also given by me to purchases on 27-8-2005, and as per that Qabuliat the purchasers had given me Rs,100,000 (one lac), in advance and the remaining amount Rs,1600,000 (sixteen lacs) were to be paid by the purchasers on 2-4-2006. The purchasers had offered the remaining amount of Rs,16,00,000 (sixteen lacs) on 2-4-2006, and requested to hand over the possession of house and to execute registered sale-deed, on which I requested the purchasers that my house is under construction in the Muhalla of Doctor Bhagat Kumar, for which certain time is required and for that I am in need of some amount, as such I requested the purchases to pay Rs,12,00,000 to me out of the remaining amount of Rs,1600,000 so that I may be also to construct my house, as such on 12-6-2006, the purchasers in presence of following witnesses have paid Rs,1200,000 to me and in turn I got changed the Khata of the house in the names of purchasers in presence of below witnesses on 12-6-2006, and remaining amount of Rs,400,000 shall be paid at the time of handing over possession on 30-1-2007, and the terms and conditions for handing over possession are as under:--
(a) If, I vendor Jurio Mal would not deliver the possession of premises on 30-1-2007, then the remaining amount of sale consideration i.e, Rs,400,000 would be deemed to be forfeited.
(b) If, I vendor Jurio Mal is delivering the possession of premises in question on or before 30-1-2007, to the purchasers, then the purchasers will pay Rs,400,000 to me.
(c) If, the vendee failed to pay Rs,400,000 on 30-1-2007, then they will pay Rs,800,000 as a penalty as double amount and then possession of the house would be handed over to them.
(d) If the vendor on 30-1-2007, failed to deliver the possession of the house, then he and after his death, his legal heirs will be liable to pay Rs,5000 as rent of the house to the vendees from 1-2-2007 and if the vendee failed to pay the rent or committed any default in making payment of rent, then vendee will reserve their right to get the same through competent Court of law.
(e) If the vendor on 30-1-2007, failed to deliver the vacant possession to vendees, the vendee may recover the possession through Court.
' We the undersigned after reading the above terms and conditions put our signatures. Sd/- Sd/- Amar Lal son of Jurio Mal son of Moto Mal, Witness Aayo Mal Vendee/ No,1 Amar Lal Seller.
43304-8699343-5.
3. Learned counsel Mr. Shahani submits that since the respondent No,1 failed to deliver the possession by 30-1-2007, the remaining amount of Rs,400,000 was forfeited and respondent No,1 was then under the obligation to pay a sum of Rs,5000 as rent to the petitioner from 1st February, 2007. Learned counsel submits that earlier the present petitioner has filed a Suit bearing No, 59 of 2007 for Declaration and Perpetual Injunction, however, the same was withdrawn on 13-1-2009.
Subsequently, the petitioners also filed an application for Illegal Dispossession bearing No,56 of 2007, on 24-10-2007, which was also withdrawn. Hence, ultimately the petitioner has filed an application for ejectment, which is right and efficacious remedy available to them. Learned counsel submits that the respondent No,1 (Jurio Mal) filed application under section 10(3) of the Sindh Rented Premises Ordinance, 1979, on 26th October, 2007, for the first time, Which application was allowed on 18-10-2008, and the respondent No,1 was directed to deposit the rent at the rate of Rs,5000 per month, and was further directed to deposit the future rent with the Nazir of the Court at his own risk and cost. Earlier to this, an application under section 10(3) of the Sindh Rented Premises Ordinance, 1979, was also filed by one Umesh Kumar, which was dismissed on 11-10-2007, as there was no relationship of landlord and tenant existed between Umesh Kumar and the petitioners.
Learned counsel for petitioners further submitted that apart from this categorical admissions in terms an application under section 10(3) of the ,Sindh Rented Premises Ordinance, 1979 of the respondent No,1, the admissions with regard to the relationship of landlord and tenant was also established in terms of paras. 4 and 8 of the written statement filed pursuant to the ejectment application No,1 of 2009, as well as in terms of the agreement in the shape of "Qabooliyat", which document is relied upon by the respondent No,1 himself. Learned counsel for the petitioners submits that application under section 10(3) of the Sindh Rented Premises Ordinance, 1979, was filed without the compliance and requirement, as there was no refusal on the part of the petitioners before invoking the jurisdiction of the rent controller to deposit the rent in Court; the money orders which are placed on record were sent by one Umesh Kumar who is a stranger as far as relationship is concerned. Such money orders were also not addressed at the address of the petitioners and there is no denial of either these money orders or otherwise in any form and even the postman was not produced, as no remarks of refusal by the postman was endorsed. The application under section 10 (3) of the Sindh Rented Premises Ordinance, 1979, filed by the respondent No,1 is totally devoid of such money orders and the respondent No, 1 cannot rely on money orders sent by Umesh Kumar. Learned counsel further submits that the premises was required in good faith for petitioner No,4 and it has been pleaded in the ejectment application as well as affidavit-inevidence. Learned counsel for petitioners has relied upon cases of:--
(i) Allah Din v. Habib reported in PLD 1982 SC 465,
(ii) Syed Arshad Ali Hashmi v. Khursheed Beg= reported in 2001 CLC 960,
(iii) Muhammad Littman Ahmad v. Munir Ahmad and another reported in 1997 CLC 651,
(iv) Hafeezullah v. Suhail Mahmood and 8 others reported in PLD 2001 Karachi 165 and
(v) Mst. Hajiyani Ayesha Bai v. Zahid Hussain reported in PLD 2002 SC 388.
4. Conversely, the respondents denied the allegations and submitted that although the sale-deed was executed by the respondent No,1 in favour of the petitioners, however, since the amount has not been paid in totality and the petitioners still owe a sum of Rs,400,000, therefore, the registered sale-deed has no value in the eye of law and is a nullity. He further contended that since the possession was not handed over to petitioners and it is pleaded in the registered sale-deed that the possession has been handed over, therefore, it is a misstatement of facts and the registered sale-deed cannot be relied upon. Learned counsel further submitted that there is no relationship of landlord and tenant as the total consideration of premises has not been paid, therefore, amount of rent was paid as abandoned caution. It is further contended that initially the petitioner filed Suit No,59 of 2007, for Declaration, Possession and Perpetual Injunction, which suit was dismissed as withdrawn. The property was agreed to be purchased for the extension of Mandir and the petitioners have changed their instance as initially it was purchased for Mandir and then subsequently the application for personal requirement was filed. It is further contended that in cross-examination it has been established that petitioner No, 4 for whom the premises was required is resident of Kandhkot since his forefathers and his entire family is residing there, whereas property in question is situated at Shikarpur, and no justification was shown by the petitioner No, 4 to establish his bona fide. Learned counsel for the respondents further submits that the sale was not completed as the payment was not made. He further submitted that petition was filed after delay of 98 days and as such it suffers from laches. Learned counsel for respondents Nos.1 and 2, has relied upon cases of (i) Shakeel Ahmed and another v. Muhammad Tariq Farogh and others reported in 2010 SCMR 1925, and case of (ii) Sulletnan Mala and others v. Khawaja Muhammad Ramzan and others reported in 2003 YLR 226.
5. Heard the learned counsel and perused the record.
6. It appears that the property was purchased by the petitioners from respondent No,1 against total sale consideration of Rs,1,700,000, out of which only Rs,400,000 are said to be outstanding at the time of registration of the sale-deed. It is admitted in the plaint of Suit No,59 of 2007, that the property was exclusively purchased by the petitioners to extend the space of Mandir, and such suit was withdrawn by the petitioners. The question of payment of balance amount of .Rs,400,000, without prejudice to the rights of the parties is a question which can not shatter the registration of the sale-deed. The registration of sale-deed is not denied. The rights and liability of the buyer and seller are discussed under Transfer of Property Act, 1882. Section 55(4)(b) of the Transfer of Property Act 1882, reads as under:-- "where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyers (any transferee without consideration or any transferee with notice of the non-payment), for the amount of the purchase-money, any part thereof remaining unpaid, and for interest on such amount on part (from the date on which possession has been delivered)."
7. In terms of the aforesaid proviso, if the amount of the sale consideration has not been paid completely, the seller is entitled to a charge upon the property in the hands of the buyer for the amount of the purchase-money, any part thereof remaining unpaid and for interest on such amount or part (from the date of possession has been delivered). Since the rights of the seller/respondent No,1 and petitioners are protected under section 55(4)(b) of the Transfer of Property Act, therefore, I would not like to comment as to the entitlement of Rs,400,000 or regarding the forfeiture of the said amount as it might cause prejudice to either side, however such balance amount allegedly outstanding would not cause any effect on the registered sale-deed, therefore, I do not feel it necessary to comment regarding entitlement and non entitlement of Rs,400,000 as the registered sale-deed would remain intact A and would not be nullified on account of alleged non payment of the balance amount for which rights of the unpaid seller are protected, and it only discuss the modes of recovery and does not cast any shadow on the title of the property.
8. I have perused the entire case file and it has been observed that the petitioners initially have purchased this property for the extension of "Mandir" and there was no necessity shown by any of the petitioner to require the premises for their personal bona fide need, nor any notice was stated to have been issued by them to establish their personal requirement. Moreover, it has come on record that they since years are residing at Kandhkot, and they have also not established as to what influenced them that they have suddenly planned to reside at the subject premise, whereas their rest of the family including their sons, daughters and daughters-in-law are residing at Kandhkot. No doubt it is the prerogative of the landlord to decide the suitability and choice but such prerogative cannot be based on apparent mala fide. In my view the findings of the trial Court and that of the appellate Court as far as personal requirement is concerned are based on correct appreciation of law and fact.
9. As far as the finding of the default is concerned, if not from the date of registration of the sale- deed then at-least in terms of agreement/Qabooliyat dated 10-8-2006, the respondent No,1 was, under the obligation to pay the rent at the rate of Rs,5000 per month w.e.f, 1st February 2007, and for the first time the miscellaneous rent application was filed before the rent controller in October, 2007, i.e, after the delay of eight months and that too without sending money orders in the name of the petitioners thus there is no refusal of refit on the part of petitioners. The money order i.e, relied upon was neither sent by the respondent No,1, who is tenant for it Was sent at the address of the petitioners. The said amount was sent by Umesh Kumar who was not declared to be tenant of the petitioners, Which findings were arrived at in M.R.C. No,16 of 2007, and such findings were not challenged. Even the witnesses who appeared on behalf of respondent No,1 maintained such facts and relationship of landlord and tenant was accepted. The respondent No,1 has not only filed miscellarieous rent case under section 10(3) of the Sindh Rented Premises Ordinance, 1979, without its pre requisite but also filed the same after the delay of eight months, which is admitted as far as facts are concerned.
10. As far as question of laches is concerned, as raised by the learned counsel for respondents, I may observe that in matter of filing of constitutional petition, lapse of time or question of laches is to be examined on equitable principle for the reason that exercise of constitutional jurisdiction is always discretionary with the Court and the relief so granted is always in the nature of equitable relief. It is settled principle that in case the High Court comes to a conclusion that equity leans in favour of the petitioner, the Court must exercise discretion in favour of such party. Issue of delay or laches is to be considered with reference to the facts of each case and no hard and fast rule can be laid down in this behalf. The Court could only be inclined to refuse relief under. Article 199 of the Constitution on the ground of laches where on account of delay;
(a) The opposite party has been induced to alter his position.
(b) Other interest has come into being.
(c) Where a suit brought on the same cause of action would have been barred by limitation.
' On the touchstone of the above principle I have exercised the discretion in favour of the petitioners as no laches are involved.
11. These are the reasons for allowing this petition on the ground of default.