' AZIZ-UR-REHMAN, J.---Through this Constitutional Petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, .1973 the petitioner [hereinafter means the opponent-tenant] has questioned the Judgment dated 19-1-2009 passed by learned IVth Additional District Judge, Karachi East [Annexure 'A' to MoP] whereby the order dated 30-5-2007 passed by the learned IIIrd Rent Controller, Karachi East in Rent Case No.304 of 2001 [Annexure K to MoP] whereby he allowed the ejectment application filed by the respondent No.2 [hereinafter means the applicant-landlord], was upheld and F.R.A. No.89 of 2007 was dismissed however, with no order as to costs.
2. Succinctly the relevant facts leading to the filing of the instant Constitutional Petition are as follows:--
3. Respondent No.2 is the landlord/owner of plot No.KY-36, NaClass No.238, Deh Safoora Tappo Songal, Gulistan-e-Jauhar, Karachi admeasuring 1000 sq.Yds [hereinafter means the demised premises].
4. Petitioner is a company incorporated under the Companies Act/ Companies Ordinance, 1984 having its registered office at Shell House 6, Ch. Khalizzuman Road, Karachi and is engaged in the business of storage, distribution and marketing of petroleum products through its network in Pakistan.
5. By virtue of a Tenancy Agreement/ Deed of Sub-lease dated 8th March, 1980 the petitioner was inducted as a 'tenant' the 'demised premises' @ Rs.2000 Two Thousand only) per month. Per averments, the respondent No.2 thereafter remained abroad therefore, vide letter dated 24-9-1986, the petitioner was asked to deposit the monthly agreed rent in the respondent No.2's account No.14762-8 with Messrs United Bank Ltd, Drig Road Colony Branch, Karachi. Such request made by the respondent No.2 was accepted by the petitioner. Per averments, despite such acceptance, however, the petitioner failed and/or avoided to fulfill his obligations and deposit the agreed monthly rent regularly in th. Bank account notified by the respondent No.2 to the petitioner. As such the petitioner per averments committed 'wilful default' from November, 1990 to May, 1991 (07 months] a such, the petitioner is liable to be evicted from the 'demised premises'.
6. The respondent No.2 thus filed an Ejectment Application under section 15 of Sindh Rented Premises Ordinance, 1979 [hereinafter referred to as SRPO, 1979]. Upon service, the petitioner filed its written statement and denied the 'relationship of landlord and tenant' between the respondent No.2 and the petitioner. In the written statement, it was specifically alleged that one Mst. Begum Anis Ibrahim Nawab widow of late Ibrahim Nawab is now the owner of the 'demised premises' by virtue of oral gift. Further KDA has also transferred the 'ownership' of the 'demised premises' pursuant to such Oral Gift in the name of aforesaid lady on 26-8-1989. Per averments made in the written statement, Mst. Anis Ibrahim/donee had also informed the petitioner regarding 'change of ownership' with direction to the petitioner to credit the rent in her PLS A/C No.220-9 with National Bank of Pakistan, Paposh Nagar Branch, Karachi. According to the petitioner, the petitioner thereafter had started the deposit of rent in the name of Mst. Begum Anis Ibrahim Nawab in her account notified to the petitioner. Later on, the petitioner again received another- letter about change of ownership in favour of S. Mehboob Alam son of Haji Muhammad Hanif and Jamshed Alam son of Haji Muhammad Hanif with a further request to deposit the monthly rent of the 'demised premises' in PLS A/C No.5263-6 with Habib Bank Ltd., Community Centre Branch, PECHS, Karachi maintained by the aforesaid two persons. In the written statement it was further averred that the petitioner thus had started the depositing of monthly rent in the aforesaid PLS A/C No.5263-6.
7. The respondent No.2, upon getting knowledge regarding aforesaid situation, by means of an application under Order I, Rule 10(2), C.P.C., made the new so-called owners: (1) Mst. Begum Anis Ibrahim widow of Muhammad Ibrahim Nawab (2) S. Mehboob Alam son of Haji Muhammad Hanif and (3) Jamshed Alam son of Haji Muhammad Hanif as opponents in the Rent Case No.317 of 1991 (Muhammad Abdul Sattar v. The Pakistan Burma Shell Ltd., and 3 others). The said rent case, nonetheless was got adjourned sine die vide order dated 9-3-2002 passed by VIth Rent Controller, Karachi East.
8. Apart from the above, the respondent No.2 also filed a Civil Suit bearing No.786 of 1994 against the petitioner and the aforesaid three other persons (Muhammad Abdul Sattar v. The Pakistan Burma Shell Ltd., and 3 others) with the following prayers:-- "(1) To hold and declare that the plaintiff is the lawful owner of the premises.
(2) To hold and declare that the execution of gift dated 14-1-1989 is void and without legal validity.
(3). To hold and declare that the plaintiff has not given any authority or power to Muhammad Yousuf son of Late Muhammad Ibrahim Nawab for execution of declaration of gift and thus the alleged General Power of Attorney is forged, fictitious and without legal validity having no right at all.
(4) To hold and declare that the execution of the documents in favour of the defendants Nos.2 and 3, by the defendant No.1 is/are illegal, unlawful and void having no legal validity at all.
(5) To hold and declare that the defendant No.4 is the bona fide tenant of the plaintiff in respect of - property in question and he is duty bound to pay the monthly rent as well as past arrears of the tenement in Question to the Plaintiff". [Underlining is mine].
(6) To restrain defendants Nos.2 and 3, not to Sell or make any commitment for Sale, Transfer, assign or likewise to any person/as they have no right of title over the property in question of whatsoever in nature and they may be further restrained permanently from entering into any Sale Transaction or any kind of documents in respect of the Property in question and for this purpose grant injunction in favour of the plaintiff and against the defendants in the prime interest of justice, fair play and equity and for this very purpose a decree be awarded in favour of the plaintiff and against the defendants above-named to meet the ends of justice.
(7) Any remedy or relief which this Hon'ble Court deems fit and proper in the interest of justice.
9. In order to determine the relationship as 'landlord' and 'tenant' between the respondent No.2 and the petitioner, out of the pleadings of parties to Suit No.786/1994 [Muhammad Abdul Sattar v. Mst.
Anis Ibrahim and 3 others], the following issues were settled:- "(1) Whether the Suit is maintainable?
(2) Whether the plaintiff has no cause of action?
(3)Whether this Court has no jurisdiction to entertain the Suit?
(4)Whether the plaintiff by virtue of the indenture of Oral Gift made on 24-1-1989 gifted the Property in suit in favour of the defendant No. 1?
(5) Whether, defendant No.4 has executed an undertaking vide his letter dated 2-10-1989 to deposit monthly rent in future in plaintiff's Bank Account No.14762-8 with United Bank Lt. Drig Colony Branch? [Underlining is mine].
(6) Whether the defendant No.1 prepared forged and fictitious declaration and confirmation of Oral gift dated 24-1-1989, on the basis of fictitious General Power of Attorney?
(7) Whether mutation by the KDA in favour of the defendants Nos.2 and 3 was on the basis of fictitious Power of Attorney and the Consequences thereupon declaration and confirmation of Oral Gift was unlawful, illegal and void?
(8) Whether the defendant No.4 is still bona fide tenant of the premises in question bearing No.KY- 36 from Naclass No.238 of Deli Safooran Tapo Songle, Taluka and District Karachi and the defendants Nos. I to 3 have no locus standi; [Underlining is mine].
(9) Whether the plaintiff is entitled for relief as claimed?
(10) What should the order be?
10. The above Civil Suit filed by respondent No.2 [viz. Muhammad Abdul Sattar] against one Mst.
Anis Ibrahim, Mehboob Alam, Jamshed Alam and Messrs Pakistan Burma Shell Ltd., [now the petitioner], after recording of evidence of parties, was decreed on 26th February, 2001 in favour of the respondent No.2, holding therein that the respondent No.2 is the 'owner' and the defendant.
No.4 [now petitioner] is the 'tenant' of respondent No.2. Apart from issue No.8, the other very relevant/concerned issue is issue No.5 which in fact is a deciding issue as far as deposit/payment of rent to the Landlord/respondent No.2 is concerned.
11. Upon decision inter alia of issues Nos.5 and 8 in favour of respondent. No.2, the petitioner, no doubt, is the tenant of respondent No.2 under Deed of Sub-lease dated 8-11-1996. Seemingly, the existence of 'relationship as landlord and tenant' between the respondent No.2 and the petitioner stands finally determined. Despite aforesaid judgment and decree passed against the petitioner [i.e. Pakistan Burma Shell Ltd., through its Managing Director and others], the petitioner, either failed and/or avoided to pay the agreed rent to respondent No.2 in respect of. The 'demised premises'. As far as petitioner is concerned, it is also worth to mention herein that such judgment and decree dated 26-2-2001 and 3-3-2001 respectively, passed by IXth Sr. Civil Judge, Karachi East, have not been challenged by the petitioner. The respondent No.2, under circumstances, constrained to file fresh Rent Case No.304 of 200.1 [Muhammad Abdul Sattar v. Pakistan Burma Shell Ltd.,] before learned IIIrd Rent Controller Karachi East.
12. Upon service, the petitioner filed their written statement wherein besides denial of allegations also raised some Preliminary objections viz-a-viz maintainability of the ejectment application under section 15 of SRPO, 1979. Per assertions, the Rent Case has been filed in the name of wrong company; the owners viz Mehboob Alam, Jamshed Alan' who contested the Civil Suit bearing No.786/1994 (filed by respondent No.2 in the Court of IXth Sr. Civil Judge (East) Karachi] have not been made parties in the Rent Case No.304 of 2001. The matter/dispute regarding 'ownership' between the respondent No.2 and Mehboob Alam and Jamshed Alam is still pending adjudication in Civil Appeal No.48 of 2001. As such they are necessary parties in the Rent Case. The landlordship and/or ownership of respondent No.2 regarding and over the 'demised premises' is yet to be determined as such the fresh rent case as framed and filed is not maintainable law.
13. Moreover, in the written statement, it was further alleged that the respondent No.2 by virtue of indenture of oral gift made on 24-1-1989 has already gifted the 'demised premises' in favour of Mrs. Begum Anis Ibrahim Nawab widow of late M. Ibrahim Nawab. The 'demised premises', per averments in the written statement had already been mutated in the name of Mrs. Begum Anis Ibrahim Nawab widow of Late M. Ibrahim Nawab by KDA vide Transfer Order dated 26-8-19$9. Upon getting knowledge about change of ownership and direction regarding deposit of rent, the petitioner thereafter, per assertion, had started the deposit of rent in PLS A/C No.240-9 NBP, Paposh Nagar Branch, Karachi. The rent, per averments, has already been paid to the new owner (s) upto 31-11-1990. The petitioner, thereafter, per averments, received another letter dated 30-10-1990 about the 'change of ownership' in the name of Mehboob Alam son of Haji Muhammad Hanif and Jamshed Alam son of Haji Muhammad Hanif with a request that the rent be credited in PLS A/C No.6563-6 with HBL, Community Centre Branch, PECHS, Karachi.
14. In the written statement it was further averred, that against the judgment dated 26-2-2001 and decree dated 3-3-2001 passed in Civil Suit No.786/1994 [Muhammad Abdul Sattar son of Late M.
Yousuf v. Mst. Anis Ibrahim widow of late Ibrahim Nawab], Mehboob Alam and Jamshed Alam have already preferred Civil Appeal bearing No.48/2001 before the Court of IInd Additional District Judge, Karachi East which per petitioner's assertion is pending adjudication. The petitioner, however, is regularly depositing the rent in court in MRC No.235/2006. According to the petitioner the matter in dispute has not yet attained finality regarding 'ownership' and/or 'relationship' of 'landlord' and 'tenant' between the petitioner and respondent No.2. In the written statement the allegations of any 'default'/'wilful default' in terms of section 10(1) of SRPO. 1979 or otherwise, w.e.f. 13-3-2001 were specifically denied. Per petitioner's stand no 'cause of action' whatsoever against the petitioner has ever arisen in favour of respondent No.2 as such the ejectment application besides incompetent in law is liable to be dismissed with cost.
15. In view of divergent pleas raised by the parties in Rent Case No.304/2001, the learned IIIrd Sr. Civil Judge and Rent Controller, Karachi, East, out of the pleadings settled the following points for determination:--
(1) Whether the relationship of landlord and tenant exists between the applicant and Opponent?
(2) Whether the Opponent has committed wilful default in payment of rent?
(3) What should the order be?
16. Parties in order to prove their 'pro' and 'contra' contentions led evidence. The. Attorney of respondent No.2 viz. Muhammad Amir son of Muhammad Abdul Sattar filed his 'affidavit-in- evidence' and also produced in his 'deposition' copies of registered Sub-lease deed dated 8-11- 1980, Letter of respondent No.2 dated 24-9-1986, Application jointly filed in R.C. No.317/1991 along with it's order dated 6-11-1999, Judgment and Decree passed by IXth Sr. Civil Judge and Rent Controller Karachi, East, in Civil Suit No.786/1994 on 26-2-2001 and 3-3-2001 respectively and copy of registered irrevocable general power of attorney dated 10-5-1994. After 'cross-examination of the respondent No.2's attorney, advocate for the respondent No.2 closed his side of evidence.
17. Thereafter, Mr. Syed Abbas Raza, Retail Legal Manager of the petitioner filed his 'affidavit-in- evidence' and also produced in his deposition copy of written statement already filed in R.C.
No.317/1991 [Muhammad Abdul Sattar v. Pakistan Burma Shell Ltd. And 3 others], copy of 'declaration and confirmation' of oral gift deed dated 24-1-1989, transfer order of gift deed dated 26-8-1989, letter of Mst. Anis Ibrahim to the petitioner, transfer order dated 22-10-1990 and lattter of authority. After 'cross-examination' of defence witness the petitioner's side was also closed.
18. Upon hearing learned counsel for the parties, the learned IlIrd Sr. Civil Judge and Rent Controller Karachi, East, was pleased to allow the ejectment application under section 15 of SRPO, 1979. The operative part of the order dated 30-5-2007, under point No.3, reads as follows:- "For the reasons, discussion and findings under points Nos.1 and 2 hereinabove after full appreciation of evidence and scrutiny of documents on record, 1 hereby allow the application under section 15 of Sindh Rented Promises Ordinance, 1979 with direction to the Opponent to handover vacant peaceful possession of the demised premises Plot No.KY-36, Naclass No.238, Deh Safooran TapoSongal, Gulistan-e-Jauhar, Karachi admeasuring 1000 sq.Yds to the applicant within 90 (ninety] days of the order hereof. "
19. The petitioner feeling aggrieved by order dated 30-5-2007 filed F.R.A. No.89/2007 [Messrs Shell Pakistan Ltd. v. Muhammad Abdul Sattar son of Muhammad Yousuf] before the Court of IVth Addl.
District Judge, Karachi East. The learned of IVth Addl District Judge, Karachi East, after hearing of arguments also was pleased to dismiss the aforesaid F.R.A. No.89/2007. The operative part of the judgment dated 19-1-2009 passed by IVth Addl. District Judge, Karachi, East, reads as follows:-- "These being the case-laws of the honourable Supreme Court of Pakistan and to conclude that the appellants was not diligent in securing the copy after 9-7-2007; and by not depositing the cost on 27-2007, had wasted full 62 days. Therefore from the above discussion it is clear that the instant first rent appeal was clearly time barred under the law of limitation.
' The order passed by the learned Rent Controller does not call for interference, therefore, the appeal is accordingly dismissed. However, I allow three months time to the appellants to handover vacant possession of the demised premises to the respondent, on their failure it will not be necessary to issue any prior notice to the appellants if any execution application filed. The appeal is dismissed with no orders as to costs."
20. Being aggrieved by the judgment dated 19-1-2009 passed by IVth Addl. District Judge, Karachi East in 1st Rent Appeal No.89 of 2007 whereby order dated 30-5-2007 passed in Rent Case No.304 of 2001 [Muhammad Abdul Sattar v. Messrs Pakistan Burma Shell Ltd.] by respondent No.3-IIIrd Sr.
Civil Judge and Rent Controller Karachi, East, whereby he allowed the ejectment application under section 15 of SRPO, 1979 filed by respondent No.2 was upheld and resultantly F.R.A. No.89/2007 filed by the petitioner was dismissed however, with no order as to cost.
21. On 9-12-2013 when finally the above matter came-up before this court, I heard Mr. Arshad Hussain, learned counsel for the petitioner and Mr. Khalid Javed, learned counsel for respondent No.2 and with their able assistance scanned available record before me.
22. Mr. Arshad Hussain, learned counsel for the petitioner vehemently contended that the orders/judgments passed by both the courts below are erroneous and have been passed without properly appreciating the evidence/materials on record in its true perspective. Learned counsel further argued that the owners of the 'demised premises' are Mehboob Alam and Jamshed Alam who were parties to Civil Suit No.786/1994 [Muhammad Abdul Sattar v. Mst. Anis Ibrahim and 3 others] filed in the Court of IXth Sr. Civil Judge and Rent Controller, Karachi East and in Rent Case No.317/1991 [Muhammad Abdul Sattar v. The Pakistan Burma Shell Ltd. And 3 others] filed in the Court of VIth Rent Controller Karachi East but the respondent No.2, in his own wisdom has not made them parties to the present Rent Case No.304/2001 [Muhammad Abdul Sattar v. Messrs Pakistan Burma Shell Ltd.] as such the instant fresh rent case is not maintainable in law.
23. According to the learned counsel since at the time of filing of fresh rent case the matter of 'ownership of landlord and tenant relationship' was still pending adjudication before the District and Sessions Judge East, Karachi in Civil Appeal No.48 of 2001 as such the respondent No.2 had/has no 'cause of action' to file fresh Rent Case No.304 of 2001. Learned counsel also urged that respondent No.2 had also filed R.C.No.317/1991 in the Court of Vth Sr. Civil Judge/Rent Controller East Karachi but nonetheless later-on, by consent, it was adjourned sine die. In view of this position, per learned counsel, the instant Rent Case bearing No.304/2001 is also not maintainable. In this regard Mr. Arshad Hussain, learned counsel for petitioner made reference to order dated 9-3-2002 whereby the. Rent Case No.317/1991 [Muhammad Abdul Sattar v. The Pakistan Burma Shell Ltd and 3 others] was adjourned sine die. The relevant part of Order dated 9-3-2002, passed by the VIth Sr.
Civil Judge and Rent Controller, Karachi, East, reads as follows:-- "This is an application filed on behalf of the opponents 3 and 4 therein that the proceedings of this case be stayed till the disposal of the Civil Appeal No.48/2001 which is pending before the honourable District and Sessions Judge Karachi East against the judgment and decree passed in Civil Suit No.786/I994. In the alternate he has also prayed that the proceedings be adjourned sine die. Notice of this application was given to the counsel for the applicant, he has made statement that "without prejudice to the rights of the applicant, the court may order for sine die in the matter". [Underlining is mine].
' Hence in view of the said position the matter is adjourned sine die and if the Appeal No. 48/2001 is dismissed, then the applicant can file the application for Re-start of The proceedings. Order accordingly."
24. Learned counsel further contended that neither the respondent No.2 is landlord' nor 'owner' of 'demised premises'. Per Mr. Arshad Hussain, by virtue of oral gift dated 24-1-1989 the 'demised premises' has already been gifted by respondent No.2 in favour of Mrs. Begum Anis Ibrahim Nawab widow of Late M. Ibrahim Nawab. Thereafter, per learned counsel the 'demised premises' was also transferred in favour of the said landlady on 26-8-1989 by KDA. The donee viz. Mrs. Begum Anis Ibrahim Nawab, thereafter while informing the petitioner about change of ownership and had also directed the petitioner for crediting the rent in her PLS A/C No.204-9 with NBP, Paposh Nagar Branch, Karachi. The petitioner per request deposited/paid, no doubt, the rent to the new owner i.e. Up-till 31-11-1990 when, the petitioner again received another letter dated 23-10-1990 about the 'change of ownership' in the name of Mehboob Alam and Jamshed Alam wherein again the petitioner was requested for crediting the rent in PLS A/C No.5965-6 with HBL, Community Centre Branch, PECHS, Karachi i.e. In favour of the aforesaid two persons.
25. Mr. Arshad Hussain, learned counsel for petitioner further argued that against the judgment and decree dated 26-2-2001 and 3-3-2001 respectively, passed by IXth Sr. Civil Judge and Rent Controller, Karachi East the alleged owners/landlords namely Mehboob Alam and Jamshed Alam upon feeling aggrieved have already preferred Civil Appeal No.48/2001 (Mehboob Alam and another v. M. Abdul Sattar and 2 others) in the court of IIIrd Addl. District Judge Karachi East. Mr. Arshad Hussain, learned counsel for petitioner strenuously argued that no 'default' and/or 'wilful default' in terms of section 10 subsection (1) of SRPO, 1979 or otherwise, as alleged. By respondent No.2, was ever committed by the petitioner. Lastly, no 'cause of action' per learned counsel has ever arisen against the petitioner in favour of respondent No.2 as such the fresh Rent Case No.304 of 2001 (Muhammad Abdul Sattar v. Messrs Pakistan Burma Shell Ltd., besides incompetent in law is misconceived thus liable to be dismissed with costs.
26. In support of his contentions Mr. Arshad Hussain, learned counsel for petitioners placed reliance on the following case-laws:--
(a) Mirza Muhammad Ishaq and others v. Additional Settlement Commissioner Land and others (2005 SCMR 973)
(b) Shujahat Hussain v. Muhammad Habib and another (2003 SCMR 176)
(c) Mst. Enid Najniuddin and 2 others v. Surriya Mall and others [2011 CLC 1862]
(d) Ellahi Bakhsh and others v. Ahmad Bakhsh and others (2012 MLD 1308)
(e) Safdar Bugum and 2 others v. Amir Ali Tabrezi (1985 CLC 836)
(f) Mst. Noori and another v. Owl= Muhammad (1989 CLC 797)
(g) West Pakistan Industrial Development Corp., Karachi v. Aziz Qureshi (PLD 1973 SC 222)
(h) Messrs A. C.E. Enterprises through Khalid Pervez v. Addl. District Judge, Lahore and others (1987 SCMR 1174)
(i) Mukhtiar Ahmed v. IIIra Addl. District Judge (2004 MLD 713)
(j) Civil Aviation Authority v. Messrs Providence Aviation !Pvt.) Ltd. (2000 CLC 1722)
(k) Kundal Khan v. Agha Jan (PLD 1990 PESHAWAR 21)
(1) Afzal Ahmed Qureshi v. Mursaleen (2001 SCMR 1434)
(m) Mst. Ghnlam I3ibi v. Maqsood Ahmed (2001 MLD 1530)
27. In contra, Mr. Khalid Javed, learned counsel for respondent No.2 vehemently contended that impugned Judgments/Orders passed by both Courts below are valid/proper and in accordance with law. The same having been passed after due application of judicial minds. Per Mr. Khalid Javed the Ist Rent Appeal No.89/2007 (Messrs Shell Pakistan Ltd v. M. Abdul Sattar), besides actually barred by limitation was otherwise also meritless. He further contended that the respondent No.2, of course, is owner/landlord of the 'demised premises' bearing No.KY, Naclass 238, situated in Deh Safooran, Tapo Songal, KDA Scheme No.36 measuring 1000 sq.Yds having been admittedly rented out to the petitioner vide Deed of Sub-lease dated 8-11-1980 at agreed monthly rent of Rs.2000 [Rupees Two Thousand only] per month. According to Mr. Khalid Javed, the landlord was in Saudi Arabia, therefore, the petitioner was asked through letter dated 24-9-1986 to deposit the rent in his bank's account maintained with UBL. In response, the petitioner though agreed but failed and/or avoided to deposit the agreed rent in the respondent No.2's bank's account. Per learned counsel for the respondent No.2, when the landlord/owner of the 'demised premises' came back to Pakistan from Saudi Arabia he then found that since November, 1990 to May, 1991 no rent has been deposited in his bank's account, whereafter respondent No.2 filed Rent Case No.317/1991 against the petitioner on the ground of 'wilful default'.
28. During pendency of the rent case, respondent No.2 came to know that the 'demised premises' has been gifted allegedly by one Muhammad Ibrahim Nawab/alleged attorney of respondent No.2 to one Mst. Begum Anis Ibrahim Nawab widow of Late Ibrahim Nawab who in turn allegedly has sold/gifted the 'demised premises' onward to two other persons viz. Mehboob Alam and Jamshed Alam. Under circumstances, the respondent No.2 was constrained to file Civil Suit No.786/1994 [Muhammad Abdul Sattar v. Mst. Anis Ibrahim and 3 others] for cancellation of gift deed dated 24- 1-1989 allegedly executed through so-called attorney viz. Muhammad Ibrahim Nawab son of Late Muhammad Yousuf on the basis of a forged power of attorney. In Civil Suit No.786/1994 inter alia it was also prayed by the respondent No.2 that the petitioner be declared as his tenant. Per learned counsel, the said civil suit has already been decreed 'as prayed' vide judgment dated 26-2-2001 and decree dated 3-3-2001.
29. The aforesaid judgment and decree, no doubt have been challenged but only by Mehboob Alam and Jamshed Alam through 1st Civil Appeal No.48/2001. As far as Mst. Anis Ibrahim Nawaly is concerned, she has not filed any appeal against the judgment and decree passed in Civil Suit No.786/1994 amongst others against her. Per learned counsel as far as judgment and decree against Mst. Anis Ibrahim Nawab is concerned, the same has already attained finality and now cannot be questioned on any ground whatsoever. Mr. Khalid Javed, learned counsel for respondent No.2 further contended that regarding forgery in the gift deed allegedly executed in favour of Mst.
Anis Ibrahim Nawab, the respondent No.2's Suit No.786/1994 has already been decreed as prayed.
As such the claim of subsequent vendees/donees based on the oral gift in favour of Mst. Anis Ibrahim Nawab in view of judgment and decree passed in favour of respondent No.2 is bogus and of no legal effect inter alia for the reason that Mst. Anis Ibrahim Nawab has not challenged the judgment and decree passed in Civil Suit No.786 of 1994.
30. Learned counsel for respondent No.2, further contended that in view of the judgment and decree passed in Civil Suit No.786/1994 respondent No.2 filed fresh Rent Case No.304/1991 inter alia on the ground of 'wilful default' as the petitioner despite aforesaid judgment and decree, failed and/or avoided to pay agreed rent to respondent No.2 from 13th March 2001 onward. Learned counsel for respondent No.2 further contended that even Civil Appeal No.48/2001, filed by one Mehboob Alam and Jamshed Alam against the judgment and decree passed in Suit No.786 of 1994 have already been dismissed by the learned 1st Appellate Court on 30-1-2006.
' Per learned counsel, notwithstanding observations of learned IIIrd Addl. District Judge Karachi East, respondent No.2 is still a 'landlord' in terms of Section 2(f) of SRPO, 1979 and as such he is entitled to receive the rent in respect of the 'demised premises'. Mr. Khalid Javed further submitted that admittedly the petitioner was inducted in the 'demised premises' as a tenant on 8-11-1980. The petitioner, per learned counsel now cannot escape and/or deny the relationship of 'landlord' and 'tenant' by any ground whatsoever.
31. Since, in evidence it has come on record that the petitioner is depositing the rent in the name of alleged donees/vendees namely Mehboob Alam and Jamshed Alam and others in MRC No.235/2006, and that too after passing of judgment and decree passed in Civil Suit No.786 of 1994 in favour of respondent No.2. Per learned counsel, the petitioner has thus committed 'wilful default' as such is/was liable to be ejected from the 'demised premises'.
32. Mr. Khalid Javed, learned counsel for respondent No.2 in support of his contentions placed reliance on the following case-laws:--
(a) Abdul Malik v. Qaiser Jehan (1995 SCMR 204)
(b) Fazal Illahi v. Gul Khan Ahmed Qureshi (1997 SCMR 945)
(c) Raj Muhammad and 11 others v. Haji Muhammad Zareen and 3 others (1980 SCMR 339)
(d) Mst. Amina Begum and others v. Ghulam Dastagir (PLD 1978 SC 220)
(e) Alah Din v. Habib (PLD 1982 SC 465)
(f) Mrs. Zarina Khawaja v. Agha Mehboob Shah (PLD 1998 SC 190)
(g) Irshad Ahmed and others v. Alla Ditta and others (1998 SCMR 948)
(h) Saifuddin and another v. Sr. Civil Judge/Rent Controller VIII Karachi South and 7 others (2007 SCMR 128)
(i) Amin and others v. Hafiz Ghulam Muhammad and others (PLD 2006 SC 549)
(j )Jamila Khatoon and another v. Tajunissa and another (PLD 1984 SC 208)
33. Heard learned counsel for the parties. Perused impugned judgment/order and also have gone through the evidence adduced by the parties minutely in conjunction with their pleadings and documents placed on record.
34. From the evidence of parties, it is quite evident that, the petitioner was inducted in the 'demised premises' in their capacity as a 'tenant' through tenancy agreement/deed of sub-lease dated 8-3- 1980. In this regard inter alia reference can be made to para 3 of the Memo of Petition [reference page 3 of the court file) which reads as follows:-- "3. That pursuant to the above said lease, the respondent No.2 in the year 1980 rented out the demised premises to the petitioner (previously known as Pakistan Burma Shell) vide 'sub-lease dated 8-11-1980, on the monthly rent of Rs.2000 (rupees two thousand only). The petitioner after making huge investment started running petrol pump and submitting monthly rent to the respondent." [Underlining is mine].
35. Before to proceed further it would be worthwhile to refer to the provisions i.e. 2(f) (i) and (j) of section 2 of SRPO, 1979 which read as follows:-- "2. Definitions:-
(f) "Landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises.
(i) "Rent" includes water charges, electricity charges and such other charges which are payable by the Tenant but are unpaid.
(j) "Tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:-
(ii) any person who continues to be in possession or occupation of the premises after the termination of his tenancy heirs of the Tenant in possession or occupation of the premises after the death of the Tenant; "
36. Under the SRPO 1979, the definition of ' landlord' is provided in section 2(f) which means any person who is 'owner' or entitled to receive the rent of the 'demised premises'. Thus any person who is entitled in law to receive the rent does become a 'landlord' and can file an ejectment case under section 15 of SRPO, 1979.
37. It is also relevant at this stage to refer to the 'affirmative findings' on issues Nos.5 and 8 settled in Suit No.786 of 1994 [Muhammad Abdul Sattar v. The Pakistan Burma Shell Ltd. And 3 others] which was decreed on 26-2-2001. The findings given on issues Nos.5 and 8 read as follows:-- "ISSUE No.5. The defendant No.4 in his evidence has admitted in chief that suit property was rented to it by plaintiff under sub-lease Deed and that defendant No.1, served a letter dated 18-10-1990, intimating it that suit property has been transferred to defendants Nos.2 and 3 as such rent was paid to them. In cross the witness had admitted that rent was paid to plaintiff till he was owner of property. These facts constitute that defendant No.4 remain depositing rent in account of plaintiff' till 1990. Issue answered in affirmative. [Underlining is mine] ISSUE No.8. The defendant No.4, admittedly is tenant/Sub-Lessee in respect of suit property therefore he is deemed to be bona fide tenant of plaintiff: However, the defendant No.4, bonafidely had been paying rent to defendants Nos.], 2 and 3. Therefore, plaintiff is not entitled to claim any arrears of rent from defendant No.4. [Underlining is mine].
38. Manifestly in view of the above, the petitioner is tenant of respondent No.2 as such I am of the opinion that the petitioner is/was liable to pay rent to the respondent No.2 in respect of 'demised premises'.
39. Whether the petitioner has committed any 'wilful default' in payment of rent or not, I have not only gone through the relevant covenant viz-a-viz payment of rent made by the sub-lessee with the lessee under the deed of sub-lease dated 8-3-1980 but also seen section 10 subsection (1) of SRPO, 1979. For proper answer the relevant clauses i.e. I (a) (b) from the deed of sub-lease dated 8th March, 1980 and section 10 subsection (1) of SRPO, 1979 are respectively reproduced herein below:-- "1 (a) To pay one year's advance rent @ Rs.2,000 per month after registration of the above lease deed from 15-5-1980 to 14-5-1981.
(b) To pay the monthly rental of Rs.2,000 from 15-5-1981 to 14-51990 and Rs.2,500 from 15-5-1990 to 14-5-2000 in the first week of every following month."
"10. Payment of rent.---(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due."
40. The aforesaid clause (b) if, read with in juxtaposition of Section 10 subsection (1) of SRPO, 1979 then the petitioner was/is under legal obligation to pay the rent by 13-3-2001 w.e.f, 26-2-2001 when Suit No.786 of 1994 was decreed. It is worth to note that Suit No.786/1994 was decreed on 26-2-2001 however, the petitioner failed and/or avoided to tender the agreed rent to the respondent No.2 by 13th March, 2001 or even thereafter as such in my considered view the petitioner has committed wilful default' in payment of monthly rent.
41. As far as the question of limitation is concerned, from the record it appears that the Rent Case No.304 of 2001 was allowed on 30-5-2007. Application for certified copy was filed on 31-5-2007. Fee was also estimated on 31-5-2007, however, the same was deposited on 4-7-2007. From record, it reflects that copy was prepared and made ready for delivery on 9-7-2007 but the stamp was supplied on 23-7-2007 and copy was taken/delivered on the same day. Per record, Ist Rent Appeal No.89/2007 [Messrs Shell Pakistan Ltd. v. M. Abdul Sattar] was filed on 8-8-2007 [i.e. After 15 days of receipt of certified copy]. Evidently, the fees was estimated on 31-5-2007 but the same was deposited on 4-7-2007 i.e. After 33 days [Note: Court was closed for summer vacations from 1-6- 2007 to 30-6-2007 and re-opened on 2-7-2007] but cost was not deposited on the first opening day i.e. 2-7-2007. Rather cost was deposited on 4-7-2007 and stamp, per record was supplied on 23-7-2007 and on the same day certified copy was delivered. [Thus there was further delay of 13 days after the copy was made ready]. The 1st Rent Appeal, it is worth to note under law is to be filed within 30 days but the petitioner without any explanation in the instant case wasted 62 [Sixty two] days.
42. The petitioner under the aforesaid scenario was/is not entitled for exclusion of summer vacations i.e. From 1-6-2007 to 30-6-2007. As the petitioner did not deposit the cost on the first opening day after summer vacations i.e. 2-7-2007. The petitioner without any 'plausible explanation' and, of course in his own wisdom in a negligent manner and/or without taking reasonable and proper steps has wasted 62 days in obtaining the certified copy. Such inordinate delay without any 'plausible explanation in any event cannot be regarded as 'requisite time' within the scope of section 12 subsection (2) of Limitation Act [IX of 1908]. Thus the same in my view could not be excluded from computation as being 'requisite time' in terms of section 12 subsection (2) of the Limitation Act [IX of 1908].
43. On this aspect reference can be mad to:--
(a) AIR 1922 P C 352 [Pramatha Nath Roy v. Lee) wherein it was observed as follows: "that in determining what is the requisite time referred to in section 12, subsection (2) of the Limitation Act, the conduct of the appellant must be considered, and "no period can be regarded as requisite under the Act, which need not have lapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order".
(b), AIR 1928 PC 123 [Jeji Bhoy N. Surty v. T. S. Chettyar] wherein it was observed as follows: "'The word 'requisite' is a strong word; it may be regarded as meaning something more than the word 'required'. It means 'properly required'. It means 'properly required' and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond theprescribed period is due to his default.
' But for that time which is taken up by his opponent in drawing up the decree, or by the officials of the Court in preparing and issuing the two documents, he is not responsible."
44. Likewise as regards 'requisite time' referred to in section 12 subsections (2)(1) of Limitation Act [IX of 1908], reliance can be placed on the following cases i.e.:
(a) Mst. Jamila Khatoon and another v. Mst. Tajunissa and others (PLD 1984 SC 208). The relevant observations made therein read as under:-- "7. The arguments that rule 331 was not complied with inasmuch as the copy prepared by the office was not put on the notice board is untenable and was rightly rejected by the learned Single Judge. This rule only elates to copies ready for delivery to be included in a list on the notice board and since prior on 28-11-1975 the copy was not ready for deliver for want of stamp, it could not be included in the list under this rule. Otherwise apparently the appellants seems to have been aware of the aforesaid date when he supplied the stamps to the office, that the copy will be ready for delivery as soon as certification was made thereon, which is clear from the fact that he received the delivery of the copy within three days on 1-11-1975. It has been held by this Court in the case of Fateh Muhammad v. Muhammad Qadir Bakhsh (I) that time requisite for obtaining copy means only the interval between the date of application for supply of copy and the date when it is ready for delivery, but even during this interval due diligence on the part of the litigant is required by law and no delay unless such as was caused by circumstances over which he has no control and which could not by due diligence by avoided can from part of time "requisite" for obtain the copy."
[Underlining is mine].
(b) Feteh Muhammad and others v. Malik Qadir Bakhsh [1975 SCMR 157) wherein it was held as under: "It is well settled that the time requisite for obtaining copy of order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during this interval, due diligence on the part of the litigant is required by law, and no delay, unless such as was caused by circumstance over which he had no control and which he could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy. The time between the date on which he the copy is ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of the time "requisite" for obtaining a copy."[Underlining is mine].
45. As far as question of title is concerned, the same has no relevancy in the Rent Proceedings particularly when the relationship of landlord and tenant is admitted and/or established.
Significantly, in the instant case existence of relationship between the petitioner [tenant] and respondent No.2 [landlord] has been proved through sufficient evidence. Upon execution of tenancy agreement/deed of sub-lease dated 8-3-1980, the petitioner is not justified to place the petitioner in a nuisance and/or inequitable situation by taking advantage of possession obtained by him in his capacity as a tenant. Once the relationship of 'tenant' and 'landlord' is established then during the currency of the tenancy agreement, the tenant, would be deemed estopped from challenging the entitlement of landlord regarding receipt of rent or otherwise because under the 'doctrine of landlord and tenant relationship' once a tenant always remains a tenant. Besides, under law one cannot approbate and reprobate.
46. As far as contention of Mr. Arshad Hussain, learned counsel for petitioner viza-viz observations i.e. "as discussed above the property belongs to Government. It is the matter between respondent No. I/plaintiff and Government, so in such situation, no one can claim right or title over the property in question, and it is purely function of the Government to allot the same to anyone or to extend the lease" made by learned IIIrd ADJ, Karachi East while dismissing the Civil Appeal No.48 of 2001 (Mehboob Alanm and Jamshed Alam v. Muhammad Abdul Satter, Mst. Anis Ibrahim, Pakistan Burma Shell Ltd.) is concerned, the same being not part of the decree passed on 2-2-2006 in Civil Appeal No.48 of 2001 do not seem binding. For ready reference and convenience purpose the operative part of decree passed in Civil Appeal No.48 of 2001 runs as follows:-- "The appellants in present situation are not competent to retain the possession of the property in question hence their status is not more than encroacher/trespasser therefore their appeal is without merits and the same stands dismissed. Parties are left to bear their own cost."
47. As far as the contention of Mr. Arshad Hussain, learned counsel for the petitioner regarding sine die adjournment of the earlier Rent Case No.317 of 1991 (Muhammad Abdul Sattar v. The Pakistan Burma Shell Ltd. And 3 others) is concerned, the same under circumstances of the case is misconceived. The earlier rent case, no doubt, was adjourned sine die but without prejudice to the rights of the respondent No.2. The proceedings of earlier rent case in terms of order dated 9-3- 2002 [reproduced hereinabove] indeed, upon dismissal of Appeal No.48 of 2001, can be revived/re- started but such revival in view of judgment and decree passed in Suit No.786/1994 particularly findings on Issues Nos.8 and 10 would not have served any useful purpose. In view of this position, the IInd Rent Case No.304 of 2001 based upon fresh cause of action in my considered view besides properly filed is maintainable in law.
48. The existence of relationship between the petitioner and respondent No.2 as 'landlord' and 'tenant' and/or default/ wilful default' in payment of monthly rent by the petitioner is/are manifestly clear from the record available, therefore, the concurrent judgments passed by two learned courts below are not open to any interference, much-less under the exercise of Constitutional jurisdiction.
49. The case-laws cited by learned counsel for the petitioner beside distinguishable are not relevant in the facts and circumstances of the instant case.
50. The upshot of the above discussion is that the concurrent judgments passed by the courts below warrant no interference. Under circumstances, the present petition is devoid of any merits thus dismissed however, with no order as to costs. The petitioner, nonetheless is allowed three (03) months' time to vacate and hand over peaceful possession of the 'demised premises' to respondent No.2 from today but subject to regular payment of monthly rent and utility bills if any. In case, the 'demised premises' is not vacated and its 'vacant peaceful possession' is not handed over to the respondent No.2 then upon expiry of three (3) months from today, the learned Rent Controller, shall issue writ of possession without notice to the petitioner through police aid.
' The petition stands dismissed along with listed application.